**DA 05-1768**

**July 1, 2005**

**WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON REQUEST**

**FOR WAIVER BY THE COMMONWEALTH OF VIRGINIA TO OPERATE A WIDE AREA
PUBLIC SAFETY RADIO SYSTEM UTILIZING PART 22 VHF FREQUENCIES**

**Comment Date: July 22, 2005 Reply Date: August 1, 2005**

By this *Public Notice*, the Wireless Telecommunications Bureau seeks
comment on a waiver request by the Commonwealth of Virginia, Department
of State Police (the Commonwealth) to operate a wide area public safety
radio communications system on unassigned Part 22 VHF frequencies. The
Commonwealth contends that use of the subject channels is necessary due
to the lack of available public safety channels. Specifically, the
Commonwealth filed the waiver request and application, FCC File No.
0001924695 on November 4, 2004 to use frequencies designated for Part 22
one-way or two-way mobile operation to support the communications
requirements of its public safety agencies. The Commonwealth seeks
authorization to use VHF frequencies listed in Section 22.561 of the
Commission's Rules, 47 C.F.R. § 22.561, at five locations in
southwestern Virginia.

By way of background, the Commonwealth states that it operates a land
mobile network with equipment that is in most cases almost thirty years
old and that cannot accommodate its evolving and expanding public safety
and homeland security operations. The current analog network utilizes
forty-seven transmitter sites across the state on only four channels,
where only one channel is available in any given area. As a result, the
system is severely congested and unable to meet emergency communications
requirements. Additionally, a majority of the Commonwealth's radio
equipment has become obsolete and is no longer supported by
manufacturers, resulting in a shortage of replacement components needed
for repairs. Next, the Commonwealth's network will not accommodate the
Commonwealth's expanding need for both voice and mobile data
communications because the technology of the current system does not
offer improved or innovative features and functionalities needed for
efficient operations. Finally, the Commonwealth's radio network lacks
interoperability capability with other agencies.

To address deficiencies in the current system, the Virginia General
Assembly approved a plan to implement a digital, trunked land mobile
system serving up to 7,500 users within twenty state agencies and
facilitating interoperability with federal and local agencies. The
Commonwealth plans to convert the existing network operated by the
Virginia State Police, as it is comprised of 150 MHz land mobile
equipment supported by a backbone microwave system. Many of the existing
physical sites will be used for the new system. The new system will
increase capacity, fill in coverage gaps, offer mobile data
capabilities, and offer wide-area roaming capabilities.

The Commonwealth requests waivers of Sections 22.7, 20.9, and 22.565 of
the Commission's Rules, 47 C.F.R. §§ 22.7, 20.9, and 22.565, and any
other Commission rules that are necessary to grant its application,
pursuant to Section 337(c) of the Communications Act of 1934, as amended
(the Act), 47 U.S.C. § 337(c), and Sections 1.925 and 1.3 of the
Commission's Rules, 47 C.F.R. § 1.925, 1.3. Section 22.7 of the
Commission's Rules limits the eligibility for Part 22 authorizations to
"common carriers." Section 20.9 specifies that Part 22 Paging and
Radiotelephone operations shall be treated as commercial mobile radio
services, which conflicts with the Commonwealth's proposed use of the
channels for internal communications. Section 22.565 establishes the
transmitting power limits for channels listed in Section 22.561. The
Commonwealth notes that its proposed power levels are consistent with
those permitted for VHF-band operations licensed under Part 90 rules.

The Commonwealth argues that a grant of its request would be consistent
with Section 337(c) of the Act. Section 337(c) of the Act states that
the Commission shall grant an application by an entity seeking to
provide public safety services to the extent necessary to permit the use
of unassigned frequencies, if the Commission makes five specific
findings: (1) no other spectrum allocated for public safety use is
immediately available; (2) there will be no harmful interference to
other spectrum users entitled to protection; (3) public safety use of
the frequencies is consistent with other public safety spectrum
allocations in the geographic area in question; (4) the unassigned
frequencies were allocated for their present use not less than two years
prior to the grant of the application at issue; and (5) the grant of the
application is consistent with the public interest. "Public safety
services" are defined by 47 U.S.C. § 337(f) as services the sole or
principal purpose of which is to protect the safety of life, health, or
property, that are provided by the governmental entities or by
non-governmental entities authorized by the governmental entity whose
primary mission is the provision of such services, and that are not made
commercially available to the public by the provider.

The Commonwealth asserts that the five requirements of Section 337(c) of
the Act have been met: (1) a search for available spectrum indicates
that the Part 22 VHF channels sought are the only viable option.[^1]
Certain isolated Part 90 frequencies remain available, but they are
either subject to interference, are inappropriate to meet the
Commonwealth's needs, or are needed by smaller local public safety
providers in Virginia. (2) The proposed system will not cause harmful
interference because there are no users or licensees on the Part 22 VHF
channels in the proposed geographic area. The channels were made
available in Auction No. 40 in 2001 and Auction No. 48 in 2003, but the
Commission received no bids for these channels in Basic Economic Areas
45 and 47, where the Commonwealth seeks authorization. The Commonwealth
searched the Commission's Universal Licensing System and determined that
there are no incumbent licensees on the channels within seventy
kilometers of the proposed sites. Therefore, the Commonwealth's
operations will provide protection from harmful interference to
co-channel and adjacent channel incumbent licensees. (3) The request is
consistent with uses of the VHF band in the same general geographic
area. The proposal will provide for interoperability with agencies
within the Commonwealth. (4) The unassigned frequencies at issue were
allocated for Part 22 mobile services over twenty years ago. (5)
Granting the application and waiver request would be in the public
interest as it will allow otherwise vacant spectrum to be used to
support critical communications that promote the safety of life, health,
property, and homeland security.

In the alternative to Section 337(c) of the Act, the Commonwealth states
the Commission may grant a waiver pursuant to Sections 1.925 and 1.3 of
the Commission's Rules, 47 C.F.R. § 1.925, 1.3. Section 1.925 provides
that a waiver of the Commission's Rules may be granted if it is shown
that the underlying purpose of the rule(s) would not be served or would
be frustrated by application to the instant case, and that a grant of
the requested waiver would be in the public interest; or in view of the
unique or unusual circumstances of the instant case, application of the
rule(s) would be inequitable, unduly burdensome or contrary to the
public interest or if the applicant has no reasonable alternative.
Section 1.3 provides that rule provisions may be "waived for good cause
shown."

Interested parties may file comments on the waiver request on or before
July 22, 2005. Parties interested in submitting reply comments must do
so on or before August 1, 2005. All comments should reference the
subject waiver request including the DA number of this *Public Notice*,
and should be filed with the Office of the Secretary, Federal
Communications Commission, 445 12th Street, S.W., TW-A325, Washington,
D.C. 20554.

The address for FCC locations should be used only for documents filed by
United States Postal Service first-class mail, Express Mail, and
Priority Mail. Hand-delivered or messenger-delivered documents for the
Commission\'s Secretary are accepted only by the Commission's
contractor, Natek, Inc., at 236 Massachusetts Avenue, N.E., Suite 110,
Washington, D.C. 20002. The filing hours at this location are 8:00 a.m.
to 7:00 p.m. All hand deliveries must be held together with rubber bands
or fasteners. Any envelopes must be disposed of before entering 236
Massachusetts Avenue, N.E. Other messenger-delivered documents,
including documents sent by overnight mail (other than United States
Postal Service Express Mail and Priority Mail) should be addressed for
delivery to 9300 East Hampton Drive, Capitol Heights, MD 20743. All
filings must be addressed to the Commission's Secretary, Office of the
Secretary, Federal Communications Commission. *See* FCC Announces a New
Filing Location for Paper Documents and a New Fax Number for General
Correspondence, *Public Notice*, 16 FCC Rcd 22165 (2001).

The application and waiver request can be accessed electronically via
the Commission's Universal Licensing System,
<http://wireless.fcc.gov/uls>. The full text of the waiver request,
comments and reply comments will be available for inspection and
duplication during regular business hours in the FCC Reference
Information Center (RIC) of the Consumer and Governmental Affairs
Bureau, Federal Communications Commission, 445 12th Street, S.W., Room
CY-A257, Washington, D.C. 20554. Copies also may be purchased from the
Commission's duplicating contractor, Best Copy and Printing, Inc.,
Portals II, 445 12th Street, S.W., Room CY-B402, Washington, D.C. 20554.
Customers may contact BCPI through its web site,
[http://www.bcpiweb.com](http://www.bcpiweb.com/), by email at
<fcc@bcpiweb.com>, by phone at (202) 488-5300 or (800) 378-3160, or by
facsimile at (202) 488-5563. For further information regarding the
public reference file for this waiver request, contact Maria Ringold,
Chief, Wireless Branch, RIC, (202) 418-1355.

Unless otherwise provided, requests for waiver of the Commission's Rules
are subject to treatment by the Commission as restricted proceedings for
*ex parte* purposes under Section 1.1208 of the Commission's Rules, 47
C.F.R. § 1.1208. Because of the policy implications and potential impact
of this proceeding on persons not parties to the waiver request, we
believe it would be in the public interest to treat this case as a
permit-but-disclose proceeding under the *ex parte* rules. *See*
Sections 1.1200(a), 1.1206 of the Commission's Rules, 47 C.F.R. §§
1.1200(a), 1.1206. Therefore, subsequent to the release of this *Public
Notice*, *ex parte* presentations that are made with respect to the
issues involved in the subject waiver request will be allowed but must
be disclosed in accordance with the requirements of Section 1.1206(b) of
the Commission's Rules, 47 C.F.R. § 1.1206(b).

For further information, contact Mr. Tom Eng of the Public Safety and
Critical Infrastructure Division, Wireless Telecommunications Bureau at
(202) 418-0019, TTY (202) 418-7233, or via e-mail to
<Thomas.Eng@fcc.gov>.

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

\- FCC -

[^1]: The Commonwealth recently was authorized to use certain Part 80
    VHF public coast station channels pursuant to an assignment and
    waiver, *see* Commonwealth of Virginia, *Order*, 19 FCC Rcd 15454
    (WTB PSCID 2004), but the Commonwealth states that this spectrum is
    not sufficient to meet the needs of its proposed system.