**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. D090161             |
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| HAUPPAUGE FIRE DISTRICT          | ) |                              |
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| Application and Waiver Request   | * |                              |
| for Use of Certain Highway       |   |                              |
| Maintenance Radio Service        | * |                              |
| Channels in Suffolk County, New  | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: July 6, 2000 Released: July 7, 2000**

By the Deputy Chief, Wireless Telecommunications Bureau:

# iNTRODUCTION

1.  We have before us a request from the Hauppauge Fire District
    (Hauppauge)[^1] for reconsideration of the decision of the Wireless
    Telecommunications Bureau (Bureau)[^2] denying its request for a
    waiver of the Commission's Rules, pursuant to Section 337 of the
    Communications Act of 1934 (Act), as amended,[^3] and Section 1.925
    of the Commission's Rules.[^4] Upon consideration of the arguments
    and the record presented by Hauppauge, we deny the Petition.

# background

2.  Hauppauge is a public agency which provides fire fighting services
    to an eight square-mile district within Suffolk County, on Long
    Island, New York.[^5] It is the licensee of Station KEC785, and
    currently operates a 46 MHz band fire radio system, but contends
    that it cannot communicate effectively on this system due to
    co-channel interference.[^6] Hauppauge reports several incidents
    when it was impossible to communicate with search and rescue teams,
    and it had to use runners to transmit messages in and out of burning
    buildings.[^7] Also, vehicles responding to calls in the eastern
    portion of the District have been unable to communicate with
    headquarters.[^8] On July 16, 1997, Hauppauge filed a waiver request
    and an associated application for authorization to augment its
    existing fire radio system and operate temporarily on 47.16 MHz.[^9]
    According to Hauppauge, it plans to upgrade its system and migrate
    to the UHF band when it has sufficient funding.[^10] Under its
    proposed implementation schedule, Hauppauge anticipates that it will
    require the use of frequency 47.16 MHz for approximately four
    years.[^11]

3.  Hauppauge sought to coordinate its use of frequency 47.16 MHz, which
    is allocated for highway maintenance operations, with the American
    Association of State Highway and Transportation Officials
    (AASHTO).[^12] AASHTO, the FCC-certified frequency coordinator for
    highway maintenance channels, rejected the proposed assignment,
    stating that it was \"clearly outside the scope of the FCC rules and
    therefore cannot be approved.\"[^13] In this regard, AASHTO referred
    to \"the Geographic Allocation Plan\" for highway maintenance
    frequencies, which does not permit the use of 47.16 MHz within the
    State of New York.[^14]

4.  The Bureau's Public Safety and Private Wireless Division sought
    comment on Hauppauge's waiver request and modification application
    on August 13, 1999.[^15] On December 21, 1999, the Bureau released
    an *Order* denying Hauppauge's request. The *Order* found that
    Hauppauge failed to meet two of the criteria under Section 337(c).
    Specifically, Hauppauge failed to demonstrate that no other spectrum
    allocated to public safety services is immediately available to
    satisfy the requested public safety service use, and it did not show
    that its proposed use of 47.16 MHz would not create harmful
    interference to other spectrum users entitled to protection from
    such interference.[^16] The *Order* also found that Hauppauge failed
    to satisfy the waiver standard under Section 1.925 of the
    Commission's Rules.[^17] Hauppauge's Petition, filed on January 20,
    2000, requests reconsideration of these findings.[^18]

# discussion

## Waiver under Section 337(c) of the Act.

5.  Section 337 of the Act provides public safety entities with a
    statutory means of obtaining a waiver of the Commission's
    Rules.[^19] Subsection (c)(1) of Section 337 provides as follows:

> \(c\) Licensing of Unused Frequencies for Public Safety Services.\--
>
> \(1\) Use of unused channels for public safety services.\--Upon
> application by an entity seeking to provide public safety services,
> the Commission shall waive any requirement of this Act or its
> regulations implementing this Act (other than its regulations
> regarding harmful interference) to the extent necessary to permit the
> use of unassigned frequencies for the provision of public safety
> services by such entity. An application shall be granted under this
> subsection if the Commission finds that\--
>
> \(A\) no other spectrum allocated to public safety services is
> immediately available to satisfy the requested public safety service
> use;
>
> \(B\) the requested use is technically feasible without causing
> harmful interference to other spectrum users entitled to protection
> from such interference under the Commission's regulations;
>
> \(C\) the use of the unassigned frequency for the provision of public
> safety services is consistent with other allocations for the provision
> of such services in the geographic area for which the application is
> made;
>
> \(D\) the unassigned frequency was allocated for its present use not
> less than 2 years prior to the date on which the application is
> granted; and
>
> \(E\) granting such application is consistent with the public
> interest.[^20]

6.  When considering requests under Section 337, we first must determine
    whether the applicant is "an entity seeking to provide public safety
    services."[^21] We found in the *Order* that the purpose of the
    services proposed by Hauppauge is to protect the safety of life,
    health, and property, and that such services are not to be made
    commercially available to the public, as required by Section
    337(f).[^22] Thus, we continue to believe that Hauppauge has met the
    threshold requirement.

7.  We denied Hauppauge's request for a waiver pursuant to Section 337
    because it did not satisfy all five statutory criteria.[^23] On
    reconsideration, Hauppauge first argues that all five of the factors
    need not be satisfied in order for us to grant a waiver under
    Section 337.[^24] To the contrary, the plain language of
    subsection (c) provides that a waiver request should be granted only
    upon a finding that all five conditions are met regarding the
    spectrum specifically sought by the applicant,[^25] and the
    Commission and Bureau have required that applicants meet all five
    criteria.[^26] Consequently, unless Hauppauge satisfies each of the
    five factors, its application cannot be granted under Section 337(c)
    of the Act.

8.  In the *Order*, we stated that Hauppauge has not shown that no other
    spectrum allocated to public safety services was immediately
    available to satisfy the requested public safety service use, as
    required by Section 337(c)(1)(A).[^27] We determined that this
    showing had not been met because public safety spectrum was
    available in the UHF band, to which Hauppauge ultimately plans to
    migrate.[^28] In response, Hauppauge argues that the statute
    requires only that there be no unassigned public safety spectrum in
    the particular band targeted for the applicant's proposed use.[^29]
    We recently rejected the argument that Section 337(c)(1)(A) requires
    only a showing that no public safety spectrum is available in the
    desired band:

    The language of the statute is not limited to the desired band. Nor
    does the legislative history, which states only that "spectrum must
    not be immediately available on a frequency already allocated for
    public safety services," suggest a narrow scope for this
    requirement. \[This argument\] is also contrary to the Commission's
    and Bureau's analysis of other Section 337 waiver requests. Thus, we
    find that our analysis of Section 337(c)(1)(A) was proper and
    consistent with Commission precedent.[^30]

    Hauppauge also contends that the *Order* reads the word "available"
    too narrowly, which has the effect of interpreting Section 337 "out
    of existence."[^31] We disagree. In fact, we have granted Section
    337 waivers in several instances only where the applicant has
    demonstrated that there is no other spectrum immediately
    available.[^32] Thus, we continue to believe, as stated in the
    *Order*, that the availability of UHF channels for public safety
    use, a fact conceded by Hauppauge, causes the instant waiver request
    to be deficient.

9.  In addition, we found that Hauppauge failed to demonstrate that the
    proposed use of the frequency is technically feasible without
    causing harmful interference to other spectrum users entitled to
    protection from such interference under the Commission's
    regulations, as required by Section 337(c)(1)(B).[^33] In the
    *Order*, we found Hauppauge's showing that there are no co-channel
    stations within seventy miles of its proposed transmitter, or
    anywhere in New York, Connecticut, or New Jersey to be insufficient,
    because "Hauppauge did not provide . . . any analysis of its service
    and interference contours, nor did it provide an analysis of
    licensees' operations in the States of Pennsylvania and
    Massachusetts in order to ascertain the potential for co- and
    adjacent channel interference."[^34] In response, Hauppauge states
    that because 47 MHz assignments are not exclusive and there is no
    FCC-specified interference protection criteria, there is no valid
    measure by which Hauppauge could demonstrate that it would not cause
    harmful interference and no statutory requirement that it do
    so.[^35]

10. Hauppauge nonetheless submitted a new engineering analysis with its
    Petition demonstrating that its 19 dBu interference contour would
    not overlap any co-channel station's 37 dBu service contour.[^36] We
    begin with Hauppauge's new engineering analysis. We find it does not
    analyze the potential effect of Hauppauge's proposed operations on
    adjacent channel stations, despite the clear statement in the
    *Order* expressing concern for such licensees.[^37] In addition,
    Hauppauge's suggestion that Section 337(c)(1)(B) of the Act is of no
    effect when an applicant seeks access to a shared frequency is
    incorrect. Hauppauge's assertion that there are no meaningful
    interference protection criteria is also incorrect. In this regard,
    we note that we require applicants to coordinate frequencies through
    frequency coordinators to ensure that the grant of an application
    will result in the assignment of a suitable channel, minimizing
    harmful interference to other operators.[^38] For previous instances
    where the Commission or Bureau has granted Section 337 waiver
    requests, the applicant demonstrated that there would be no harmful
    interference by obtaining coordination through a FCC-certified
    public safety frequency coordinator.[^39] Hauppauge's statement that
    "it received indication that AASHTO would again reject its request"
    does not relieve it of this requirement.[^40] Hauppauge should have
    resubmitted its application to AASHTO and, if denied, consistent
    with the *Order*, AASHTO then would be required to provide Hauppauge
    with the basis for its denial.[^41] Thus, we conclude that our
    decision in the *Order* denying Hauppauge's request for a waiver
    pursuant to Section 337 of the Act was correct based on the record
    before us in this proceeding.

## Waiver Under Section 1.925 of the Commission's Rules

11. In order for us to grant a waiver under Section 1.925 of the Rules,
    the applicant must demonstrate that:

> \(i\) 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
>
> \(ii\) In view of unique or unusual factual circumstances of the
> instant case, application of the rule(s) would be inequitable, unduly
> burdensome or contrary to the public interest, or the applicant has no
> reasonable alternative.[^42]

12. The *Order* concluded that Hauppauge had met neither standard. We
    found that the underlying purpose of the rules would be served by
    application to the instant case, because the Part 90 frequency
    coordination and geographic plan requirements are intended to
    prevent harmful interference to co- and adjacent channel Highway
    Maintenance Radio Service operations, and Hauppauge had not
    submitted sufficient information to establish that it would not
    cause such interference.[^43] We also found that Hauppauge had a
    reasonable alternative in the UHF band, and perhaps in other bands,
    as well.[^44] Hauppauge argues that our analysis is flawed
    because (1) there are no interference protection criteria for the 47
    MHz band; (2) Hauppauge is being punished for AASHTO's failure to
    meaningfully consider its request; (3) contrary to the *Order's*
    findings, there are no other alternatives to the 47 MHz band;
    and (4) the Bureau failed to reexamine the engineering basis for the
    geographical frequency assignment plan found in Section 90.20(c)(3)
    of the Rules.

13. Hauppauge has provided no new information that warrants
    reconsideration of our finding that it failed to meet the waiver
    standard. As noted earlier, we continue to believe that Hauppauge
    has not submitted sufficient information to establish that it will
    not cause harmful interference to other users of the 47 MHz band. It
    is clear that the purpose of the rules would be served by their
    application to the instant case, and we need not consider
    Hauppauge's other arguments with respect to the first waiver
    standard in further detail. Regarding the availability of
    alternative frequencies, Hauppauge still has not demonstrated that
    other suitable frequencies are unavailable.[^45] Hauppauge's
    assertion that only 47 MHz band frequencies will fit its need for
    mutual aid communications with other local fire departments[^46] is
    at odds with its earlier representation that it intends to use 47.16
    MHz only temporarily, until it migrates to the UHF band. Based on
    the record before us, we conclude that grant of a waiver pursuant to
    Section 1.925 of the Commission's Rules is not warranted.

# conclusion

14. We find that Hauppauge has not demonstrated that it meets the
    criteria for a waiver of the Commission's Rules pursuant to Sections
    337(c)(1)(A) and (B) of the Act, because it has not shown that no
    other spectrum allocated for public safety services is available,
    and it has not demonstrated that no harmful interference would
    result from a grant of its application. Similarly, we find that
    Hauppauge has not satisfied the waiver criteria under Section 1.925
    of the Rules.

# ordering clauses

15. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and
    337(c) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 337(c), and Sections 1.106 and 1.925 of the Commission's
    Rules, 47 C.F.R. §§ 1.106, 1.925, Hauppauge Fire District's Petition
    for Reconsideration filed January 20, 2000, is DENIED.

16. 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,
    0.331.

    FEDERAL COMMUNICATIONS COMMISSION

    Kathleen O'Brien Ham

    Deputy Chief, Wireless Telecommunications Bureau

[^1]: Hauppauge Fire District Petition for Reconsideration (filed Jan.
    20, 2000) (Petition).

[^2]: Hauppauge Fire District, *Memorandum Opinion and Order,* DA
    99-2830 (WTB rel. Dec. 21, 1999) (*Order*).

[^3]: *See* 47 U.S.C. s 337; *see also* Balanced Budget Act of 1997,
    Pub. L. No. 105-33, 111 Stat. 252 (1997), § 3004 (Balanced Budget
    Act).

[^4]: 47 C.F.R. § 1.925.

[^5]: *Order*, ¶ 2.

[^6]: *Id*.

[^7]: *Id*. *See* Memorandum from Michael P. Mooney, Chief of
    Department, Hauppauge Fire Department, to Board of Fire
    Commissioners, Hauppauge Fire District, dated June 23, 1999, filed
    June 24, 1999.

[^8]: *Id.*

[^9]: *Id*., ¶ 3.

[^10]: *Id*., ¶ 2.

[^11]: *Id*., ¶ 3.

[^12]: *Order*, ¶ 3; *see* 47 C.F.R. §§ 90.20(c), 90.175.

[^13]: *Id.*, ¶ 3. *See* Letter from Larry A. Miller, Frequency
    Coordination Manager, AASHTO, to Russ Taylor, Gardner, Carton &
    Douglas, dated July 22, 1997.

[^14]: *Order*, ¶ 3.

[^15]: Wireless Telecommunications Bureau Seeks Comment on Requests for
    Waiver by Brentwood and Hauppauge Fire Districts, Suffolk County,
    New York, to Obtain Licenses for 47 MHz Frequencies Allocated for
    Highway Maintenance, *Public Notice*, 14 FCC Rcd 13342 (WTB PSPWD
    1999). We received one comment, from AASHTO.

[^16]: *Order*, ¶ 7.

[^17]: *Id*., ¶ 8.

[^18]: Petition at 1. AASHTO filed an opposition to the petition on
    March 9, 2000. On March 21, 2000, Hauppauge filed its reply to
    opposition, and on or around April 5, 2000, AASHTO filed another
    document in which it seeks to address arguments made in Hauppauge's
    reply. Because AASHTO's opposition was filed after the 30-day
    deadline set forth in our Rules, it is untimely and we will not
    consider its merits. *See* 47 C.F.R. § 1.106(g). Consequently, we
    also will not consider the subsequent pleadings.

[^19]: *See* 47 U.S.C. § 337; *see also* Balanced Budget Act, § 3004.

[^20]: 47 U.S.C. § 337(c)(1).

[^21]: 47 U.S.C. § 337(c). Section 337(f) defines the term "public
    safety services" as

    > services\--
    >
    > the sole or principal purpose of which is to protect the safety of
    > life, health, or property;
    >
    > that are provided\--
    >
    > \(i\) by State or local government entities; or
    >
    > \(ii\) by nongovernmental organizations that are authorized by a
    > governmental entity whose primary mission is the provision of such
    > services; and
    >
    > \(C\) that are not made commercially available to the public by
    > the provider.

    47 U.S.C. § 337(f).

[^22]: *Order*, ¶ 6.

[^23]: *Id*., ¶¶ 5, 7.

[^24]: Petition at 2.

[^25]: *See* 47 U.S.C. § 337(c)(1); *see also* H.R. Conf. Rep. No. 217,
    105^th^ Cong., 1^st^ Sess., at 579 (1997) (Conference Report)
    ("Before granting applications under this subsection, the Commission
    must make five specific findings . . . .").

[^26]: *See* Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934 as Amended, *Notice of Proposed Rule
    Making*, WT Docket No. 99-87, 14 FCC Rcd 5206, 5234 ¶ 56 (1999);
    License Communications Services, Inc., *Memorandum Opinion and
    Order*, 13 FCC Rcd 23781, 23796 ¶ 33 (1998) (*South Bay*); City of
    Ponoma, California, *Order*, DA 00-161, ¶ 7 (WTB rel. Feb. 1, 2000)
    (*Pomona*); New Hampshire Department of Transportation, *Memorandum
    Opinion and Order*, 14 FCC Rcd 19438, 19442 ¶ 8 (WTB 1999).

[^27]: *Order*, ¶ 7.

[^28]: *Id*.

[^29]: Petition at 3-4.

[^30]: County of Burlington, New Jersey, *Order on Reconsideration*, DA
    00-814, ¶ 7 (WTB rel. Apr. 12, 2000) (*Burlington*) (footnotes
    omitted) (citing, *e.g.*, Conference Report at 579-80).

[^31]: Petition at 3.

[^32]: *See*, *e.g.*, *Burlington*, ¶ 9; County of San Mateo,
    California, *Memorandum Opinion and Order*, DA 99-2521 ¶ 11 (WTB
    rel. Nov. 12, 1999).

[^33]: *Order*, ¶ 7.

[^34]: *Id*.

[^35]: Petition at 4-5.

[^36]: *Id*. at Ex. A.

[^37]: Our licensing records indicate that there are more than 70
    adjacent channel licensees as close or closer to Hauppauge's
    proposed transmitter than the nearest co-channel station, including
    more than 20 stations within 25 miles.

[^38]: *See, e.g.*, Amendment of Part 90 Concerning the Commission's
    Finder's Preference Rules, *Report and Order*, WT Docket No. 96-199,
    13 FCC Rcd 23816, 23820 ¶ 8 (1998); Frequency Coordination in the
    Private Land Mobile Radio Services, *Report and Order*, PR Docket
    No. 83-737, 103 FCC 2d 1093, 1095 ¶ 2 (1986).

[^39]: *See, e.g.,* *South Bay*, 13 FCC Rcd 23796 ¶ 35; *Burlington*, ¶
    11; *Pomona*, ¶ 9.

[^40]: Petition at 7.

[^41]: *See Order*, ¶ 12.

[^42]: 47 C.F.R.§§ 1.925(b)(3)(i), (ii).

[^43]: *Order*, ¶¶ 9-10.

[^44]: *Id*. ¶ 11.

[^45]: *Id*.

[^46]: Petition at 7.