Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. D132332             |
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| STATE OF TENNESSEE               | ) |                              |
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| DEPARTMENT OF TRANSPORTATION     | * |                              |
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| For a Public Safety License      | * |                              |
| Pursuant to Section 337 of the   | * |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: December 11, 2000 Released: December 13, 2000**

By the Deputy Chief, Wireless Telecommunications Bureau:

# Introduction and executive summary

1.  We have before us a petition for reconsideration ("Petition")[^1]
    filed by the State of Tennessee, Department of Transportation
    ("TNDOT") of a decision by the Deputy Chief, Wireless
    Telecommunications Bureau (Bureau)[^2] denying an application and
    waiver request, pursuant to Section 337 of the Communications Act of
    1934, as amended ("Act").[^3] Additionally, TNDOT has submitted a
    Supplement[^4] and Further Supplement[^5] to the Petition. For the
    reasons below, we affirm the *Order* and deny TNDOT's Petition.

# background

2.  On October 4, 1999, TNDOT filed an application and waiver request
    pursuant to Section 337 of the Act to permit it to use three VHF
    frequencies, 157.950 MHz, 157.980 MHz and 158.080 MHz, for its
    public safety communications system.[^6] On June 5, 2000, the Bureau
    denied TNDOT's Section 337 waiver request and dismissed the
    associated application.[^7] The Bureau found that TNDOT applied for
    frequencies already assigned.[^8] With regard to the one frequency
    that was unassigned for which TNDOT applied, the Bureau determined
    that TNDOT failed to show that no other allocated spectrum is
    immediately available for the requested public safety use and failed
    to show that the requested use is technically feasible without
    causing harmful interference to other spectrum users entitled to
    protection from such interference under the Commission's rules.[^9]
    TNDOT filed its Petition on July 5, 2000,[^10] and supplemented its
    filing on August 18, 2000[^11] and October 25, 2000.[^12]

# discussion

3.  TNDOT requested three channel pairs in its application:
    152.690/157.950 MHz, 152.720/157.980 MHz, and 152.780/158.040 MHz.
    In its Petition, TNDOT does not dispute the *Order*'s conclusion
    that the 152.720/157.980 MHz, and 152.780/158.040 MHz channel pairs
    were already assigned.[^13] TNDOT suggests that it will amend its
    application to substitute 152.810/158.070 MHz for the two channel
    pairs that were already assigned.[^14] We will not consider TNDOT's
    new proposal. An amendment to an application requesting to add a
    frequency for which the applicant is not currently authorized is a
    major amendment[^15] and considered a new application under the
    Commission's rules.[^16] If TNDOT wishes to pursue this proposal, it
    should submit a new application. That application would then be
    placed on public notice.

4.  TNDOT did apply for 152.780/158.040 MHz in its original
    application.[^17] In its Petition, TNDOT offers a new engineering
    study to demonstrate, among other things, that 152.780/158.040 MHz
    will not cause harmful interference to other licensees.[^18] We note
    that Section 1.106(c) of the Commission's rules provides that new
    facts may be presented in a petition for reconsideration only if the
    facts relate to events that occurred or circumstances that changed
    since the last opportunity to present such matters; the facts were
    not known to the petitioner, and could not reasonably have been
    learned prior to such opportunity; or the public interest requires
    consideration of the facts.[^19] In this case, we will consider the
    new engineering analysis with respect to the 152.780/158.040 MHz
    frequency pair because we believe the public interest will be served
    by considering this new and useful information.[^20]

5.  *Section 337 Analysis*. Section 337 of the Act provides public
    safety entities with a statutory means of obtaining a waiver of the
    Commission\'s rules to permit them to use frequencies not allocated
    for public safety use.[^21] 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.[^22]

6.  The plain language of subsection (c) provides that a waiver request
    under this section shall be granted only upon a finding that all
    five conditions are met regarding the spectrum specifically sought
    by an applicant.[^23] Where any one of the five conditions is not
    met, we will not grant relief pursuant to Section 337.[^24] We note
    that in the *Order*, we determined that the purpose of TNDOT's
    service is to protect the safety of life, health or property, as
    required by Section 337(f).[^25] Thus, we continue to believe that
    TNDOT has met that threshold requirement.

7.  In its Petition, TNDOT asserts that its new engineering analysis
    shows that it satisfies Section 337(c)(1)(B) because it allegedly
    demonstrates that "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."[^26] In that connection, Section 22.567 of the
    Commission's rules describes the means used to determine whether a
    proposed operation would cause interference to other
    facilities.[^27]

8.  Here, TNDOT proposes operation on the frequency pair 152.780/158.040
    MHz at two sites: Arlington (Shelby County), Tennessee and Johnson
    City (Washington County), Tennessee.[^28] At the Johnson City site,
    our review of the coordinates shows that the coordinates offered by
    TNDOT[^29] do not correspond to the location of Johnson City,
    Tennessee. The coordinates provided are 471 miles from Johnson City,
    TN.[^30] Therefore, we cannot find that TNDOT has met its obligation
    to show that no harmful interference will be caused by its
    authorization. At the Arlington site, we find that using the
    assignment criteria described in Section 22.567 of the Commission's
    rules, TNDOT complies with Section 337(c)(1)(B).

9.  In the *Order*, we concluded that TNDOT's proposal also failed to
    comply with Section 337(c)(1)(A) of the Act, which requires TNDOT to
    show that "no other spectrum allocated to public safety services is
    immediately available to satisfy the requested public safety service
    use."[^31] In the *Order*, we determined that TNDOT must show that
    "no public safety frequencies in *any* band are unassigned," as
    opposed to frequencies in TNDOT's preferred band. TNDOT argues that
    the *Order* misinterprets Section 337(c)(1)(A) and states that the
    Commission must consider the "requested public safety service use"
    when determining whether other allocated spectrum is immediately
    available.[^32] In its argument, TNDOT equates "requested public
    safety service use" with the type of radio system the applicant
    operates.[^33] We disagree with this interpretation. Neither the
    language in the statute nor the legislative history indicate that
    Congress intended for the type of radio system to control the
    determination whether there is spectrum allocated to public safety
    services that is immediately available. The legislative history only
    provides that "spectrum must not be immediately available on a
    frequency already allocated to public safety services."[^34] TNDOT's
    interpretation is also contrary to the Commission's and Bureau's
    analysis of other Section 337 waiver requests.[^35] We note that in
    each instance where a Section 337 application has been granted, the
    applicant examined every band of spectrum allocated for public
    safety use and showed that no spectrum in those bands was
    immediately available.[^36] Furthermore, in the *BBA Report and
    Order*, the Commission has again stated that the statute requires
    that there be no unassigned public safety spectrum, or not enough
    for the proposed public safety use, in any band in the geographic
    area in which the Section 337 applicant seeks to provide public
    safety services.[^37] Thus, we find that our analysis of the
    requirements of Section 337(c)(1)(A) was proper and consistent with
    Commission precedent.

10. In its Further Supplement, TNDOT offers a statement from its
    engineering consultant that operation on 800 MHz band channels
    cannot be effectively combined in its existing radio system. TNDOT's
    consultant asserts that use of 800 MHz band frequencies, even if
    possible, would undermine interoperability between TNDOT and other
    public safety agencies that operate in the VHF band.[^38] While we
    have considered interoperability in determining whether the grant of
    a Section 337 request would be in the public interest,[^39] in
    determining whether no other spectrum allocated for public safety
    service is immediately available, we have not limited our analysis
    to frequencies that are interoperable with the applicant's existing
    system.[^40] Similarly, TNDOT argues that the propagation
    characteristics of 800 MHz band channels and the cost of using 800
    MHz channels render these channels unavailable.[^41] We disagree. In
    previous Section 337 decisions, we have explained that these factors
    are not determinative.[^42] Consequently, in this matter, we
    conclude TNDOT has not met its burden to show that no other spectrum
    allocated for public safety service is immediately available.

11. Finally, on August 18, 2000, TNDOT submitted a Supplement to its
    Petition requesting a waiver, in accordance with Section 1.925 of
    the Commission's rules, to enable it to use the paging frequencies
    it requested in its October 4, 1999 application.[^43] Section 1.925
    of the Commission's rules permits waiver of the Commission's rules
    if: (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 the unique or unusual circumstances of the
    instant case, application for the rule(s) would be inequitable,
    unduly burdensome or contrary to public interest or the applicant
    has no reasonable alternative.[^44] TNDOT references the prior
    submissions for evidence that the required showing has been
    made.[^45]

12. We find that the purpose of the Part 22 rules is served, and not
    frustrated, by applying these rules to this case. The frequencies
    requested by TNDOT are allocated for one-way or two-way paging
    operations, and in so doing, the Commission has determined that the
    allocation of those frequencies for commercial paging services is in
    the public interest.[^46] Additionally, the technical requirements
    are imposed to ensure that existing licensees will not be subject to
    harmful interference.[^47] We also note that the Commission has
    adopted geographic area licensing and competitive bidding rules for
    paging services in the 152-159 MHz band.[^48] The *Paging Second
    Report and Order* was issued to require transition to geographic
    area licensing for several bands, including the 152-159 MHz band,
    and to require resolution of mutually exclusive applications via the
    competitive bidding process.[^49] We cannot conclude that the
    underlying purpose of the *Paging Second Report and Order* would be
    frustrated by application to the instant case. We also conclude that
    the underlying purpose of the *Paging Second Report and Order* would
    be served by application to the instant case. TNDOT has also failed
    to demonstrate that unique or unusual factual circumstances
    exist.[^50] Accordingly, we find that it has not met its burden of
    showing that a waiver pursuant to Section 1.925 of the Commission's
    rules is justified.

# conclusion

13. We will not consider TNDOT's proposal to specify new frequencies
    that were not proposed in its original application. We find that
    TNDOT has not demonstrated that it meets the criteria for a waiver
    of the Commission's rules pursuant to Section 337(c)(1) of the Act,
    because it has not shown that the requested use is technically
    feasible without causing harmful interference to other spectrum
    users entitled to protection from such interference under the
    Commission's rules with respect to 152.810/158.070 MHz pair in
    Johnson City, Tennessee. We further find that TNDOT has not
    demonstrated that it meets the criteria for a waiver of the
    Commission's rules pursuant to Section 337(c)(1) of the Act, because
    it has not shown that no other spectrum allocated for public safety
    services is available with respect to 152.810/158.070 MHz pair.

14. We also conclude that TNDOT has not demonstrated that a waiver,
    pursuant to Section 1.925 of the Commission's rules, is warranted
    under the circumstances presented. Adhering to the geographic area
    licensing, competitive bidding and interference protection
    requirements serves the underlying purpose of the Commission's
    rules.

# ordering clauses

15. IT IS ORDERED that pursuant to Section 4(i) of the Communications
    Act of 1934, as amended, 47 U.S.C. § 154(i), that the "Motion for
    Leave to Submit Supplement to Petition for Reconsideration and
    Request for Waiver" and the "Motion for Leave to Submit Supplement
    to Petition for Reconsideration and Request for Waiver" filed by
    State of Tennessee Department of Transportation on August 18, 2000
    and October 23, 2000, respectively, ARE GRANTED.

16. IT IS ORDERED that pursuant to Section 4(i) of the Communications
    Act of 1934, as amended, 47 U.S.C. § 154(i), and Sections 1.106 and
    1.925 of the Commission's rules, 47 C.F.R. §§ 1.106, 1.925, the
    petition for reconsideration filed on July 5, 2000 by State of
    Tennessee Department of Transportation IS DENIED.

17. 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]: State of Tennessee Department of Transportation Petition for
    Reconsideration (filed July 5, 2000) (Petition).

[^2]: State of Tennessee Department of Transportation, *Order*, 15 FCC
    Rcd 9347 (2000) (*Order*).

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

[^4]: State of Tennessee Department of Transportation Supplement to
    Petition for Reconsideration (filed August 18, 2000) (Supplement).

[^5]: State of Tennessee Department of Transportation Further Supplement
    to Petition for Reconsideration (filed October 25, 2000) (Further
    Supplement).

[^6]: FCC File No. D132332, State of Tennessee, Department of
    Transportation Application (filed October 4, 1999) (Application).
    Operation on these frequencies are governed by the Commission's Part
    22 Public Mobile Radio Service rules. *See* 47 C.F.R. §§
    22.561-22.589.

[^7]: *See Order*.

[^8]: *See Order* at ¶ 7.

[^9]: *See* *Order* at ¶¶ 9-10.

[^10]: *See* Petition..

[^11]: *See* Supplement.

[^12]: *See* Further Supplement.

[^13]: *See* Petition at 2.

[^14]: *Id*. at 2.

[^15]: 47 C.F.R § 1.929(a)(6).

[^16]: 47 C.F.R § 1.927(h).

[^17]: *See* Application.

[^18]: *Id*. at 3.

[^19]: 47 C.F.R. § 1.106(c); *see e.g.* County of Burlington, New
    Jersey, *Order on Reconsideration*, DA 00-814 (Apr. 12, 2000).

[^20]: *See* County of Burlington, New Jersey, *Order on
    Reconsideration*, DA 00-814 ¶ 8 (WTB rel. Apr. 12, 2000)
    (*Burlington Recon*); *see also* County of Sacramento, California,
    *Order on Reconsideration*, 15 FCC Rcd 12600 ¶ 11 (2000)
    (*Sacramento Recon*).

[^21]: *See* 47 U.S.C. § 337.

[^22]: 47 U.S.C. § 337(c)(1); *see also* Balanced Budget Act, § 3004.

[^23]: *See* 47 U.S.C. § 337(c)(1).

[^24]: South Bay Regional Public Communications Authority, *Memorandum
    Opinion and Order*, 13 FCC Rcd 23781, 23796 ¶ 33 (1998) (*South
    Bay*); Implementation of Sections 309(j) and 337 of the
    Communications Act of 1934, as Amended, *Notice of Proposed
    Rulemaking*, WT Docket No. 99-87, 14 FCC Rcd 5206, 5234 ¶ 56 (1999);
    Implementation of Sections 309(j) and 337 of the Communications Act
    of 1934, as Amended, WT Docket No. 99-87, *Report and Order and
    Further Notice of Proposed Rulemaking*, FCC 00-403, ¶ 131 (rel. Nov.
    20, 2000) (*BBA Report and Order*).

[^25]: *Order* at ¶ 6.

[^26]: 47 U.S.C. § 337(c)(1)(B).

[^27]: 47 C.F.R. § 22.567.

[^28]: Petition at Attachment.

[^29]: *Id*. TNDOT gives N35-18-30/W89-39-00 as the coordinates for
    Johnson City, TN. Our records indicate that those coordinates
    correspond with Arlington, TN.

[^30]: The distance from the coordinates provided, which corresponds to
    Arlington, TN, and Johnson City, TN is 471 miles. *See* Rand McNally
    Road Atlas *available at* http://www.randmacnally.com.

[^31]: 47 U.S.C. § 337(c)(1)(A).

[^32]: Petition at 3-6.

[^33]: *Id*. at 4-5.

[^34]: H.R. Rep. No. 111, 103^rd^ Cong., 1^st^ Sess. at 579-80 (1993).

[^35]: *See*, *e.g.*, New Hampshire Department of Transportation,
    *Memorandum Opinion and Order*, 14 FCC Rcd 19438 ¶ 8 (WTB 1999)
    (NHDOT) (applicant failed to demonstrate that no other spectrum
    allocated to public safety services is immediately available when it
    argues that an 800 MHz system would be more expensive than an UHF
    system); *see also* *South Bay*, 13 FCC Rcd 23781, 23796 ¶34 (1998)
    (applicant submitted a letter from a frequency coordinator stating
    that there were no unassigned public safety frequencies in the
    applicant's area).

[^36]: *See* *e.g.* San Mateo, 14 FCC Rcd 19002 ¶ 11and County of
    Sacramento, *Order*, DA 99-2959 (WTB rel. Dec. 21, 1999)
    (Sacramento).

[^37]: *See* *BBA Report and Order* at ¶ 132 (concluding, in part, that
    the statutory language is clear in that it expressly requires that
    no other spectrum allocated to public safety services be available
    without any qualification).

[^38]: Further Supplement at Attachment.

[^39]: *See South Bay*, 13 FCC Rcd at 23792 ¶40.

[^40]: *South Bay*, 13 FCC Rcd 23781 (granting the application because,
    among other things, South Bay provided evidence that no 800 MHz,
    150-174 MHz, 450-470 MHz or 470-512 MHz public safety frequencies
    were available in its area); *see also* County of San Mateo,
    California, *Memorandum Opinion and Order*, 14 FCC Rcd 19002 (1999)
    (*San Mateo*) (finding that a study showing no Part 90 spectrum is
    available to San Mateo and a new certification that no UHF, VHF or
    800 MHz channels are available satisfied Section 337(c)(1)(A)).

[^41]: Further Supplement at Attachment.

[^42]: NHDOT, 14 FCC Rcd 19442 ¶ 8; *see also* Hennepin County, *Order*,
    14 FCC Rcd 19422 ¶ 8 (1999) (Hennepin).

[^43]: *See* Supplement at 1-2.

[^44]: 47 C.F.R. § 1.925.

[^45]: *See* Supplement at 1.

[^46]: 47 C.F.R. § 22.561.

[^47]: TNDOT has not made a showing that the proposed use of the
    frequency pair 152.780/158.040 MHz in Johnson City, TN satisfies the
    technical channel assignment criteria. 47 C.F.R. § 22.567.

[^48]: Revision of Part 22 and Part 90 of the Commission's Rules to
    Facilitate Future Development of Paging Systems and Implementation
    of Section 309(j) of the Communications Act -- Competitive Bidding,
    WT Docket No. 96-18, *Second Report and Order and Further Notice of
    Proposed Rulemaking*, 12 FCC Rcd 2732 (1997) (*Paging Second Report
    and Order*).

[^49]: *Id*. at 2748 ¶ 23.

[^50]: 47 C.F.R. § 22.567.