**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | *  | File No. 0001540645          |
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| VIRGINIA ELECTRIC AND POWER      | ** |                              |
| COMPANY                          |    |                              |
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| Request for Waiver to Authorize  | *) |                              |
| the Use of                       | ** |                              |
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| Channels in the 1427-1432 MHz    | *  |                              |
| Telemetry Band                   | *) |                              |
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**ORDER**

**Adopted: November 29, 2004 Released: December 1, 2004**

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

1.  *Introduction.* We have before us an application filed by the
    Virginia Electric and Power Company (VEPCO) to operate a telemetry
    system in the 1427-1432 MHz band.[^1] In connection with this
    application, VEPCO requests a waiver of Sections 90.259(b)(9)
    and (10) of the Commission's Rules in order to operate one frequency
    out of compliance with the channel plan for the 1427-1432 MHz
    band.[^2] For the reasons discussed herein, we grant the waiver
    request in part. Specifically, we grant the waiver request on the
    condition that VEPCO operate on the non-compliant frequency on a
    secondary[^3] basis.

2.  *Background.* In 1996-97, VEPCO purchased a fixed meter reading
    network from Itron, Inc. (Itron) to serve the Richmond, Virginia
    area.[^4] The meter reading system operates in the 1427-1432 MHz
    band, and consists of more than ten thousand transmitters.[^5] At
    the time of VEPCO's purchase, all telemetry systems in the 1427-1432
    MHz band operated on a secondary basis to Federal Government
    operations, and without an established channel plan.[^6] In 2002,
    the Commission reallocated the 1427-1432 MHz band (and other bands)
    for non-Government use.[^7] The Commission also modified the service
    rules for telemetry systems in the 1427-1432 MHz band by
    establishing a channel plan and setting power and antenna height
    limits.[^8] The Commission stated that incumbents would retain their
    secondary status, and those that wished to upgrade to primary status
    must file an application on the same basis as a new applicant.[^9]

3.  VEPCO currently operates its meter reading system as an incumbent
    with secondary status under a nationwide license issued to
    Itron.[^10] On December 9, 2003, VEPCO filed an application to
    license its existing operations on a primary basis. Under the
    channel plan established for the 1427-1432 MHz band, assignable
    frequencies occur in increments of 12.5 kHz from 1427.00625 MHz to
    1431.99375 MHz.[^11] Specifically, Sections 90.259(b)(9) and (10) of
    the Commission's rules specify that -- in the 1427-1432 MHz band --
    systems may operate 50 kHz bandwidth channels with center
    frequencies of 1427.025 MHz, 1427.075 MHz, 1427.125 MHz, etc.
    VEPCO's application, however, contains one frequency, 1427.5000 MHz,
    which fails to conform to the channel plan established by the
    Commission.[^12]

4.  VEPCO notes that its current system was designed prior to the
    creation of a channel plan for the 1427-1432 MHz band, and that
    channel versatility was not a feature incorporated into the
    equipment at that time.[^13] It argues that continued use of its
    installed equipment on existing channels will not materially impact
    other users, because the system was engineered to avoid interference
    with adjacent users.[^14] Furthermore, VEPCO notes that the
    geographic area of its non-compliant operations will not expand
    because Itron no longer supplies equipment not in accord with the
    new channel plan.[^15] Finally, VEPCO notes that replacing all of
    its existing equipment in order to comply with the channel plan
    could cost as much as \$26.65 million.[^16]

5.  *Discussion.* To obtain a waiver of the Commission\'s Rules, a
    petitioner must demonstrate either that the underlying purpose of
    the rule(s) would not be served or would be frustrated by
    application to the present case and that grant of the waiver would
    be in the public interest;[^17] or that, 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.[^18] We conclude that VEPCO has demonstrated that its
    request should be granted in part under the circumstances presented.

6.  The Commission established a channel plan for the 1427-1432 MHz band
    in order to maximize spectrum efficiency while minimizing the
    potential for interference.[^19] VEPCO's continued operations on a
    non-standard 50 kHz channel would potentially affect two standard
    channels -- the channel above and below the non-standard channel.
    VEPCO indicates, however, that the system was engineered to avoid
    interference with adjacent users, and that any future expansion of
    its system will be accomplished using equipment that complies with
    the Commission's channel plan. Under these circumstances, we believe
    that VEPCO should be licensed on the non-standard channel on a
    secondary basis, *i.e.*, on the condition that its operations cause
    no interference to any licensee. In this way, VEPCO may continue to
    operate on its present frequency without incurring a significant
    expense for VEPCO and its utility customers, but without impairing
    the spectrum efficiency envisioned by the rules governing the
    1527-1432 MHz band. We believe that, in this instance, grant of
    VEPCO's waiver request neither significantly impedes spectrum
    efficiency nor increases the chance for interference.

7.  This waiver is expressly limited to the lifetime of VEPCO's existing
    1427-1432 MHz equipment. Any equipment that VEPCO subsequently
    acquires must comply with the channel plan in our Rules.

8.  Accordingly, pursuant to Section 4(i) of the Communications Act of
    1934, as amended, 47 U.S.C. § 154(i), and Section 1.925 of the
    Commission's Rules, 47 C.F.R. § 1.925, that the waiver request filed
    by Virginia Electric and Power Company, on December 9, 2003, with
    respect to FCC File Number 0001540645 IS GRANTED SUBJECT TO THE
    CONDITION indicated above.

9.  IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309(a) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309(a),
    that application FCC File No. 0001540645 SHALL BE PROCESSED in
    accordance with this *Order* and the Commission's Rules.

10. 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
>
> Michael J. Wilhelm

Chief, Public Safety and Critical Infrastructure Division

Wireless Telecommunications Bureau

[^1]: FCC File No. 0001540645.

[^2]: *See* attachment to FCC File No. 0001540645 (Waiver Request)

[^3]: Secondary operations may not cause interference to operations
    authorized on a primary basis. 47 C.F.R. § 90.7.

[^4]: Waiver Request at 1.

[^5]: *Id.* at 2.

[^6]: *See* 47 C.F.R. § 90.259 (2001).

[^7]: Reallocation of the 216-220 MHz, 1390-1392 MHz, 1427-1429 MHz,
    1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and 2385-2390 MHz
    Government Transfer Bands, ET Docket No. 00-221, *Report and Order
    and Memorandum Opinion and Order,* 17 FCC Rcd 368 (2002)
    (*Reallocation Report and Order*). The Commission reallocated these
    bands pursuant to the provisions of the Omnibus Budget
    Reconciliation Act of 1993 (OBRA-93), Pub. L.103‑66, 107 Stat. 312
    (1993), and the Balanced Budget Act of 1997 (BBA-97), Pub. L.105-33,
    111 Stat. 251 (1997). Section 6001(a) of the OBRA-93 (codified at 47
    U.S.C. § 925(b)(1)) and Section 3002(e) of the BBA-97 (codified at
    47 U.S.C. § 925(c)(1)).

[^8]: *See* Amendments to Parts 1, 2, 27 and 90 of the Commission's
    Rules to License Services in the 216-220 MHz, 1390-1395 MHz,
    1427-1429 MHz, 1429-1432 MHz, 1432-1435 MHz, 1670-1675 MHz, and
    2385-2390 MHz Government Transfer Bands, *Report and Order*, WT
    Docket No. 02-8, 17 FCC Rcd 9980, 10036 ¶ 142-44 (2002) (*27 MHz
    Report and Order*).

[^9]: *Id.* at 10004 ¶ 57.

[^10]: Call Sign WPCG645.

[^11]: 47 C.F.R. § 90.259(b)(9).

[^12]: VEPCO's application specifies five additional frequencies that do
    conform to the channel plan -- 1427.0250 MHz, 1427.2250 MHz,
    1427.3250 MHz, 1427.8750 MHz, and 1427.9750 MHz.

[^13]: *See* Waiver Request at 1.

[^14]: *See id.*

[^15]: *See id.* at 1-2.

[^16]: *Id.* at 2.

[^17]: 47 C.F.R. § 1.925(b)(3)(i).

[^18]: 47 C.F.R. § 1.925(b)(3)(ii).

[^19]: *27 MHz Report and Order*, 17 FCC Rcd at 10036 ¶ 142.