**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Nos. 0002923557,        |
|                                  | * | 0002923558, 0002932070       |
| STATE OF MINNESOTA               | ) |                              |
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| Request for Waiver of Section    | * |                              |
| 90.617(g)(1)                     |   |                              |
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**ORDER**

**Adopted: September 26, 2007 Released: September 27, 2007**

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

# Introduction 

1.  We have before us three applications filed by the State of Minnesota
    (Minnesota) seeking authority to expand their public safety land
    mobile operations on frequency 858.6625 MHz[^1] in the southeastern
    region of Minnesota.[^2] Minnesota seeks a waiver of Section
    90.617(g)(1) of the Commission's rules[^3] in order to use this
    frequency at six new sites prior to the end of the 800 MHz rebanding
    process in the region, the date by which the frequency would
    normally become available for public safety use.[^4] For the reasons
    discussed herein, we grant Minnesota's request.

# background

2.  Minnesota operates a statewide mobile data system in the 800 MHz
    band used by police patrol cars to share real-time data in emergency
    situations.[^5] The mobile data system consists of vehicular-mounted
    computers installed in every patrol car and ninety base stations
    situated across the state of Minnesota.[^6] In August 2005, as part
    of 800 MHz band reconfiguration, the operating frequency of three
    Minneapolis/St. Paul mobile data base stations in the system was
    retuned from General Category frequency 852.2875 MHz to frequency
    858.6625 MHz in the interleaved portion of the band, which was
    vacated by Sprint Nextel Corporation (Sprint) in the Minneapolis/St.
    Paul area to accommodate the assignment of the channel to
    Minnesota.[^7] Minnesota would now like to expand the operation of
    its mobile data system beyond the Minneapolis/St. Paul area by
    adding new sites in southeastern Minnesota that would also operate
    on the retuned channel, *i.e.*, 858.6625 MHz.[^8]

3.  Except in the Minneapolis/St. Paul area served by Minnesota's three
    existing mobile data base stations, frequency 858.6625 MHz remains
    licensed to Sprint on a wide-area basis throughout Minnesota.[^9] As
    part of rebanding, Sprint will vacate this frequency in its entirety
    at the end of the 36-month rebanding period,[^10] at which point
    Section 90.617(g)(1) of the Commission's rules provides that the
    frequency will become available for licensing to eligible public
    safety entities.[^11] Thus, under the applicable rule, Minnesota
    cannot apply to add new sites to its system on 858.6625 MHz until
    the conclusion of rebanding. Minnesota, however, wishes to expand
    its operations on this frequency before rebanding is concluded, and
    thus seeks a waiver of Section 90.617(g)(1).[^12]

4.  In support of its waiver request, Minnesota states that it urgently
    needs to extend its law enforcement mobile data network to the
    southeastern part of the state.[^13] Minnesota states that its first
    responders are very concerned about the lack of mobile data service
    in this area, and that this lack of service has adversely impacted
    their ability to respond to incidents efficiently, appropriately,
    and safely.[^14] In addition, Minnesota includes a letter from the
    American Association of State Highway and Transportation Officials
    (AASHTO), an 800 MHz frequency coordinator, indicating that no other
    Public Safety Pool frequencies are available in this area that would
    satisfy the technical requirements for Minnesota's proposed
    expansion.[^15] Finally, Minnesota has obtained Sprint's consent for
    Minnesota to add the requested sites on 858.6625 MHz before the end
    of the rebanding transition period.[^16]

# Discussion

5.  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 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,
    or the applicant has no reasonable alternative.[^17] We conclude
    that Minnesota's request should be granted under this waiver
    standard.

6.  Specifically, we find that Minnesota has demonstrated a compelling
    need to expand its operations on frequency 858.6625 MHz before the
    end of the rebanding transition period. Minnesota has successfully
    retuned its three existing mobile data base stations to this
    frequency as part of band reconfiguration, but under the rules, it
    cannot expand its mobile data system by adding new sites on the same
    frequency until all rebanding in the region is complete.[^18] We
    believe that requiring Minnesota to delay its expansion would be
    unduly burdensome and contrary to the public interest. Minnesota has
    demonstrated that it has no reasonable alternative to using this
    frequency because no Public Safety Pool frequency is available that
    will satisfy the minimum co-channel spacing requirements at the
    proposed sites.[^19] Granting the requested waiver serves the public
    interest because it will enable Minnesota to expand its mobile data
    system to meet immediate public safety needs in southeastern
    Minnesota. It will also have minimal impact on other public safety
    entities in Minnesota that might have an interest in obtaining new
    channels after rebanding is completed. The waiver only applies to a
    single channel in a limited geographic area, and this channel would
    be of limited utility to other public safety entities in any event
    because they would have to protect Minnesota's existing three base
    stations that already use the channel.

# CONCLUSION

7.  Based on the information before us, we find that Minnesota has
    satisfied the Commission's waiver criteria in support of its request
    for a waiver of Section 90.617(g)(1). Thus, we grant Minnesota's
    request to add the requested sites to its mobile data system on
    frequency 858.6625 MHz.

# ordering clauses

8.  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 Requests filed by the State of Minnesota with respect to
    applications FCC File Nos. 0002806667, 0002780258 and 0002777116
    **ARE GRANTED** as noted herein.

9.  **IT IS FURTHER ORDERED** that the Policy Division of the Public
    Safety and Homeland Security Bureau **SHALL PROCESS** application
    FCC File Nos. 0002923557, 0002923558 and 0002932070 in accordance
    with this *Order* and the Commission's rules.

10. 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 Furth

Associate Bureau Chief

Public Safety and Homeland Security Bureau

[^1]: This frequency is paired with frequency 813.6625 MHz, which is
    incorporated by reference for purposes of this Order.

[^2]: *See* FCC File Nos. 0002923557, 0002923558 and 0002932070.

[^3]: 47 C.F.R. § 90.617(g)(1).

[^4]: *See* letter from Colonel Mark A. Dunaki, Chief Minnesota State
    Patrol, to Federal Communications Commission, Wireless
    Telecommunications Bureau (Aug. 27, 2007) (attached to applications
    0002923557, 0002923558 and 0002932070) (Minnesota Supplemental
    Waiver Request). *See also* 47 C.F.R. § 90.617(g)(1).

[^5]: Minnesota Supplemental Waiver Request at 1.

[^6]: *Id.*

[^7]: *See* letter from Guy Chambers, Radio Engineer, State Patrol
    Radio, Minnesota Department of Transportation to Federal
    Communications Commission, Wireless Telecommunications Bureau (Feb.
    9, 2007) (attached to applications 0002923557, 0002923558 and
    0002932070) (Minnesota Initial Waiver Request).

[^8]: Minnesota Supplemental Waiver Request at 1.

[^9]: *See* licenses WPSB638, WPSB639, WPSB640, WPSB642, WPSB643,
    WPSB646 and WPSB649.

[^10]: See Improving Public Safety Communications in the 800 MHz Band,
    WT Docket 02-55, Third Memorandum Opinion and Order, FCC 07-167 ¶ 28
    (2007).

[^11]: Certain SMR-category frequencies will become available for
    licensing to eligible entities in the Public Safety pool once the
    Commission releases a public notice announcing the completion of
    band reconfiguration in a given 800 MHz NPSPAC region. *See* 47
    C.F.R. § 90.617(g)(1).

[^12]: Minnesota Supplemental Waiver Request at 1.

[^13]: *Id.* at 2.

[^14]: *Id.*

[^15]: *See* letter from, William K. Brownlow, Telecommunications
    Manager, National PH Frequency Coordinator, American Association of
    State Highway and Transportation Officials (Aug. 27, 2007) (AASHTO
    Frequency Coordination Letter).

[^16]: *See* letters from Garrie C. Losee, Legal Analyst, Government
    Affairs, Sprint Nextel Corporation to the Public Safety Homeland
    Security Bureau, Federal Communications Commission (Jan. 23, 2007)
    attached to applications 0002923557, 0002923558 and 0002932070.

[^17]: 47 C.F.R. §§ 1.925(b)(3)(i-ii).

[^18]: Minnesota Initial Waiver Request.

[^19]: AASHTO Frequency Coordination Letter.