**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | * | > File No. 0001691866        |
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| COUNTY OF MORGAN, WEST VIRGINIA  | ) |                              |
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| To Operate a County-wide Public  | * |                              |
| Safety Radio System Utilizing    |   |                              |
| 220 MHz Band Frequencies         | * |                              |
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**ORDER**

**Adopted: May 10, 2006 Released: May 12, 2006**

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

1.  *Introduction.* We have before us an application and waiver request
    filed by the County of Morgan, West Virginia (Morgan County) for
    authority to operate a public safety land mobile radio system on
    fifteen frequencies in the 220 MHz band.[^1] Morgan County seeks
    waiver of certain technical rules governing operation in the 220 MHz
    band. For the reasons stated herein, we grant Morgan County's waiver
    request in part and deny it in part.

2.  *Background.* Morgan County is located in the northeast portion of
    West Virginia, adjacent to Maryland and Virginia. Morgan County
    states that it has upgraded its 911 center and is in the process of
    installing a new multi-site, simulcast radio dispatch system.[^2] In
    order to further upgrade its emergency response capabilities, Morgan
    County seeks the use of Channels 161-170 and 181-185 in the 220 MHz
    band. Channels 161-170 are designated for mutual aid use.[^3]
    Channels 181-185 are designated for non-nationwide, emergency
    medical use.[^4] As a public safety service provider and owner and
    operator of a full-service hospital, Morgan County qualifies for use
    of both sets of channels.[^5] Morgan County proposes to use the
    channels in support of mobile command centers that will provide
    on-scene emergency management capabilities and interoperability with
    neighboring governmental entities on a mutual aid basis.[^6]

3.  Morgan County requests waivers of two rule sections. First, Morgan
    County seeks a waiver of Section 90.729(a) of the Commission's
    Rules, which limits the effective radiated power (ERP) of Morgan
    County's proposed base stations to thirty watts, and limits the ERP
    of mobile units to fifty watts.[^7] Morgan County states that the
    limits may be appropriate in areas of flat terrain, but they are not
    sufficient to provide adequate coverage in the county's very
    mountainous terrain.[^8] As a result, Morgan County seeks authority
    to operate with 150 watts ERP for both its base and mobile stations.
    In support of its request, Morgan County provides a showing that it
    meets the co-channel distance separation and contour protection
    requirements of Section 90.723(k) of the Commission's Rules[^9] with
    respect to the nearest co-channel licensee, even with the increased
    power.[^10] Morgan County notes that it has been granted similar
    relief of applicable power limitations for its operations in the 150
    MHz band.[^11]

4.  Second, Morgan County seeks a waiver of Section 90.733(d) of the
    Commission's Rules[^12] to permit the combination of contiguous
    channels to form channels wider than five kilohertz. Section
    90.733(d) permits the combining of contiguous 220 MHz band channels
    *except* Channels 161-170 and 181-185, which Morgan County
    seeks.[^13] Each of the channels has a bandwidth of five
    kilohertz.[^14] Morgan County states that it seeks relief because it
    has been unable to locate a manufacturer that produces new 220 MHz
    equipment capable of operating on five kilohertz channels.[^15]
    Morgan County states that 12.5 kilohertz equipment and possibly 25
    kilohertz equipment are being manufactured in the 220 MHz band.[^16]

5.  On November 25, 2005, the Wireless Telecommunications Bureau's
    Public Safety and Critical Infrastructure Division placed Morgan
    County's application and waiver request on public notice.[^17] No
    comments or reply comments were filed.

6.  *Discussion.* Under Section 1.925(b)(3) of the Commission's Rules, a
    request for a rule waiver in the Wireless Telecommunications
    Services may be granted if it is shown that (a) the underlying
    purpose of the rule 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 (b) in view of unique or unusual
    factual circumstances of the instant case, application of the rule
    would be inequitable, unduly burdensome, or contrary to the public
    interest, or the applicant has no reasonable alternative.[^18] For
    the reasons stated below, we conclude that partial grant of the
    requested waiver is warranted, and the application should be granted
    in part.

7.  The purpose of Section 90.729 of the Commission's Rules is to permit
    sufficient power levels for satisfactory operation while reducing
    the possibility of interference.[^19] Under the first prong of the
    waiver standard, Morgan County has shown that grant of a waiver
    would be consistent with the underlying purpose of the rule under
    the circumstances presented, because Morgan County meets the
    relevant co-channel spacing and contour protection requirements. We
    also conclude that a waiver of Section 90.729 would be in the public
    interest*.* Morgan County has demonstrated that it needs additional
    power to provide adequate service to the mountains and valleys of
    eastern West Virginia. This need is reflected in the prior waiver
    grants with respect to Morgan County's 150 MHz band operations.

8.  The Commission specifically excluded Channels 161-170 and Channels
    181-185 from its decision to permit 220 MHz band licensees to
    aggregate five kilohertz channels into wider bandwidth channels
    because these channels were allocated, in part, to enable public
    safety entities to communicate with one another in emergencies, and
    permitting licensees to aggregate channels could result in some
    licensees employing five kilohertz technology while others employ
    non-standard bandwidths, which could limit the intended
    interoperability.[^20] Despite the reported absence of new
    narrowband equipment,[^21] we find that the underlying purpose of
    the Section 90.733(d) would be served, and would not be frustrated,
    by application to this case because operation on contiguous channels
    would not be interoperable with other licensees operating on single
    channels. Granting waiver requests like the one before us could
    result in pockets of non-interoperability, which would undermine the
    rule.[^22] Given that Morgan County intends to use these channels
    for mutual aid with other governmental agencies, contiguous channels
    would not be useful for this purpose unless the other agencies have
    obtained waivers of this rule as well. Morgan County has not shown
    this to be the case. With respect to the second prong of the waiver
    standard, Morgan County has not argued that its circumstances with
    respect to equipment availability are unique or unusual, or that
    application of the rule would be inequitable, unduly burdensome, or
    contrary to the public interest, or leave it with no reasonable
    alternative. For example, Morgan County has not explained why it
    cannot operate in any other spectrum band. Accordingly, we deny
    Morgan County's request for waiver of Section 90.733(d).

9.  *Conclusion and Ordering Clauses.* We conclude that Morgan County
    has justified its request for waiver of Section 90.729, but not its
    request for waiver of Section 90.733(d). We therefore grant Morgan
    County's request for waiver in part to operate a public safety
    communications system on frequencies in the 220-222 MHz band, and
    will process its application consistent with this *Order*.

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
    Section 1.925 of the Commission's Rules, 47 C.F.R. § 1.925, the
    request for waiver associated with the captioned application filed
    by the Morgan County IS GRANTED IN PART as set forth herein and IS
    OTHERWISE DENIED, application FCC File No. 0001691866 SHALL BE
    PROCESSED consistent with this *Order* and the Commission's Rules.

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

Michael J. Wilhelm

Chief, Public Safety and Critical Infrastructure Division

Wireless Telecommunications Bureau

[^1]: *See* FCC File No. 0001691866, filed on April 12, 2004, Supporting
    Statement and Waiver Request (Request).

[^2]: *Id*. at 1.

[^3]: *See* 47 C.F.R. § 90.720(b).

[^4]: *See* 47 C.F.R. § 90.719(c).

[^5]: *See* 47 C.F.R. §§ 90.719(c), 90.720(a).

[^6]: *See* Request at 1.

[^7]: 47 C.F.R. § 90.729(a), (b).

[^8]: Request at 1.

[^9]: 47 C.F.R. § 90.723(k).

[^10]: Request at 2-3, Attachment Two.

[^11]: Request at 1-2. *See*, *e.g.*, Licenses for Stations WPTD554 and
    WPTG353, Largent, West Virginia.

[^12]: 47 C.F.R. § 90.733(d).

[^13]: *Id*.

[^14]: *See* 47 C.F.R. § 90.209(b)(5).

[^15]: Request at 2.

[^16]: *Id*.

[^17]: *See* Wireless Telecommunications Bureau Seeks Comment on Request
    for Waiver by Morgan County, West Virginia, *Public Notice*, 20 FCC
    Rcd 188890 (WTB PSCID 2005).

[^18]: 47 C.F.R. § 1.925(b)(3).

[^19]: *See* Amendment of Part 90 of the Commission's Rules to Provide
    for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, *Memorandum Opinion and Order on Reconsideration*, GN
    Docket No. 93-252, 13 FCC Rcd 14569, 14607 ¶ 80 (1998).

[^20]: *See* Amendment of Part 90 of the Commission's Rules To Provide
    for the Use of the 220-222 MHz Band by the Private Land Mobile Radio
    Service, *Third Report and Order and Fifth Notice of Proposed
    Rulemaking*, PR Docket No. 89-552, RM-8506, 12 FCC Rcd 10943,
    10993-94 ¶ 102 (1997).

[^21]: *See* Request at 2. We note that technology exists for five
    kilohertz operation in the 220 MHz band. *See* U.S. Department of
    Commerce, National Telecommunications and Information
    Administration, *Alternative Frequencies for Use by Public Safety
    Systems: Response to Title XVII, Section 1705 of the National
    Defense Authorization Act for FY 2001*, 6 (Dec. 2001); National Law
    Enforcement and Corrections Technology Center, *Understanding
    Wireless Communications in Public Safety: A Guidebook to Technology,
    Issues, Planning, and Management*, 74 (Jan. 2003). We also note that
    other public safety entities continue to apply for authorization to
    operate on these five kilohertz channels without requesting waivers.
    *See*, *e.g.*, FCC File No. 00002453459 (filed Jan. 20, 2006).

[^22]: *See* Nextel Communications Inc., *Order*, 14 FCC Rcd 11678,
    11691-92 ¶ 31 (WTB 1999) (the Commission \"must not eviscerate a
    rule by a waiver\").