**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

DATARADIO CORPORATION )

)

Emergency Petition for Waiver of Section 90.547 )

of the Commission\'s Rules )

**ORDER ON RECONSIDERATION**

**Adopted:** December 6, 2001 **Released:** December 10, 2001

By the Deputy Chief, Wireless Telecommunications Bureau:

1\. *Introduction*. On December 14, 2000, Dataradio Corporation
("Dataradio") requested reconsideration[^1] of a decision by the Public
Safety and Private Wireless Division ("Division") Wireless
Telecommunications denying Dataradio's request for an emergency waiver
Section 90.547 of the Commission\'s Rules, 47 C.F.R. § 90.547.
Specifically, Dataradio seeks to manufacture mobile and portable
transmitters that are incapable of operating on the narrowband
nationwide Interoperability channels in the 764-776 MHz and 794-806 MHz
bands (collectively, the 700 MHz band).[^2] For the reasons stated
below, we deny Dataradio's Petition.

2\. *Background*. On September 29, 1998, the Commission established a
band plan and adopted service rules for the public safety 700 MHz
band.[^3] The Commission apportioned the 700 MHz band use designations
for General Use, Interoperability,[^4] and reserved for later
designation.[^5] At that time, the Commission required that all
narrowband[^6] mobile and portable 700 MHz band public safety radios be
capable of operating on all of the narrowband nationwide
Interoperability channels.[^7] In addition, it established the Public
Safety National Coordination Committee ("NCC"), an advisory committee
established under the Federal Advisory Committee Act ("FACA"),[^8] to
make recommendations to the Commission regarding technical standards for
the equipment operating on the Interoperability channels in the 700 MHz
band.

3\. On December 20, 1999, Dataradio requested a waiver of Section 90.547
to allow it to manufacture 700 MHz band public safety radios incapable
of operating on the narrowband nationwide Interoperability channels.[^9]
On February 25, 2000, the NCC submitted its report to the Commission
recommending, *inter alia*, digital interoperability standards for both
voice and narrowband data communications.[^10] On August 2, 2000, the
Commission sought comment in WT Docket No. 96-86 on the NCC Report.[^11]

4\. On November 14, 2000, the Division released an order denying
Dataradio's request for waiver. The Division analyzed the waiver request
under to Section 1.925(b)(3) of the Commission's Rules, 47 C.F.R. §
1.925(b)(3), which provides that grant of a request for waiver is
warranted if (a) the underlying purpose of the rule would not be served
or would be frustrated by application to the instant case, and grant of
a waiver would be in the public interest; or (b) in view of unique or
unusual factual circumstances, application of the rule would be
inequitable, unduly burdensome or contrary to the public interest, or
the applicant has no reasonable alternative.[^12] The Division concluded
that Dataradio did not demonstrate that grant of its request was
warranted under either standard. In this regard, it noted that the rules
for public safety use of the 700 MHz band were designed to promote and
facilitate achievement of nationwide interoperability. Thus, anything
obstructing interoperability capability would undermine the efficiency
of the use of the 700 MHz band and the Commission's express goals.[^13]
The Division disagreed with Dataradio that granting its waiver request
would not impact realization of nationwide interoperability. It stated
that granting Dataradio's request would jeopardize the Commission's
overall plan to achieve interoperability because entities purchasing
non-interoperability capable radios most likely would be reluctant
and/or unable to buy compliant radios within a short timeframe.[^14] The
Division also found that Dataradio's position as a manufacturer of
radios was not unique because all manufacturers of radios intended for
use in the 700 MHz band are under the purview of Section 90.547, and
that Dataradio had reasonable alternatives within the existing
Rules.[^15] Finally, the Division disagreed with Dataradio that it would
be years before digital interoperability standards are approved, because
the record showed that the process for establishing such standards was
proceeding timely and with reasoned decision-making and administrative
due process, as shown by, collectively, the NCC Report and the *Fourth
Notice*.[^16]

5\. On December 14, 2000, Dataradio requested reconsideration of the
*Waiver Order* to the extent it relates to data-only radio systems.[^17]
Com-Net Ericsson Critical Radio Systems ("Com-Net Ericsson") filed
comments in support of Dataradio's Petition.[^18]

6\. Dataradio also filed comments in response to the *Fourth Notice*. On
January 17, 2001, the Commission released the *Fourth Report and Order*
in WT Docket No. 96-86.[^19] The Commission adopted the Project 25 Phase
I (Project 25) data interoperability standard and observed that most
parties filing comments in response to the *Fourth Notice* believed that
adoption of this standard was appropriate.[^20] While noting Dataradio's
opposition to the NCC's Project 25 recommendation, the Commission
explained its reasoning for finding that Project 25 was the appropriate
data interoperability standard.[^21]

7\. *Discussion*. In requesting reconsideration of the *Waiver Order*,
Dataradio raises two main arguments. First, it contends that the denial
of its waiver request contravenes both the Congressional mandate
concerning the commencement of the licensing of the public safety 700
MHz band spectrum and the Commission's rules.[^22] In support thereto,
Com-Net Ericsson states that granting the waiver would augment the main
goal underlying allocation of the 700 MHz band as public safety spectrum
and would not impede the secondary objective of achieving data
interoperability.[^23] Second, Dataradio argues that the
interoperability standard proposed in the *Fourth Notice* is
procedurally defective and substantively inadequate, and should not be
relied upon to foreclose a grant of its waiver request.[^24]

8\. With regard to Dataradio's first argument, Dataradio maintains that
the paramount policy consideration in WT Docket No. 96-86 is the release
and assignment of the 700 MHz band to meet immediate public safety
communications requirements.[^25] Dataradio asserts that granting the
waiver request will help achieve this goal. Similarly, Dataradio asserts
that the policy goals underpinning the need for voice interoperability
are different from those pertaining to data-only systems.[^26] We find
these arguments to be without merit. The paramount policy consideration
in the 700 MHz band proceeding is to promote the efficient and effective
use of the spectrum in an effort to meet the present and future public
safety communications needs.[^27] We believe that this consideration
applies equally to interoperability (both voice and data) and data-only
systems. The Commission, in the *Fourth Report*, specifically adopted
and identified two interoperability channels for data transmission,[^28]
and adopted the data interoperability standard incorporated in the
Project 25 suite of standards.[^29] As a result, it is apparent that the
Commission sought to ensure that its policy goals regarding
interoperability be met not only with respect to voice transmissions but
also for data-only systems. Thus, we concur with the Division's
conclusion that grant of Dartaradio's request could impede the
Commission's interoperability goals. Further, Dataradio has not
demonstrated that the Commission's goals would not be impeded by grant
of its request.

9\. In addition, we disagree with Dataradio's argument that denying its
waiver request goes against the Congressional mandate to begin licensing
the 700 MHz band to meet immediate public safety communications
requirements.[^30] Congress required the Commission to "commence
assignment of licenses" for this spectrum by September 30, 1998.[^31]
The Commission fulfilled this mandate. The service rules it adopted in
the *First Report* gave effect to each provision of the statutory
definition of public safety services for which the spectrum was
allocated, in order to begin licensing expeditiously and with minimal
information submission requirements or similar regulatory burdens.[^32]
In particular, the *First Report* permitted, *e.g.*, Regional Planning
Committees for the 700 MHz public safety band to convene and commence
working on plans concurrent with the effective date of the *First
Report.*[^33] As a result, we are unpersuaded that denying the waiver
request is at odds with the Congressional mandate.

10\. Dataradio also argues that Section 90.547 of the Commission's Rules
requires only that, once a valid standard is adopted, all data-only
radios must comply with the standard.[^34] In the interim, it contends
that the rule should not effectively deny access to the General Use data
channels.[^35] We disagree. Section 90.547 requires that mobile and
portable transmitters designed pursuant to standards adopted by the NCC
to operate on the 700 MHz band must be capable of operating on any of
the designated nationwide narrowband Interoperability channels approved
by the Commission.[^36] Under the Commission's rules, only equipment
that complies with the interoperability standard the Commission adopts
may be used on these channels.[^37] Therefore, equipment that precedes
the adoption of the standard is prohibited by Section 90.547, because it
does not meet the requirements for operation on the interoperability
channels. Moreover, given that the Commission has in fact adopted a
standard, we believe that Dataradio's concern about a long lapse in time
between there being an applicable standard has not come to fruition.
Thus, we no longer see this concern as a strong basis for granting the
requested relief.

11\. With regard to Dataradio's second argument, Dataradio asserts that
the NCC's recommended data interoperability standard was adopted by the
NCC in violation of the procedural due process requirements of the
FACA.[^38] It thus contends that it would be unlawful for the Commission
to adopt such data standard.[^39] Dataradio further contends that
Project 25 should not be the data interoperability standard and,
therefore should not preclude grant of its request for waiver.[^40]

12\. We do not find these arguments to be persuasive. In its comments to
the *Fourth Notice*, Dataradio contested both the procedural and
substantive adequacy of the NCC's decision to adopt the Project 25
standard.[^41] The Commission did not find Dataradio's arguments
persuasive, and ultimately adopted the proposed standard in the *Fourth
Report*.[^42] We will not, in this waiver request proceeding, entertain
a collateral attack on the Commission's decision. The appropriate avenue
to pursue these issues further was to seek reconsideration of the
*Fourth Report*. Dataradio did not do so, and may not do so here.[^43]
Thus, to the extent Dataradio seeks to revisit the Commission's
decisions in the Fourth Report in WT Docket No. 96-86, we dismiss its
Petition as moot given that the Commission has already addressed the
matter and Daradio did not submit a timely petition for reconsideration.

13\. In sum, we conclude that both the *Waiver Order*, which correctly
found that Dataradio did not make the requisite showing under Section
1.925(b) for waiver of Section 90.547, and the Commission's actions
taken in its *Fourth Report*, together warrant denial of Dataradio's
Petition.

14\. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 405
of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405,
and Section 1.106 of the Commission\'s Rules, 47 C.F.R. § 1.106, the
petition for reconsideration filed by Dataradio Corporation on December
14, 2000 IS DENIED.

15\. 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

Kathleen O'Brien Ham

> Deputy Chief, Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration, filed December 14, 2000, by
    Dataradio Corporation ("Petition").

[^2]: Dataradio Corporation, *Order*, 15 FCC Rcd 22283 (WTB PSPWD 2000)
    ("*Waiver Order*"). Dataradio develops, manufactures, and implements
    wireless products and networks supporting data applications for
    mobile and fixed uses in the public safety and private wireless
    communities. *Id.* at 22284 ¶ 3.

[^3]: Development of Operational, Technical and Spectrum Requirements
    for Meeting Federal, State and Local Public Safety Agency
    Communication Requirements Through the Year 2010, *First Report and
    Third Notice of Proposed Rule Making*, WT Docket No. 96-86, 14 FCC
    Rcd 152 (1998) ("*First Report*").

[^4]: The term "interoperability" refers to the ability of different
    governmental agencies to communicate across jurisdictions and with
    each other. *See id*. at 189-90 ¶ 76.

[^5]: *See* *id.* at 175-76 ¶ 43. The allocation was 52.5% for General
    Use, 10.8% for Interoperability, and 36.7% held in reserve*. Id.*
    Subsequent Commission actions expanded band use designations
    resulting in allocations and designations now being as follows:
    52.1% for General Use, 10.8% for Interoperability, 25.0% held in
    reserve, 10.0% for State License, 0.8% for secondary trunking, and
    1.3% for low power. *See* Development of Operational, Technical and
    Spectrum Requirements for Meeting Federal, State and Local Public
    Safety Agency Communication Requirements Through the Year 2010,
    *Third Memorandum Opinion and Order and Third Report and Order*, WT
    Docket No. 96-86, 15 FCC Rcd 19844, 19848 ¶ 7 (2000).

[^6]: The term "narrowband" refers to bandwidth less than or equal to 25
    kHz. 47 C.F.R. § 90.531 sets forth the band plan for the 764-776 MHz
    and 794-806 MHz public safety bands.

[^7]: *First Report*, 14 FCC Rcd at 213 ¶ 135; *see also* 47 C.F.R. §
    90.547.

[^8]: 5 U.S.C., App. 2 (1988).

[^9]: At the time of Dataradio's waiver request and release of the
    *Waiver Order*, Section 90.547 read as follows: "Mobile and portable
    transmitters designed pursuant to standards adopted by the National
    Coordination Committee to operate in the 764-776 MHz and 794-806 MHz
    frequency bands must be capable of operating on any of the
    designated nationwide narrowband interoperability channels approved
    by the Commission." 47 C.F.R. § 90.547 (1999).

[^10]: *See* Public Safety National Coordination Committee,
    Recommendations to the Federal Communications Commission for
    Technical and Operational Standards for Use of the 764-776 MHz and
    794-806 MHz Public Safety Band Pending Development of Final Rules
    (Feb. 25, 2000) ("NCC Report").

[^11]: Development of Operational, Technical and Spectrum Requirements
    for Meeting Federal, State and Local Public Safety Communication
    Requirements Through the Year 2010; Establishment of Rules and
    Requirements of Priority Access Service, *Fourth Notice of Proposed
    Rule Making*, WT Docket No. 96-86, 15 FCC Rcd 16899 (2000) ("*Fourth
    Notice"*). With respect to narrowband low speed data transmission
    standards, the NCC recommended that the Commission adopt the data
    interoperability standard that is incorporated in the Project 25
    suite of standards, and is defined by one American National
    Standards Institute ("ANSI") standard and four Telecommunications
    Industry Association/European Technical Standards Institute
    ("TIA/EIA") standards. NCC Report at 21 ¶ 64. Specifically, the
    Commission's proposal for interoperability technical standards read
    as follows: "Transmitters designed for data transmission shall
    include a 12.5 kHz bandwidth mode of operation conforming to the
    following standards: ANSI/TIA/EIA 102.BAEA (data overview);
    ANSI/TIA/EIA 102.BAEB (packet data specification); ANSI/TIA/EIA
    102.BAEC (circuit data specification); ANSI/TIA/EIA 102.BAEA (radio
    control protocol); ANSI/TIA/EIA 102.BAAA-1 (common air interface)
    for operation in the 12.5 kHz FDM mode. *Fourth Notice*, 15 FCC Rcd
    at 16932 App. B.

[^12]: *Waiver Order*, 15 FCC Rcd at 22284 ¶ 4.

[^13]: *Id.* at 22285 ¶ 7.

[^14]: *Id*. at 22287 ¶ 11.

[^15]: *Id*. at 22288 ¶ 13.

[^16]: *Id*. at 22288-89 ¶¶ 14-15.

[^17]: In seeking comment on the NCC Report, the Commission proposed to
    revise Section 90.547 to provide, "Subscriber units designed for
    data-only applications are not required to have voice capability.
    Subscriber units designed for voice-only applications are not
    required to have data transmission capability." *Fourth Notice,* 15
    FCC Rcd at 16932 App. B. In light of this proposal, Dataradio seeks
    reconsideration of the *Waiver Order* only to the extent that it
    relates to data-only radio systems. Petition at 2.

[^18]: *See Letter* to Thomas Sugrue, Esq., Chief, Wireless
    Telecommunications Bureau, from Robert J. Speidel, Esq., Manager,
    Regulatory Policy (Jan. 24, 2001) ("Com-Net Ericsson Comments"). No
    other party filed comments regarding Dataradio's Petition.

[^19]: Development of Operational, Technical and Spectrum Requirements
    for Meeting Federal, State and Local Public Safety Communication
    Requirements Through the Year 2010; Establishment of Rules and
    Requirements of Priority Access Service, *Fourth Report and Order
    and Fifth Notice of Proposed Rule Making*, WT Docket No. 96-86, 16
    FCC Rcd 2020 (2001) ("*Fourth Report"*).

[^20]: *Id*. at 2051 ¶ 86.

[^21]: *Id*. at 2051-52 ¶¶ 86-89. We note that Dataradio did not request
    reconsideration of the Commission's decision.

[^22]: Petition at 5.

[^23]: Com-Net Ericsson Comments at 1-2.

[^24]: Petition at 7

[^25]: *Id*. at 7.

[^26]: *Id*. at 6.

[^27]: *First Report*, 14 FCC Rcd at 156 ¶ 7, 164 ¶ 16.

[^28]: *Fourth Report*, 16 FCC Rcd at 2050-51 ¶ 85.

[^29]: *Id*. at 2051 ¶ 86.

[^30]: Petition at 4-5.

[^31]: *See* 47 U.S.C. § 337(b).

[^32]: *First Report*, 14 FCC Rcd at 155 ¶ 3.

[^33]: *See generally id.* at 190-96 ¶¶ 77-89.

[^34]: Petition at 6.

[^35]: *Id*.

[^36]: 47 C.F.R. § 90.547.

[^37]: *Id*.

[^38]: *See* Petition at 8. Specifically, it argues that the NCC did not
    address data transmission on the narrowband channels at its January
    14, 2000, meeting but two weeks later, at its January 28, 2000,
    meeting, and that the NCC adopted the Project 25 data standard
    without prior notice on any public agenda or opportunity for public
    discussion or debate.

[^39]: *Id*. (citing *Alabama-Tombigee Rivers v. Dept. of Interior*, 26
    F.3d 1103 (1994)).

[^40]: Petition at 9-10. Specifically, it asserts that (a) Project 25 is
    an air interface that does not allow for communications between
    users without associated applications; (b) because the NCC did not
    address software applications, software obtained by Public Safety
    users from different sources will be incompatible, and interoperable
    communications will lead to confusion and potential harm to public
    safety users; and (c) it is unlikely state-of-the-art applications
    will be written to operate on Project 25 standard because it is
    obsolete for data communications as it uses only a 9600 baud rate.
    *Id*. at 9.

[^41]: *See*, *e.g.*, Dataradio Comments (WT Docket No. 96-86) at 6-7.

[^42]: *Fourth Report*, 16 FCC Rcd at 2052 ¶ 89.

[^43]: *See*, *e.g.*, MCI Telecommunications Corp. v. Pacific Northwest
    Bell Telephone Co., *Memorandum Opinion and Order*, 5 FCC Rcd 216 ¶
    41, n.38 (1990), *recon. denied*, 5 FCC Rcd 3463 (1990), *appeal
    dismissed sub nom.* Mountain States Tel. and Tel. Co. v. FCC, 951
    F.2d 1259 (10^th^ Cir. 1991) (per curiam).