**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FCC File No. 0000427005      |
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| SOUTHWEST CENTRAL DISPATCH       | ** |                              |
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| Request for Waiver of Section    | *  |                              |
| 101.81 of the Commission's Rules | *) |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: August 6, 2002 Released: August 8, 2002**

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

**I. INTRODUCTION**

1\. On December 6, 2001, Southwest Central Dispatch (Southwest Central)
filed a request for reconsideration[^1] of the Public Safety and Private
Wireless Division's (Division) November 8, 2001 *Order*[^2] denying
Southwest Central's request to grant its application for a new license
to operate a Fixed Microwave Services (FMS) station[^3] in the 2 GHz
band with primary status. For the reasons set forth below, we grant
Southwest Central's Reconsideration Petition.

**II. BACKGROUND**

2\. The Commission has reallocated portions of the 2 GHz band from FMS
to emerging technology (ET) services, including the personal
communications services.[^4] To this end, the Commission has adopted
certain transition rules.[^5] In doing so, the Commission balanced the
needs of incumbent FMS licensees to continue to operate their systems
with the need to conserve vacant 2 GHz spectrum for use by ET licensees,
to provide ET licensees with a stable environment in which to plan and
implement new services, and to prevent ET licensees from bearing any
additional costs of relocating FMS licensees.[^6] Thus, rather than
immediately clearing the 2 GHz band of the incumbent FMS users, the
Commission permits the incumbents to continue to occupy the band on a
co-primary basis with the ET licensees for a significant length of time,
by the end of which the incumbents are to relocate to other
spectrum.[^7] ET licensees have the option, however, of requiring the
FMS incumbents to relocate sooner if they pay the additional costs
caused by the earlier relocation.[^8] In addition, we authorize new FMS
stations, extensions of existing FMS systems, and major modifications of
existing FMS stations only on a secondary basis to ET systems.[^9] Most
minor modifications of FMS stations are also authorized on a secondary
basis unless the licensee can demonstrate that it needs primary status
and that the modifications will not add to the relocation costs to be
paid by the ET licensee.[^10] The result is that while incumbent FMS
licensees are able to continue operating their systems with primary
status -- as those systems currently exist -- any expansions and most
modifications to the systems result in secondary status.

3\. Southwest Central is an intergovernmental cooperation association
created in 1985.[^11] Southwest Central's fifteen members are all units
of local government, *i.e.*, municipalities that operate fire and/or
police departments and fire protection districts that operate fire
departments.[^12] The number of individuals served by Southwest
Central's police/fire/EMS agencies exceeds 200,000 citizens who are
situated in about 210 square miles contained within three Illinois
counties.[^13]

4\. FMS Station WNES989, Willow Brook, Illinois, provided a 2 GHz link
within Southwest Central's radio communications network.[^14] Due to
administrative error, Southwest Central failed to renew the license for
Station WNES989 in a timely manner, and, thus, the license expired on
August 5, 1998.[^15] On April 13, 2001, Southwest Central filed an
application for a new license for the station.[^16] In July 2001,
Southwest Central filed a request for waiver of Section 101.81 of the
Commission's Rules[^17] that provides that new FMS stations in the 2 GHz
band will be authorized on a secondary basis to ET licenses. On November
8, 2001, the Division denied Southwest Central's waiver request.[^18] We
concluded that, based on the record before us, Southwest Central had not
demonstrated circumstances justifying a grant of its waiver
request.[^19]

5.  On December 6, 2001, Southwest Central filed its Reconsideration
    Petition. Southwest

Central argues that we should reconsider our decision in the *Nov. 8
Order* and grant its request for waiver of Section 101.81 of the
Commission's Rules, because a grant of a waiver would be in the public
interest, and denial would leave it with no reasonable alternative.[^20]

**III. DISCUSSION**

6\. First, Southwest Central argues that, in the *Nov. 8 Order*, we
erroneously concluded that the only ground upon which Southwest Central
requested a waiver of the Commission's Rules was because Southwest
Central did not receive a renewal notice from the Commission stating
that the subject license was about to expire.[^21] Southwest Central
argues that it also requested a waiver on ground that the public safety
communications would be compromised if it did not maintain primary
status, and suggests that the Division did not take this into
account.[^22] In fact, however, the Division did take into account the
potential effect on public safety of a denial of the waiver request to
the extent it was reflected in the record. In support of its waiver
request, Southwest Central stated:

Southwest Central Dispatch, a governmental cooperation association by
state statute, is a multi-jurisdictional E9-1-1 communications center
which provides primary emergency radio communication and dispatch
services for a combination of eighteen Police, Fire and EMS agencies
throughout a three county area encompassing portions of DuPage, Cook and
Will Counties. These microwave stations provide the conduit for primary
emergency radio, burglary, invasion and fire alarms and data
transmissions for Southwest Central Dispatch by connection of a series
of remote sites and base station transmitters and receivers within this
dispatch system. These microwave paths are one link of several existing
2 GHz systems serving the same service area for which emergency
communications are provided by Southwest Central Dispatch.[^23]

We clearly took the potential impact on public safety communications
into account in arriving at our decision, as shown by the fact that the
*Nov. 8 Order* reflects the information Southwest Central provided.[^24]

7\. Southwest Central now seeks to present additional information
regarding its operations and the potential impact of the denial of its
waiver request.[^25] We note, as an initial matter, that none of this
information was presented earlier. Section 1.106(c) of the Commission's
Rules limits the circumstances in which a petitioner can rely on new
information on reconsideration to the following: 1) the petition relies
on facts which relate to events which have occurred or circumstances
which have changed since the last opportunity to present such matters;
2) the petition relies on facts unknown to petitioner until after its
last opportunity to present such matters which could not, through the
exercise of ordinary diligence, have been learned prior to such
opportunity; or 3) consideration of the facts relied on is required in
the public interest.[^26] Because the new information relates to the
safety of the public, we agree with Southwest Central[^27] that
consideration of the additional information is the public interest.[^28]

8\. In this case, while the station at issue was originally authorized
with primary status, Southwest Central allowed its license for the
station to expire. Southwest Central requests a waiver of the rules so
that its new license for the station can be accorded primary status. We
may grant a request for waiver when (i) the underlying purpose of the
rule(s) would not be served or would be frustrated by application to the
instant case, and a grant of the requested waiver would be in the public
interest; or (ii) in view of the unique or unusual circumstances of the
case, application of the rule would be inequitable, unduly burdensome or
contrary to the public interest, or the applicant has no reasonable
alternative.[^29] Southwest Central argues that the additional
information it has submitted demonstrates that this case falls within
the second prong of the waiver standard.[^30]

9\. First, Southwest Central argues that application of Section 101.81
would be contrary to the public interest.[^31] According to Southwest
Central, should we deny it primary status, the public's safety would be
significantly and negatively affected by ET interference.[^32] Southwest
Central asserts that interference from ET licensees would result in
certain police, fire, and EMS agencies[^33] receiving incomplete or no
information regarding pending emergencies, resulting in personal and
pecuniary injury to the citizens that Southwest Central serves.[^34] In
addition, Southwest Central contends that other member agencies would be
unable to seek assistance from these agencies during emergency
situations.[^35]

10\. Second, Southwest Central argues that application of the rule would
leave it with no reasonable alternative.[^36] According to Southwest
Central, its use of FMS frequencies eliminates the common errors and
failures associated with other methods of connectivity*, i.e.*,
telephone lines and buried cables.[^37] It argues that a FMS system is
the only way it can satisfy its public safety communications
requirements, because of the topography of the area in question, which
includes extreme high and low elevations, forests, and high tension
wires, and because of the area's violent weather.[^38] Southwest Central
adds that a FMS system operating in a higher frequency band is not an
option because such a system would require additional links which, given
the geographical nature of the area that it serves, along with the
paucity of suitable parcels of land or buildings, it would be unable to
construct.[^39] Additionally, Southwest Central argues that construction
of a new system would be unduly burdensome because of the significant
expense it would impose on the small governmental entities that comprise
its membership.[^40] Southwest Central also notes that its members would
be deprived of emergency dispatching services during the two or three
years needed to construct such a new FMS system.[^41]

11\. That a licensee engages in public safety activities does not by
itself justify grant of a waiver after a license is inadvertently
allowed to expire.[^42] We conclude, however, that, as Southwest Central
has demonstrated a confluence of unusual factors under the circumstances
presented, a grant of its waiver request is appropriate. We place
particular importance on the fact that grant of a waiver could further
interoperability of public safety communications among neighboring
jurisdictions.[^43] We also persuaded that, given the terrain and
related considerations, Southwest Central has few if any other
options.[^44] Given the adverse impact to public safety communications
that a disruption of emergency radio communications could create, in
addition to the other factors discussed above, we believe that the
waiver to afford Southwest Central primary status should be
granted.[^45] However, we admonish Southwest Central to conform to the
renewal requirement, and the Commission's other licensing rules, in the
future.

**IV. CONCLUSION**

12\. Southwest Central has provided a showing of unique or unusual
circumstances demonstrating that application of Section 101.81 would be
inequitable, unduly burdensome or contrary to the public interest, or
that it has no reasonable alternative. We therefore grant Southwest
Central's Reconsideration Petition and reverse our decision in our *Nov.
8 Order*.

**V. ORDERING CLAUSES**

13\. **ACCORDINGLY, IT IS ORDERED** that pursuant to Sections 4(i) and
405 of the Communications Act of 1934, 47 U.S.C. §§ 154(i), 405, and
Sections 1.3 and 1.106 of the Commission\'s Rules, 47 C.F.R. §§ 1.3,
1.106, the Reconsideration Petition, filed on December 6, 2001, by
Southwest Central **IS GRANTED**.

14\. IT IS FURTHER ORDERED that the license for Station WPTQ259, Willow
Brook, Illinois, SHALL BE MODIFIED consistent with this *Order on
Reconsideration* and the applicable Commission rules.

15\. This action is taken under designated 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 Private Wireless Division Wireless
Telecommunications Bureau

[^1]: Southwest Central Dispatch Petition for Reconsideration (filed
    Dec. 6, 2001) (Reconsideration Petition). On February 14, 2002,
    Southwest Central filed with the Commission a supplement to its
    Reconsideration Petition. Supplement to Reconsideration Petition
    (filed Feb. 14, 2002) (Supplement).

[^2]: Southwest Central Dispatch, *Order*, 16 FCC Rcd 19509 (WTB PSPWD
    2001) (*Nov. 8 Order*).

[^3]: Station WNES989, Willow Brook, Illinois.

[^4]: Redevelopment of Spectrum to Encourage Innovation in the Use of
    New Telecommunications Technologies, *First Report and Order and
    Third Notice of Proposed Rule Making*, ET Docket No. 92-9, 7 FCC Rcd
    6886 (1992) (*ET First Report and Order*).

[^5]: *See* 47 C.F.R. §§ 101.69-101.81. The rules are intended to
    reaccommodate the FMS licensees in a manner that would be most
    advantageous for the incumbent users, least disruptive to the
    public, and most conducive to the introduction of new services. *ET
    First Report and Order*, 7 FCC Rcd at 6886 ¶ 5.

[^6]: *ET First Report and Order*, 7 FCC Rcd at 6886 ¶ 5, 6891 ¶ 30;
    Amendment to the Commission's Rules Regarding a Plan for Sharing the
    Costs of Microwave Relocation, *First Report and Order and Further
    Notice of Proposed Rule Making*, WT Docket No. 95-157, 11 FCC Rcd
    8825, 8867-69 ¶¶ 86-88 (1996) (*Cost Sharing First Report and
    Order*).

[^7]: 47 C.F.R. §§ 101.69(b), 101.79(a). *See also ET First Report and
    Order*, 7 FCC Rcd at 6886 ¶ 5.

[^8]: *See* 47 C.F.R. §§ 101.69(a), 101.71-101.77

[^9]: 47 C.F.R. § 101.81. Secondary operations may not cause
    interference to operations authorized on a primary basis (*e.g.*,
    the new ET licensees) and they are not protected from interference
    from primary operations. *Cost Sharing and First Report and Order*,
    11 FCC Rcd at 8869 ¶ 89. Thus, an incumbent operating under a
    secondary authorization must cease operations if it poses an
    interference problem to an ET licensee. *Id*.

[^10]: 47 C.F.R. § 101.81.

[^11]: Reconsideration Petition at 4.

[^12]: *Id*.

[^13]: *Id*. at 5.

[^14]: *Id.*

[^15]: *Nov. 8 Order*, 16 FCC Rcd at 19510 ¶ 3.

[^16]: FCC 601 Main Form: FCC Application for Wireless
    Telecommunications Bureau Radio Service Authorization, File Number:
    0000427005 (filed April 13, 2001)

[^17]: 47 C.F.R. § 101.81.

[^18]: Although we denied Southwest Central's request that we waive
    Section 101.81 of the Commission's Rules, we directed the Division's
    Licensing and Technical Analysis Branch (Branch) to grant Southwest
    Central's April 13, 2001 application for a new license on a
    secondary basis. On November 20, 2001, the Branch granted the
    license under Call Sign WPTQ259.

[^19]: *Nov. 8 Order*, 16 FCC Rcd at 19511-12 ¶¶ 6-7.

[^20]: Reconsideration Petition at 4-8.

[^21]: *Id.* at 2-3.

[^22]: *Id.* at 3.

[^23]: Letter, dated July 12, 2001, from William D. Shanley, Director,
    Southwest Central Dispatch, to Susan Mickley, Microwave Section,
    Wireless Telecommunications Bureau, Federal Communications
    Commission (filed July 13, 2001).

[^24]: *See Nov. 8 Order*, 16 FCC Rcd at 19510 ¶ 3.

[^25]: Reconsideration Petition at 4-7.

[^26]: 49 C.F.R. § 1.106(c).

[^27]: *See* Reconsideration Petition at 4 n.2.

[^28]: *See*, *e.g.*, Billy Williford d/b/a Jasper Mobil Phone, Order,
    17 FCC Rcd 477, 479 ¶ 6 (WTB CWD PRB 2002). We will not, however,
    consider the Supplement that Southwest Central filed to its
    Reconsideration Petition on February 14, 2002. Section 1.106(f) of
    the Commission's Rules says that supplements shall be filed within
    30 days from the date of public notice of the final Commission
    action. 47 C.F.R. § 1.106(f). Any supplement filed after that time
    will be considered only upon leave granted to file. *Id.* Our
    records do not show that Southwest Central requested leave to file
    its Supplement. Moreover, we note that the Supplement largely
    repeats the arguments found in the Reconsideration Petition. To the
    extent it presents new information, Southwest Central fails to
    demonstrate why that information was not presented earlier.

[^29]: 47 C.F.R. § 1.925(b)(3).

[^30]: Reconsideration Petition at 4-8.

[^31]: *Id.* at 4.

[^32]: *Id*.

[^33]: Specifically, 1) Village of Clarendon Hills Police Department, 2)
    Village of Willowbrook Police Department, 3) Village of Lemont
    Police Department, 4) Village of Clarendon Hills Fire Department,
    and 5) Lemont Fire Protection District. *Id*. at 5. Southwest
    Central states that the microwave path including Station WNES989 is
    the only existing communication link to its emergency radio network
    for these agencies. *Id*.

[^34]: *Id*. at 7.

[^35]: *Id.*

[^36]: *Id*. at 6.

[^37]: *Id*.

[^38]: *Id*.

[^39]: *Id*.

[^40]: *Id*.

[^41]: *Id*.

[^42]: Amendment of Parts 1 and 90 of the Commission's Rules Concerning
    the Construction, Licensing, and Operation of Private Land Mobile
    Radio Stations, *Report and Order*, PR Docket No. 90-481, 6 FCC Rcd
    7297, 7301 ¶ 20 (1991).

[^43]: *See*, *e.g.*, City of Santa Monica, California, *Order*, 15 FCC
    Rcd 24938, 24942 ¶ 13 (WTB PSPWD 2000). The Commission places great
    importance on facilitating public safety interoperability. *See*,
    *e.g.*, The Development of Operational, Technical and Spectrum
    Requirements For Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010, *Fourth
    Memorandum Opinion and Order*, 17 FCC Rcd 4736, 4746 ¶ 24 (2002).

[^44]: *See* Wilderness Valley Telephone Co., *Order*, 15 FCC Rcd 11751,
    11752-53 ¶¶ 3, 6 (WTB PSPWD 2000) (granting waiver because terrain
    and other conditions limited applicant's ability to comply with the
    rules).

[^45]: *See* Monroe County, *Order on Reconsideration*, 16 FCC Rcd
    16447, 16449 ¶ 7 (WTB PSPWD 2001).