**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File Nos. 0003087139,        |
|                                  | *) | 0003087140, 0003087141,      |
| STATE OF FLORIDA                 | ** | 0003087142, 0003087143,      |
|                                  |    | 0003087144, 0003120864,      |
| Request for Waiver of Sections   | *  | 0003120935, 0003120940,      |
| 90.613, 90.615(a)(1), and        | *) | 0003120998, 0003121063,      |
| 90.617(g)(1) of the Commission's | ** | 0003113192                   |
| Rules                            |    |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: February 4, 2008 Released: February 4, 2008**

By the Associate Chief, Public Safety and Homeland Security Bureau:

# Introduction

1.  We have before us twelve applications filed by the State of Florida
    (Florida) to expand the operation of its 800 MHz Statewide Law
    Enforcement Radio System (SLERS) by adding new base stations and
    additional frequencies to existing base stations.[^1] In conjunction
    with these applications, Florida seeks a waiver of Section 90.613 of
    the Commission's rules[^2] in order to operate on "offset" channels,
    *i.e.*, channels with center frequencies offset 12.5 kHz from the
    center frequencies of normally assignable channels.[^3] Florida also
    seeks a waiver of Sections 90.615(a)(1) and 90.617(g)(1) of the
    Commission's rules[^4] in order to operate the requested base
    stations and frequencies prior to the end of the 800 MHz rebanding
    process.[^5] For the reasons discussed herein, we grant Florida's
    requests to the extent indicated below.

# BACKGROUND

2.  Florida's SLERS system consists of 164 fixed sites providing radio
    coverage throughout the State of Florida to over 15,000 mobile and
    portable subscriber units operated by state, local, and federal
    agencies.[^6] SLERS utilizes trunked frequencies throughout the 800
    MHz band.[^7] Florida states that the number of subscriber units is
    expanding due to the popularity of SLERS among Florida law
    enforcement agencies and other public safety users, and claims that
    an increase in the channel allotment at various sites is needed to
    handle the current and projected channel loading.[^8]

3.  As part of its proposed system expansion, Florida seeks to increase
    its channel capacity by reducing the spacing in between its
    operating channels.[^9] Section 90.613 of the Commission's rules
    lists the center frequencies for channels that are available for
    licensing in the 800 MHz band.[^10] Except in the NPSPAC portion of
    the band, these center frequencies are separated by 25 kHz. Florida
    seeks a waiver of this rule in order to operate "offset" channels in
    the interleaved portion of the 800 MHz band[^11] with center
    frequencies that are offset 12.5 kHz from the center frequencies
    listed in Section 90.613.[^12] *See* Figure 1 below.

    **Figure 1**

4.  In support of its waiver request, Florida states that operation of
    offset channels is necessary for a transition to a more effective
    and efficient statewide frequency plan.[^13] Florida notes that in
    2001, it received authorization to employ offset channels at certain
    locations within the SLERS system and that operation of these offset
    channels has been essential to providing a reasonable grade of
    service to subscribers.[^14] Florida states that due to
    long-standing frequency congestion within the state, expansion of
    SLERS will require continued use and expansion on offset
    channels.[^15] Furthermore, Florida includes spacing studies to
    demonstrate that it will satisfy the minimum co-channel spacing
    requirements to all non-SLERS licensees operating on each upper and
    lower-adjacent standard channel.[^16]

5.  Florida is also seeking to activate the channels and base stations
    proposed in its applications prior to the completion of 800 MHz
    rebanding in its region.[^17] Specifically, Florida would like to
    add base stations and activate both offset and non-offset channels
    in coordination with its retuning of current SLERS system channels
    in the Channel 1-120 portion of the band to channels in the
    interleaved portion of the band as part of 800 MHz band
    reconfiguration process.[^18] The interleaved channels that Florida
    seeks to use for its expanded operations are currently licensed to
    Sprint Nextel (Sprint) and Southern LINC (Southern) on a
    geographic-area basis throughout Florida. Although these channels
    will be vacated by Sprint and Southern and become available for
    licensing to eligible public safety entities after the conclusion of
    the 36 month rebanding period,[^19] Florida requires a waiver of
    Sections 90.615(a)(1) and 90.617(g)(1) of the Commission's rules to
    apply for and operate on these channels before that time.

6.  In support of its waiver request, Florida states that due to the
    extent of SLERS' already-licensed 800 MHz operations, under the
    Commission's minimum co-channel spacing requirements, no other
    public safety entity would be able to use the requested channels at
    the locations specified in the applications.[^20] Thus, Florida
    contends that its early access to these channels will have no
    adverse impact on other licensees.[^21] Florida also asserts that
    the public interest will be served by adding these channels and base
    stations at the same time that Florida carries out the rebanding of
    its Channel 1-120 facilities to the interleaved band, which is
    scheduled to take place in early 2008. Florida notes that
    coordinating the changes to the SLERS system encompassed by these
    applications will require reprogramming of over 15,000 subscriber
    units.[^22] While this would normally require scheduling of
    reprogramming a year or more in advance, followed by three to four
    months of work and the subsequent retuning of fixed sites, Florida
    states that it can save time and resources by conducting its
    rebanding-related and expansion-related reprogramming
    simultaneously.[^23] Finally, Florida notes that it has obtained
    both Sprint's and Southern's consent for Florida to add the
    requested channels at the proposed locations prior to the conclusion
    of rebanding.[^24]

# Discussion

7.  Section 1.925 of the Commission's rules provides that to obtain a
    waiver of the Commission's rules, a petitioner must demonstrate
    either that: (i) the underlying purpose of the rule(s) would not be
    served or would be frustrated by application to the present 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,[^25] or the applicant has no reasonable alternative.[^26]
    Based on the information before us, we conclude that a grant of the
    waiver requests is warranted to the extent described below.

## Offset Channels

8.  We find that Florida has justified a waiver of Section 90.613 for
    its proposed operations on offset channels. We agree with Florida
    that its proposed operations on offset channels are not only
    essential to maintaining a reasonable grade of service within the
    SLERS system,[^27] but that given the long-standing degree of
    frequency congestion in Florida, expanded use of offset channels is
    essential to the successful operation and growth of SLERS.[^28] We
    also find that allowing Florida to expand channel capacity through
    use of offset channels will benefit numerous public safety agencies
    in the State of Florida that use SLERS.[^29]

9.  We are also persuaded that the addition of the proposed offset
    channels to the SLERS system will not harm the interests of other
    licensees. First, Florida has provided engineering studies and maps
    demonstrating that it is the only licensee that operates on the
    adjacent standard channels within 113 kilometers of any of the sites
    at which the proposed offset channels will be used.[^30] Thus,
    Florida's proposed operation on offset channels meets the
    Commission's co-channel spacing requirements and will not negatively
    impact any existing licensees because Florida is maintaining the
    minimum required spacing.[^31] Second, with one exception discussed
    below, Florida has demonstrated that its proposed offset channel
    operations could not negatively impact any future licensee because
    no licensee other than Florida could operate on the adjacent
    standard channels in the vicinity of the proposed locations where
    the offset channels will be used.[^32]

10. The one exception to the situation described above concerns
    Application 0003120935, in which Florida seeks to license offset
    channel 809/854.2500 MHz at a new location in Apopka, Florida.[^33]
    The map attached to this application shows that Florida operates no
    facilities on the lower-adjacent standard channel, 809/854.2375
    MHz.[^34] Consequently, this standard channel could be available for
    licensing in this area to others besides Florida after rebanding is
    completed in the region. Because Florida's proposed operation on
    offset channel 809/854.2500 MHz at the Apopka site could create
    adjacent-channel interference to future users of the lower-adjacent
    standard channel within the state, we will grant Florida's
    application for an offset channel at this site, but only on a
    secondary basis to operations on standard channels. Thus, Florida's
    offset operation on channel 809/854.2500 MHz at Apopka must not
    cause interference to and will not receive interference protection
    from any operation on an adjacent-standard channel.

## Operation Prior to Conclusion of Rebanding

11. We find that Florida has also justified the requested waiver of
    Sections 90.615(a)(1) and 90.617(g)(1) to enable it to operate on
    the specified interleaved channels prior to the completion of
    rebanding. The Commission promulgated these rules to preserve
    spectrum vacated by ESMR operators such as Sprint and Southern and
    make it available for licensing to all public safety eligible
    entities.[^35] However, Florida has conclusively shown that because
    of its already-existing use of the band, it is the only eligible
    entity that will be able to operate on the specified channels at the
    specified locations after rebanding is complete.[^36] Consequently,
    providing Florida early access to these channels will have no
    adverse impact on any other eligible entity. We also find that the
    public interest will be served by allowing Florida to add these
    channels and base stations at the same that it carries out rebanding
    of its Channel 1-120 facilities to the interleaved band. This will
    enable Florida to save time and resources by conducting
    rebanding-related and expansion-related reprogramming of over 15,000
    subscriber units simultaneously.

# Ordering clause

12. Accordingly, IT IS ORDERED pursuant to Sections 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 FCC Application File Nos. 0003087139,
    0003087140, 0003087141, 0003087142, 0003087143, 0003087144,
    0003120864, 0003120935, 0003120940, 0003120998, 0003121063, and
    0003113192, filed by the State of Florida ARE GRANTED to the extent
    indicated herein.

13. IT IS FURTHER ORDERED that FCC Application File Nos. 0003087139,
    0003087140, 0003087141, 0003087142, 0003087143, 0003087144,
    0003120864, 0003120935, 0003120940, 0003120998, 0003121063, and
    0003113192 SHALL BE PROCESSED consistent with this Order and the
    Commission's rules.

14. This action is taken under delegated authority pursuant to Sections
    0.191 and 0.392 of the Commission's rules, 47 C.F.R. §§ 0.191,
    0.392.

    FEDERAL COMMUNICATIONS COMMISSION

> David L. Furth
>
> Associate Bureau Chief
>
> Public Safety and Homeland Security Bureau

[^1]: FCC File Nos. 0003087139, 0003087140, 0003087141, 0003087142,
    0003087143, 0003087144, 0003120864, 0003120935, 0003120940,
    0003120998, 0003121063, 0003113192 (collectively, Florida
    Applications).

[^2]: 47 C.F.R. § 90.613.

[^3]: *See* Request for Waiver (B) attached to Applications 0003087139,
    0003087140, 0003087143, 0003087144, 0003120935, 0003120940; Request
    for Waiver attached to Applications 0003120998, 0003121063 and
    Request for Waiver 90.613 attached to Application 0003120864
    (collectively, Offset Waiver Requests).

[^4]: 47 C.F.R. §§ 90.615(a)(1) and 90.617(g)(1).

[^5]: *See* Request for Waiver (A) attached to Applications 0003087139,
    0003087140, 0003087143, 0003087144, 0003120935, 0003120940, Request
    for Waiver attached to Applications 0003087141, 0003087142,
    0003113192, Statement attached to Applications 0003120998,
    0003121063; Request for Waiver (C) attached to Application
    0003120935 and Request for Waiver 90.617(g) attached to Application
    0003120864 (collectively, Early Access Waiver Requests). Although
    Florida did not specifically seek a waiver of Section 90.617(g)(1)
    with respect to Applications 0003120998, 0003113192, and 0003121063,
    we will apply the justification it included for a waiver of Section
    90.615(a)(1) to Section 90.617(g)(1) for these applications.

[^6]: Early Access Waiver Requests at 1.

[^7]: *Id.*

[^8]: *Id.* at 2.

[^9]: Offset Waiver Requests at 1.

[^10]: 47 C.F.R. § 90.613.

[^11]: The interleaved portion of the band consists of 809-815/854-860
    MHz.

[^12]: Offset Waiver Requests at 1.

[^13]: *Id.*

[^14]: *Id.*

[^15]: *Id.*

[^16]: *See* Co-channel spacing studies included in Early Access Waiver
    Requests (Spacing Studies).

[^17]: Early Access Waiver Requests at 1.

[^18]: *Id.* at 2.

[^19]: *See* 47 C.F.R. §§ 90.615(a)(1) and 90.617(g)(1).

[^20]: Each of the Early Access Waiver Requests includes maps showing
    proposed and licensed locations by frequency. (License Maps). The
    License Maps for frequencies 854.0625, 854.1500, 854.1750, 854.2500,
    856.5875, 856.6875, and 856.5500 MHz for Application 0003120935 and
    frequency 854.0875 MHz for Application 0003120940 were not included
    in the Early Access Waiver Requests but are attached separately.

[^21]: Early Access Waiver Requests at 2.

[^22]: *Id.*

[^23]: *Id.*

[^24]: *See* letter from Richard Edwards, Legal Analyst, Sprint Nextel,
    to Public Safety and Homeland Security Bureau, Federal
    Communications Commission (Oct. 19, 2007), attached to Florida
    Applications. *See also* letter from John D. Logan, Spectrum and
    Site Inventory Manager, SouthernLINC Wireless, to Public Safety and
    Homeland Security Bureau, Federal Communications Commission (Oct.
    22, 2007) attached to Early Access Waiver Requests for Applications
    0003087143 and 0003087144.

[^25]: 47 C.F.R. § 1.925(b)(3)(i).

[^26]: 47 C.F.R. § 1.925(b)(3)(ii).

[^27]: Offset Waiver Requests at 1.

[^28]: *Id.*

[^29]: Early Access Waivers at 1.

[^30]: *See* Spacing Studies. The Spacing Studies excluded Sprint and
    Southern's operations because Florida has obtained consent from
    these licensees. *See* note Error: Reference source not found,
    *supra*.

[^31]: These requirements are set forth at 47 C.F.R. § 90.621(b)(4).

[^32]: *See* License Maps.

[^33]: *See* Application 0003120935.

[^34]: *See* License Map for frequency 854.2500 MHz, attached to
    Application 0003120935.

[^35]: *See* Improving Public Safety Communications in the 800 MHz Band,
    WT Docket 02-55, *Report and Order, Fifth Report and Order, Fourth
    Memorandum Opinion and Order, and Order*, 19 FCC Rcd 14969, 15052 ¶¶
    152-153 (2004).

[^36]: *See* License Maps.