**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FCC File No. 0000602499      |
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| STATE OF MONTANA                 | ** | FCC File No. 0000896907      |
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| Request for Waiver of 47 C.F.R.  | *  |                              |
| § 90.20 to Permit Station        | *) |                              |
| KA92875 to Operate on            | ** |                              |
| Frequencies 156.990 MHz and      |    |                              |
| 161.790 MHz                      | *  |                              |
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| Request for Waiver of 47 C.F.R.  | ** |                              |
| § 90.20 to Permit Station KOA554 |    |                              |
| to Operate on Frequency 156.990  | *  |                              |
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**ORDER**

**Adopted: May 27, 2004 Released: May 28, 2004**

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

1.  *Introduction.* We have before us two applications[^1] and
    associated requests for waiver of Section 90.20 of the Commission's
    Rules[^2] filed by the State of Montana ("Montana") seeking to
    modify the licenses for two Public Safety Pool stations to add
    frequencies adjacent to certain Part 80 maritime frequencies. In
    particular, Montana requests waivers to permit Station KA92875, a
    mobile-only statewide license, to operate with a 20 kHz bandwidth on
    frequencies 156.990 MHz and 161.790 MHz, and to permit Station
    KOA554, Butte, Montana, to operate with a 20 kHz bandwidth on
    frequency 156.990 MHz. For the reasons stated below, we grant the
    requests for a waiver to permit the stations to use frequency
    156.990 MHz, but deny the request for a waiver to permit Station
    KA92875 to use frequency 161.790 MHz.

2.  *Background.* Montana is a governmental entity that conducts public
    safety communications. Section 90.20(c)(3) of the Rules sets forth
    the frequencies available for assignment to Public Safety Pool
    stations.[^3] Frequencies 156.990 MHz and 161.790 MHz, however, are
    not listed for assignment under this section of the Rules; rather,
    they are adjacent to frequencies governed by Part 80 of the
    Commission's Rules. Specifically, Montana's proposed use of
    frequency 156.990 MHz would overlap VHF maritime Channel 79A
    (156.975 MHz), which is used for maritime commercial communications,
    and VHF maritime Channel 20A (157.000 MHz), which is used for
    intership or ship-to-coast port operations communications.[^4]
    Further, Montana's proposed use of frequency 161.790 MHz would
    overlap VHF maritime Channel 24B (161.800 MHz), the base transmit
    frequency of a VHF Public Coast (VPC) channel.[^5]

3.  In 1995, the Commission adopted rules that allowed the use of VPC
    frequencies, including Channel 24, by eligible private land mobile
    radio (PLMR) entities away from navigable waterways.[^6] In 1997,
    the Commission amended its rules to permit VPC licensees to serve
    fixed and mobile units on land, as well as maritime vessels.[^7] It
    also proposed to adopt a geographic licensing approach for VPC
    spectrum,[^8] and suspended the acceptance and processing of
    applications for new or expanded systems, including applications for
    PLMR use.[^9] In 1998, the Commission adopted a geographic licensing
    approach for VPC spectrum,[^10] adopted service and competitive
    bidding rules, and removed the rule allowing PLMR entities to be
    licensed on VPC spectrum.[^11] The Commission conducted the initial
    auction of VPC geographic licenses in 1998, and conducted a second
    auction in 2001 for those licenses that were not assigned pursuant
    to the first auction.[^12] The licenses for the VPC areas
    encompassing almost all of the state of Montana were granted to
    Warren C. Havens (Havens) on May 19, 1999.[^13] Licenses for the VPC
    areas covering the remainder of the state were granted to Maritel,
    Inc.[^14] and SMR Systems, Inc. [^15] on October 9, 2001.

4.  In its waiver requests, Montana notes that its Department of
    Transportation (DOT) operates a statewide two-way radio system that
    already utilizes, *inter alia*, frequencies 156.990 MHz[^16] and
    161.790 MHz[^17] under other call signs. It argues that the fact
    that the Commission granted those licenses is evidence that there
    are no alternate Public Safety Pool frequencies available.[^18]
    Montana further asserts that the justification for adding these two
    frequencies to the subject licenses is that they currently are
    licensed to Montana and not used by any other agency in
    Montana.[^19] Montana claims there are no other frequencies which
    can be used throughout the entire state, a feature which, it
    contends, is necessary because Montana DOT crews must have
    communications in all areas of Montana.[^20]

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;[^21] or that, in view of unique or
    unusual factual circumstances, application of the rule(s) would be
    inequitable, unduly burdensome, or contrary to the public interest,
    or the applicant has no reasonable alternative.[^22] We conclude
    that, under the circumstances presented, grant of a waiver is
    warranted with respect to frequency 156.990 MHz, but not with
    respect to frequency 161.790 MHz.

6.  As noted above, frequency 156.990 MHz lies between frequency 156.975
    MHz, which is used for maritime commercial communications (*i.e.*,
    communications to or from commercial transport vessels[^23] that
    directly relate to the purposes for which the ship is used,
    including the piloting of vessels, movement of vessels, obtaining
    vessel supplies, and scheduling of repairs[^24]), and frequency
    157.000 MHz, which is designated for intership and ship-to-coast
    port operations communications (*i.e.*, communications in or near a
    port, in locks or in waterways, which relate to the operational
    handling, movement and safety of ships[^25]).[^26] The underlying
    purpose of Section 80.373(f) is to designate certain VHF channels
    for such communications in order that interference from other use is
    mitigated. We take notice of the fact that there is not a high
    demand for maritime commercial communications or port operations
    communications in Montana. Consequently, we conclude that Montana
    has shown that the underlying purposes of Section 90.20, for which
    Montana is seeking a waiver, and Section 80.373(f) would not be
    served by application to the circumstances presented and that
    granting the waiver is in the public interest, thereby warranting
    waiver of the rules. We believe that applying the rule in this case
    would not serve the purpose because licensing an adjacent frequency
    to Montana would create little risk of harmful interference to ship
    and coast communications. Further, we believe that granting the
    waiver of the rules on this frequency is in the public interest
    because the frequency would be used by Montana in connection with
    public safety communications.

7.  With respect to frequency 161.790 MHz, however, we conclude that
    grant of a waiver would not be in the public interest. As noted
    above, frequency 161.790 MHz is adjacent to frequency 161.800 MHz,
    which is the base transmit frequency for VPC Channel 24. VPC
    licensees are permitted to serve units on land, as well as maritime
    vessels.[^27] In addition, VPC geographic area licensees are
    permitted to operate in areas with no navigable waterways.[^28]
    Because frequency 161.790 MHz falls within VPC Channel 24, the
    potential for interference to VPC operations from Montana's use of
    frequency 161.790 MHz is significant, particularly given that
    Montana is applying for a statewide authorization. We find that it
    significant that the record before us does not provide evidence to
    the contrary or consent by the affected VPC licensees. We conclude
    that Montana has not shown that the underlying purposes of Section
    90.20, for which Montana is seeking a waiver, and Section 80.371
    would be frustrated or not served by application to Montana's case
    and that granting the waiver is in the public interest. Therefore,
    based on the record before us, we find that granting the waiver for
    this frequency is not in the public interest under the circumstances
    presented.

8.  *Conclusion.* In sum, we find that Montana has met the burden for
    grant of its waiver requests with respect to frequency 156.990 MHz,
    but not with respect to frequency 161.790 MHz. Consequently, we
    grant the request for waiver to permit Station KOA554 to use
    frequency 156.990 MHz. We grant in part and deny in part the waiver
    regarding Station KA92875; the waiver is granted with respect to
    frequency 156.990 MHz, but denied with respect to frequency 161.790
    MHz.

9.  Accordingly, IT IS ORDERED, 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 associated with application FCC File No.
    0000602499 IS GRANTED IN PART and DENIED IN PART to the extent set
    forth above, and the application SHALL BE PROCESSED consistent with
    this *Order*.

10. IT IS FURTHER ORDERED 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
    associated with application FCC File No. 0000896907 IS GRANTED, and
    the application SHALL BE PROCESSED consistent with this *Order*.

11. 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

D'wana R. Terry

> Chief, Public Safety and Critical Infrastructure Division
>
> Wireless Telecommunications Bureau

[^1]: FCC File Nos. 0000602499 (filed Sept 25, 2001, amended Oct. 4,
    2001, Feb. 8, 2002, and Sept. 24, 2003), 0000896907 (filed May 22,
    2002, amended July 31, 2002).

[^2]: 47 C.F.R. § 90.20.

[^3]: 47 C.F.R. § 90.20(c)(3).

[^4]: *See* 47 C.F.R. § 80.373(f).

[^5]: *See* 47 C.F.R. § 80.371(c).

[^6]: *See* Amendment of the Commission\'s Rules Concerning Maritime
    Communications, *First Report and Order*, PR Docket No. 92-257, 10
    FCC Rcd 8419, 8423 ¶ 9 (1995); *see also* 47 C.F.R. § 90.283 (1997).

[^7]: *See* Amendment of the Commission\'s Rules Concerning Maritime
    Communications, *Second Report and Order and Second Further Notice
    of Proposed Rule Making*, PR Docket No. 92-257, 12 FCC Rcd 16969,
    16965 ¶ 24 (1997) (*Public Coast Second R&O and Second FNPRM*); *see
    also* 47 C.F.R. § 80.123.

[^8]: *See Public Coast Second R&O and Second FNPRM*, 12 FCC Rcd at
    16989 ¶ 76.

[^9]: *See id.* at 17015 ¶ 132.

[^10]: Amendment of the Commission\'s Rules Concerning Maritime
    Communications, *Third Report and Order and Memorandum Opinion and
    Order*, PR Docket No. 92-257, 13 FCC Rcd 19853, 19859 ¶ 10 (1998)
    (*Public Coast Third R&O*).

[^11]: *Id.* at 19912. The Commission expressly declined a suggestion to
    permit the continued licensing of PLMR systems away from navigable
    waterways. *See id.* at 19871 ¶ 36. While VPC geographic licensees
    are required to protect pre-existing incumbent licensees from
    harmful interference, *id.* at 19863 ¶ 18; *see also* 47 C.F.R.
    § 80.773(b), incumbent operations may not be expanded without the
    consent of the affected geographic area licensee(s). *Public Coast
    Third R&O*, 13 FCC Rcd at 19864 ¶ 20.

[^12]: At the end of the initial auction, which concluded on December
    14, 1998, bids were received for twenty-six of the forty-two VPC
    geographic area licenses. *See* VHF Public Coast Service Auction
    Closes, *Public Notice*, 14 FCC Rcd 480 (1998), Attachment C. The
    remaining sixteen VPC geographic area licenses were auctioned on
    June 13, 2001. *See* VHF Public Coast and Location and Monitoring
    Service Spectrum Auction Closes: Winning Bidders Announced, *Public
    Notice*, DA 01-1443 (rel. June 15, 2001).

[^13]: *See* licenses for Call Signs WPOJ514, WPOJ515, and WPOJ516. We
    note that, subsequent to the filing of the above-captioned
    applications and waiver requests, Havens filed applications to
    assign to Montana Havens's VPC spectrum in Montana. *See* FCC File
    Nos. 0001662537, 0001662656 (filed Apr. 2, 2004). Those applications
    remain pending. The grant of those applications would not obviate
    the need for the present waiver requests, however, because Havens is
    not the only VPC licensee in Montana, and because Montana also has
    requested non-VPC Part 80 spectrum.

[^14]: *See* license for Call Sign WPTI476.

[^15]: *See* license for Call Sign WPTI483.

[^16]: Specifically, Call Signs KOA555, Bozeman, Montana, KOA564,
    Helena, Montana, and KOU36, Lodge Grass, Montana, are authorized to
    operate on frequency 156.990 MHz. Montana also was authorized to use
    that frequency under Call Signs KOK28, Whitlash, Montana, and KON20,
    Libby, Montana, but those licenses were terminated on March 11,
    2003. (One of the waiver requests also lists Call Sign KOV26, but
    this station is assigned to the State of Idaho.) We note that
    licensees in the public safety radio services holding a valid
    authorization on June 30, 1958, to operate in the frequency band
    156.27-157.47 MHz may, on proper application, continue to be
    authorized for such operation, including expansion of existing
    systems, until such time as harmful interference is caused to the
    operation of any authorized station other than those licensed in the
    public safety radio service. *See* 47 C.F.R. § 2.106 n.US266.
    Montana has not asserted that it is eligible under this provision to
    add frequency 156.990 MHz to the licenses for Stations KA92875 and
    KOA554 as an "expansion" of one or more of the other stations
    already licensed to use that frequency, and our licensing records do
    not reflect whether any of those stations was authorized on or prior
    to June 30, 1958.

[^17]: Specifically, Call Signs KFV81, Dillon, Montana, KOA564, Helena,
    Montana, and WCC990, Saltese, Montana, are authorized to operate on
    frequency 161.790 MHz.

[^18]: Letter January 31, 2002 from Larry A. Miller, Frequency
    Coordination Manager, American Association of State Highway
    Transportation Officials, to Federal Communications Commission.

[^19]: *Id*.

[^20]: *Id*.

[^21]: 47 C.F.R. § 1.925(b)(3)(i).

[^22]: 47 C.F.R. § 1.925(b)(3)(ii).

[^23]: *I.e.*, ships used primarily in commerce for transporting persons
    or goods to or from any harbor(s) or port(s) or between places
    within a harbor or port area; or in connection with the
    construction, change in construction, servicing, maintenance,
    repair, loading, unloading, movement, piloting, or salvaging of any
    other ship or vessel. 47 C.F.R. § 80.5.

[^24]: *Id.*

[^25]: *Id.*

[^26]: 47 C.F.R. § 80.373(f).

[^27]: 47 C.F.R. § 80.123.

[^28]: *Public Coast Third R&O*, 13 FCC Rcd at 19866 ¶ 25; *see also* 47
    C.F.R. § 80.371(c)(4) (permitting operation anywhere within the
    geographic licensee's region).