**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | *  | FCC File No. 0000819118      |
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| DUKES COUNTY, MASSACHUSETTS      | ** |                              |
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| For Waiver of Section            | *  |                              |
| 90.20(d)(47) to Use VHF          | *) |                              |
| Frequency 166.250 MHz Outside    | ** |                              |
| the Regulatory Maximum of 150    |    |                              |
| miles From New York, N.Y.        | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: January 7, 2004 Released: January 8, 2004**

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

1.  *Introduction.* We have before us a request for waiver of Section
    90.20(d)(47) of the Commission\'s Rules[^1] filed by the County of
    Dukes County, Massachusetts, Office of the Sheriff (Dukes), on June
    12, 2002 (Dukes Waiver Request).[^2] Dukes seeks the waiver in order
    to utilize frequency 166.250 MHz for public safety operations 175
    miles from New York City.[^3] For the reasons discussed below, we
    grant the Dukes Waiver Request. Furthermore, on our own motion, we
    grant Dukes a waiver of Section 2.106, note US11,[^4] of the
    Commission's Rules so that it may utilize frequency 166.250 MHz for
    public safety operations.

2.  *Background.* Frequency 166.250 MHz is allocated to Federal
    Government (Government) use on a primary basis.[^5] Additionally,
    non-Federal Government (non-Government) operations on this frequency
    are authorized on a secondary, non-interference basis to Government
    operations.[^6] Specifically, non-Government remote pickup broadcast
    base and land mobile stations are authorized at points more than 150
    miles of New York City, and non-Government base, fixed and land
    mobile stations in the Public Safety Radio Services are authorized
    at points within 150 miles of New York City.[^7]

3.  Dukes is responsible for providing emergency communication services
    to all local police, fire and EMS, with all dispatch services
    emanating from the Dukes County Sheriff's Communication Center at
    Martha's Vineyard Airport in Martha's Vineyard, Massachusetts,
    approximately 173 miles from New York City.[^8] Dukes asserts that
    in an effort to overcome the problem of radio "dead spots" created
    by the hilly terrain on the west side of the island, it constructed
    an antenna tower on the highest hill in the area, and is in the
    process of installing antennas.[^9] However, Dukes asserts that it
    is experiencing frequency congestion that could be overcome by use
    of frequency 166.250 MHz.[^10] Thus, Dukes requests a waiver of
    Section 90.20(d)(47).

4.  In conjunction with its waiver request, Dukes has filed a memorandum
    from the International Municipal Signal Association (IMSA), an
    FCC-certified frequency coordinator for the Public Safety Pool,
    supporting Dukes' request.[^11] IMSA states that allowing Dukes to
    use frequency 166.250 MHz is "an ideal solution to the difficult
    problem of finding a suitably clear Public Safety channel for an
    island with huge seasonal population differentials and thus
    communications needs."[^12] IMSA further indicates that
    "\[e\]xtensive searching revealed that the extreme congestion in the
    VHF bands and the susceptibility of Martha's Vineyard to radio
    interference from Cape Cod, Rhode Island, Connecticut and Long
    Island, NY based stations preclude...frequency coordination for a
    Fire or EMS channel, and for inter-service frequencies from other
    public safety \[frequency coordinators\]."[^13] IMSA also submitted
    an amendment to its memorandum, including an attachment setting
    forth the public safety frequencies, and demonstrating that none of
    these frequencies are available or technically feasible.[^14]
    Furthermore, given its location (four miles off the southern coast
    of Massachusetts) and proposed power level (10 watts total power
    output for the base station), granting the captioned application
    "would cause no greater impact on \[remote pickup broadcast
    licensees\]" as compared to the impact from higher power public
    safety licensees within 150 miles of New York City.[^15] In this
    connection, on October 8, 2003, Dukes filed letters of concurrence
    from Hall Communications, Inc. and Sandab Communication, LTD,
    co-channel licensees operating on frequency 166.250 MHz in New
    Bedford, Massachusetts, and Barnstable, Massachusetts, respectively,
    acceding to Dukes' proposed operations.[^16]

5.  *Discussion.* To obtain a waiver of the Commission\'s Rules, a
    petitioner must demonstrate that a grant of the waiver would be in
    the public interest and the underlying purpose of the rule(s) would
    be frustrated or not served by application to the present case.[^17]
    Alternatively, a petitioner must show 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 that the applicant has no reasonable alternative.[^18] Based on
    the record in this proceeding, we find that the request for waiver
    of Section 90.20(d)(47) of the Commission\'s Rules is warranted
    because Dukes has demonstrated that it is faced with unique factual
    circumstances such that application of the rule would be contrary to
    the public interest, and Dukes has no reasonable alternative.

6.  We find that Dukes' geographical area of operation presents unique
    factual circumstances. In this regard, we acknowledge Dukes'
    representation that it is attempting to remedy the problem of radio
    dead spots due to the hilly terrain in certain areas of Martha's
    Vineyard. Additionally, we credit IMSA's contention that the huge
    seasonal population differentials have resulted in unique
    communications needs. Furthermore, the susceptibility of Martha's
    Vineyard to radio interference from four different areas---namely,
    Cape Cod, Rhode Island, Connecticut and Long Island, N.Y.---also
    place Martha's Vineyard in a unique situation. We also are persuaded
    that granting the requested waiver is in the public interest because
    it would significantly enhance Dukes\' coverage, system reliability,
    and ability to dispatch emergency communications in the Martha's
    Vineyard area, thereby promoting effective public safety
    communications.

7.  In addition, we find that Dukes has no reasonable alternative. In
    this regard, we note IMSA\'s assertion, supported by an extensive
    search of the Public Safety Pool VHF frequencies, that extreme
    congestion in the VHF bands and the susceptibility of Martha's
    Vineyard to radio interference from surrounding areas precluded
    frequency coordination of a Fire or EMS channel and for
    inter-service frequencies from other public safety services to meet
    the identified communications need. We further note that IMSA has
    provided an annotated printout of public safety channels from Local
    Government, Fire, Police, Highway Maintenance, Emergency Medical,
    Special Emergency and Forestry Conservation Radio Services that have
    been examined and determined to be unavailable or technically
    infeasible.[^19] Therefore, we grant Dukes' request for a waiver of
    Section 90.20(d)(47) of the Commission's Rules.

8.  In a related matter, we note that in addition to obtaining a waiver
    of Section 90.20(d)(47), Dukes must also obtain a waiver of note
    US11 to the Table of Frequency Allocations in Section 2.106 of the
    Commission's Rules to operate on 166.250 MHz. As discussed above,
    like Section 90.20(d)(47), note US11 restricts assignment of 166.250
    MHz for public safety operations to within 150 miles of New York
    City. Although a waiver of note US11 is likewise required, Dukes has
    not requested a waiver thereof. Therefore, on our own motion, we
    grant Dukes a waiver of note US11, for reasons discussed above.[^20]

9.  As noted above, non-Government use of 166.250 MHz is secondary to
    Government use. As such, this waiver is issued subject to the
    condition that harmful interference will not be caused to Federal
    government stations. Dukes is hereby advised that Federal government
    stations may be transitioning to narrowband operations and most are
    required to do so by January 1, 2005, *i.e*., operating 12.5 kHz
    bandwidth equipment\--in some cases using center frequencies
    \"offset\" 12.5 kHz from Dukes' center frequency(s). Federal
    government stations are licensed by the National Telecommunications
    and Information Administration (NTIA). Information on the Federal
    government\'s transition to narrowband operations is available on
    NTIA\'s Office of Spectrum Management home page at:
    [[http://www.ntia.doc.gov/osmhome/osmhome.html]{.underline}](http://www.ntia.doc.gov/osmhome/osmhome.html).
    Non-Federal licensees should also note that operation of \"25 kHz
    equipment\" increases the likelihood of causing interference to
    Federal government stations. If interference is caused, non-Federal
    users must cease operating and modify operations so as not to cause
    harmful interference to Federal government stations.

10. Accordingly, 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 1.3 and 1.925 of the Commission\'s Rules, 47 C.F.R. §§ 1.3,
    1,925, the Request for Waiver filed by the County of Dukes County,
    Massachusetts, on January 18, 2002, IS GRANTED, as set forth above.

11. IT IS FURTHER ORDERED, pursuant and Section 4(i) and 309(a) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), 309(a),
    that the Licensing and Technical Analysis Branch SHALL PROCESS FCC
    File No. 0000819118 in accordance with the Commission's Rules and
    this *Memorandum Opinion and Order*. Any grant of the captioned
    application SHALL BE CONDITIONED as set forth in paragraph 9, above.

12. 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 & Critical Infrastructure
    Division Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 90.20(d)(47).

[^2]: *See* Request for Waiver of Section 90.20(d)(47) of the
    Commission's Rules filed by the Commonwealth of Massachusetts,
    County of Dukes County, Office of the Sheriff, dated January 18,
    2002 (Dukes Waiver Request).

[^3]: *Id.*

[^4]: Table of Frequency Allocations, 47 C.F.R. § 2.106 note US11.

[^5]: *See* 47 C.F.R. § 2.106 note US11; 47 C.F.R. § 90.20(d)(47).

[^6]: *See* Table of Frequency Allocations, 47 C.F.R. § 2.106, note
    US11.

[^7]: *Id.*

[^8]: Dukes Waiver Request at 1.

[^9]: *Id.*

[^10]: *Id.*

[^11]: *See* Memorandum from International Municipal Signal Association
    (IMSA) to FCC, dated March 19, 2002 (IMSA Memo, March, 2002).

[^12]: *Id.*

[^13]: *Id.*

[^14]: *See* Attachment to Amended Memorandum from IMSA to FCC, dated
    June 12, 2002 (IMSA Memo, June, 2002).

[^15]: *See* Dukes Waiver Request at 2.

[^16]: See Letters of Concurrence from Hall Communications, Inc. (Hall),
    and Sandab Communication, LTD (Sandab), dated September 25, 2003.
    The Commission's licensing records reflect that there are two other
    broadcast auxiliary licensees within the vicinity of Dukes' proposed
    base station. Hall's station, KB55817, is located 36 kilometers
    (22.4 miles) from Dukes' proposed station, and Sandab's station,
    KQA841, is located 48 kilometers (29.8 miles) away.

[^17]: 47 C.F.R. § 1.925.

[^18]: *Id.*

[^19]: *See* Amended Memorandum from IMSA to FCC, dated June 12, 2002.

[^20]: We note that the National Telecommunications and Information
    Administration's (NTIA) Interdepartment Radio Advisory Committee
    (IRAC) has reviewed Dukes' request to operate on 166.250 MHz and has
    consented to such use. The IRAC is composed of representatives
    appointed by twenty-three member federal departments and agencies. A
    representative appointed by the Commission to serve in that capacity
    effects liaison between the IRAC and the FCC. The IRAC serves in an
    advisory capacity pertaining to the allocation, management, and use
    of the radio spectrum. The IRAC advises the Assistant Secretary for
    Communications and Information, U.S. Department of Commerce, and
    reports to the Deputy Associate Administrator, Office of Spectrum
    Management.