**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FCC File No. 0000725954      |
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| Metropolitan Transit Authority   | ** |                              |
| of Harris County, Texas, Request |    |                              |
| For Modification of Private Land | *  |                              |
| Mobile Radio Station KRX666 and  | *) |                              |
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| Nextel of Texas, Inc., Request   |    |                              |
| for Waiver of Intercategory      | *  |                              |
| Sharing Freeze in the            | *) |                              |
| 806-821/851-866 MHz Bands and    | ** |                              |
| Section 90.617 of the            |    |                              |
| Commission's Rules               | *  |                              |
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**ORDER**

**Adopted: July 6, 2005 Released: July 7, 2005**

By the Chief, Public Safety and Critical Infrastructure Division,
Wireless Telecommunications Bureau:

1.  *Introduction.* In this *Order* we address an application filed by
    Metropolitan Transit Authority of Harris County, Texas (Metro),[^1]
    seeking authorization to modify Metro's Station KRX666, Houston,
    Texas, and an accompanying request for waiver of the Commission's
    Rules filed by Nextel of Texas, Inc. (Nextel).[^2] Specifically,
    Metro wishes to exchange its ten current channels located in the
    "Upper 200" segment of the 800 MHz band in the Houston area for ten
    channels licensed to Nextel in the band segment immediately below
    the Upper 200 segment. In order to effectuate this voluntary
    relocation agreement Nextel seeks a waiver of the Commission's
    eligibility rules to permit Metro, an Industrial/Land Transportation
    (I/LT) eligible, to use one Specialized Mobile Radio (SMR)
    frequency: 858.6875 MHz. Nextel also proposes to assign to Metro
    five Business channels and four I/LT channels that are currently
    "short-spaced" to co-channel licensees.[^3] For the reasons
    discussed below, we grant the Nextel waiver request and order the
    processing of Metro's application for modification of license.

2.  *Discussion*. At the time Metro filed its modification application,
    it would not have been permitted to use Business channels or SMR
    channels because the Wireless Telecommunications Bureau (WTB) had
    imposed a freeze on "intercategory sharing" in April 1995, and
    because the Commission eliminated intercategory sharing of SMR
    channels altogether in December of that year.[^4] However, on July
    8, 2004, the Commission consolidated the Business and I/LT
    categories.[^5] Now, an applicant eligible for use of Business
    channels may apply for I/LT channels and vice-versa. Thus Metro is
    eligible to use both the five Nextel Business channels and the four
    Nextel I/LT channels requested in Metro's application for
    modification of license. Therefore, that portion of the waiver
    request seeking leave for Metro to use Business category channels is
    moot. The only remaining waiver necessary to effect the parties'
    channel exchange is a waiver of Section 90.617(d)[^6] of the
    Commission's Rules to permit Metro to use the SMR channel.

3.  We may grant a waiver of a Commission rule (a) when the underlying
    purpose of the rule would not be served by application to the
    instant case and a grant of the waiver is in the public interest,
    or (b) when in view of the unique or unusual circumstances of the
    case, application of the rule would be inequitable, unduly
    burdensome or contrary to the public interest, or the applicant has
    no reasonable alternative.[^7]

4.  We find that the underlying purpose of Section 90.617(d) of the
    Commission's rules would not be served by strict application of the
    rule here. Section 90.617(d) specifically states that the channels
    listed in that subsection are available only to applicants in the
    SMR category. The waiver sought by Nextel would enable it to use SMR
    spectrum to relocate an I/LT operator. When the Commission adopted
    Section 90.617(d) of the Rules, it sought to avoid a potential
    scarcity of radio frequencies for Public Land Mobile Radio (PLMR)
    use by stopping the then prevailing practice of incorporating
    Business and I/LT channels into SMR systems.[^8] However, in the
    instant channel exchange, a PLMR licensee gains access to a channel
    in the SMR category -- and not vice-versa. Thus, a waiver of Section
    90.617(d) of the Commission's rules does not undermine the
    underlying purpose of the prohibition against intercategory
    sharing.[^9]

5.  Additionally, we find that the public interest would be served by
    the channel exchange because it is consistent with the purpose of
    the relocation provisions of the *800 MHz SMR Report and Order.*
    When the Commission established Economic Area (EA) licensing for SMR
    service in the 800 MHz band, it authorized licensees that had
    obtained EA licenses in the Upper 200 band segment to relocate
    incumbent site-based licensees operating there to channels lower in
    the band, subject to certain requirements. Recently, we granted a
    waiver of Section 90.617(d) to Occidental Permian, Ltd., an I/LT
    eligible, and Nextel Communications, Inc. approving a voluntary swap
    of upper 200 channels.[^10] The common element in that case and the
    instant case is that, in both circumstances, an I/LT licensee is
    being licensed on an SMR channel pursuant to a voluntary relocation
    agreement.

6.  The public interest is further served because the relocation is
    consistent with the *800 MHz Public Safety Interference* proceeding.
    Under the rules developed in that proceeding, the lower portion of
    the 800 MHz band segment (806-815 MHz/851-860 MHz) is generally
    reserved for licensees employing "high-site" non-cellular
    systems.[^11] Cellular architecture systems, such as Nextel's, which
    are incompatible with high-site non-cellular systems from an
    interference standpoint may no longer operate in the lower portion
    of the 800 MHz spectrum, subject to certain exceptions not relevant
    here. Consequently, Nextel's waiver request to permit the channel
    exchange with Metro -- to the extent it relocates Metro's high-site
    facilities to the lower part of the 800 MHz band -- is consistent
    with both the relocation provisions of the *800 MHz SMR Report and
    Order* and the *800 MHz* *Public Safety Order's* prohibition against
    operation of certain cellular architecture systems in the lower
    portion of the 800 MHz band.

7.  Even after the proposed channel exchange, Nextel will have other
    systems in the Houston area that will continue to operate on the
    858.6875 MHz SMR channel, *supra,* at least until the 800 MHz band
    is reconfigured pursuant to the *800 MHz Public Safety Order.*[^12]
    However*,* Nextel has agreed to accept any interference that Metro
    might cause Nextel when Metro relocates to the SMR Channel and to
    resolve any interference that Nextel might cause to Metro on the
    channel.

8.  *B/ILT Channels.* Allowing Metro to operate on the B/ILT channels
    currently licensed to Nextel on a short-spaced basis is consistent
    with the Commission's short-spacing rules. Section 90.621(b) of the
    Commission's rules requires that co-channel licensees maintain a
    distance separation of 70 miles unless they meet certain criteria
    necessary to avoid interference resulting from a reduced
    spacing.[^13] If Metro relocates to Nextel's B/ILT channels, as
    proposed, Metro's base station also will be short-spaced to certain
    other licensees in the Houston area. However, Nextel has been
    operating these channels on a short-spaced basis pursuant to letters
    of concurrence from the affected co-channel licensees, as permitted
    by Section 90.621(b)(5)[^14] of the Commission's rules, and the
    short-spacing has been "grandfathered," *i.e.* a successor licensee,
    such as Metro, may use the short-spaced channels under the same
    conditions as Nextel. However, Metro's proposed base station is not
    in the exact location as Nextel's current base station, although the
    two are within a mile of one another.

9.  Notwithstanding the difference in location, the operating parameters
    of Metro's proposed station are such that there will be no increase
    in interference to the short-spaced co-channel stations.
    Specifically, the 22 dBu/V interference contour of the B/ILT
    channels in Metro's proposed base station will extend no further
    than the 22 dBu/V interference contour of the existing Nextel base
    station on those channels. Metro also proposes to operate a
    secondary base station on these same frequencies and within the
    existing 22 dBu/V interference contour. Because secondary stations
    may not cause interference to, and must accept interference from,
    co-channel stations,[^15] authorizing Metro to operate the secondary
    base station will not cause interference to existing co-channel
    users.

10. *Decision*. Metro and Nextel have justified a channel exchange that
    will allow Metro to continue to provide communications services to a
    municipal transportation agency with no increase in interference to
    existing licensees or other adverse effect. We therefore grant the
    Nextel waiver request and direct that Metro's application for
    modification of license be processed.

# ORDERING CLAUSES

11. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, [47 U.S.C. §
    154(i)](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS154&FindType=L&AP=&RS=WLW4.09&VR=2.0&FN=_top&SV=Split&MT=Westlaw),
    and Sections 1.925, 90.617 and 90.621 of the Commission's Rules, [47
    C.F.R. §§
    1.925](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS1.925&FindType=L&AP=&RS=WLW4.09&VR=2.0&FN=_top&SV=Split&MT=Westlaw),
    90.617, and
    [90.621](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS90.621&FindType=L&AP=&RS=WLW4.09&VR=2.0&FN=_top&SV=Split&MT=Westlaw),
    the request for waiver filed by Nextel of Texas, Inc. on behalf of
    the Metropolitan Transit Authority of Harris County for Station
    KRX666 IS GRANTED, and application FCC File No. 0000725954 filed on
    January 8, 2002, as amended, SHALL BE PROCESSED consistent with this
    *Order*.

12. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission's Rules, [47 C.F.R. §§
    0.131](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS0.131&FindType=L&AP=&RS=WLW4.09&VR=2.0&FN=_top&SV=Split&MT=Westlaw),
    [0.331](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS0.331&FindType=L&AP=&RS=WLW4.09&VR=2.0&FN=_top&SV=Split&MT=Westlaw).

    FEDERAL COMMUNICATIONS COMMISSION

    Michael J. Wilhelm

    Chief, Public Safety and Private Wireless Division

    Wireless Telecommunications Bureau

[^1]: Metro, which manages Houston's public transportation system, filed
    the above-captioned application to modify its license for
    Industrial/Land Transportation (I/LT) Station KRX666, Houston,
    Texas. *See* FCC File No. 0000725954 (filed Jan. 8, 2002, amended
    Feb. 28, 2005).

[^2]: *See* Letter from James Wheaton, Compliance Manager, Request for
    Waiver, to Licensing and Technical Analysis Branch at 3 (Nov. 19,
    2001) (Waiver Request) accompanying FCC File No. 0000725954 (filed
    Jan. 8, 2002). Nextel of Texas, Inc. is a wholly-owned subsidiary of
    Nextel Communications, Inc. (collectively, Nextel).

[^3]: The subject channels are 856.3875 MHz, 857.3875 MHz, 858.3875 MHz,
    859.3975 MHz, 860.3875 MHz, 856.9125 MHz, 857.9125 MHz, 858.9125 MHz
    and 859.9125 MHz.

[^4]: *See* Intercategory Sharing of Private Mobile Radio Frequencies in
    the 806/821/851-866 MHz Bands, *Order*, 10 FCC Rcd 7350 (WTB 1995);
    Amendment of Part 90 of the Commission's Rules to Facilitate Future
    Development of SMR Systems in the 800 MHz Frequency Band, PR Docket
    No. 93-144, *First Report and Order, Eighth Report and Order, and
    Second Further Notice of Proposed Rulemaking*, 11 FCC Rcd 1463,
    1536-37 ¶¶ 138-142 (1995) (*800 MHz SMR Report and Order*).

[^5]: *See* Improving Public Safety Communications in the 800 MHz Band,
    WT Docket 02-55, *Report and Order, Fifth Report and Order, Fourth
    Memorandum Opinion and Order, and Order*, 19 FCC Rcd 14969, 15126 ¶
    334 n.762 (2004) (*800 MHz* *Public Safety Order*).

[^6]: 47 C.F.R. § 90.617(d).

[^7]: *See* 47 C.F.R. § 1.925.

[^8]: *800 MHz SMR Report and Order*, 11 FCC Rcd at 1537 ¶ 141.

[^9]: See American Medical Response, Inc., *Order on Reconsideration*,
    15 FCC Rcd 25587, 25590, 25591-92 ¶¶ 8, 11 (WTB PSPWD 2000).

[^10]: *See* Occidental Permian, Ltd., *Order*, 20 FCC Rcd 4045 (WTB
    PSCID 2005).

[^11]: *See 800 MHz Public Safety Order*, 19 FCC Rcd at 14977 ¶ 11.

[^12]: *See id*.

[^13]: 47 C.F.R. § 90.621(b)(4).

[^14]: 47 C.F.R. § 90.621(b)(5).

[^15]: *See* 47 C.F.R. § 90.7.