**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of Applications of | *  | FCC File Nos. 0002183000,    |
|                                  | *) | 0002183001                   |
| COUNTY OF TUSCARAWAS, OHIO       | ** |                              |
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| For Modification of Licenses for | *  |                              |
| Private Land Mobile Radio        | *) |                              |
| Service Station WPDU278 and      | ** |                              |
| Request for Waiver of the        |    |                              |
| Inter-Category Sharing Freeze in | *  |                              |
| the 806-821/851-866 MHz Band     | *) |                              |
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**ORDER**

**Adopted:** January 30, 2007 **Released:** January 31, 2007

By the Deputy Chief, Policy Division, Public Safety and Homeland
Security Bureau:

**I. INTRODUCTION**

1.  In this *Order*, we address the above-captioned applications and
    waiver request filed by the County of Tuscarawas, Ohio (County) to
    modify its license for Public Safety Station WPDU278.[^1] The County
    requests a waiver of the 800 MHz inter-category sharing freeze to
    enable it to exchange ("swap") certain channels with Sprint Nextel
    Communications, Inc. (Sprint). It also seeks to expand its
    operations on General Category frequency 854.4625 MHz but has not
    requested a waiver of the General Category freeze.[^2] We dismiss
    the request for waiver of the inter-category sharing freeze as moot
    because the requested swap may now be carried out through the 800
    MHz rebanding process. We also grant a General Category freeze
    waiver on our own motion to allow the County to expand operations on
    854.4625 MHz.

    **II. BACKGROUND**

2.  The County operates an 800 MHz radio system (call sign WPDU278) to
    support public safety services in and around New Philadelphia, Ohio.
    Station WPDU278 is authorized to operate on three General Category
    frequencies, 851.5125, 852.4625, and 853.4375 MHz, that must be
    vacated under the Commission's 800 MHz rebanding order.[^3] The
    order further requires Sprint to provide the County with comparable
    facilities on other 800 MHz channels in the interleaved portion of
    the 800 MHz band. Sprint is the licensee of three
    Business/Industrial Land Transportation (B/ILT) frequencies,
    854.8875, 856.7875, and 857.7875 MHz, in the New Philadelphia area.
    In April 2005, before the rebanding process had begun, the County
    and Sprint filed a request for waiver of the inter-category sharing
    freeze to enable Tuscawaras to operate on Sprint's B/ILT frequencies
    as part of a frequency swap.[^4]

3.  The County is also licensed under WPDU278 for General Category
    frequency 854.4625 MHz at three locations. Unlike the other three
    General Category frequencies noted above, this frequency is not
    subject to rebanding.[^5] The County has applied to use this
    frequency at five new locations in Tuscarawas County to improve its
    radio communications capability. Use of the frequency at these new
    locations would be short-spaced to Sprint operations on this
    frequency.[^6] Sprint, however, has consented to the County's
    expanded use of this frequency.[^7] Granting the County's
    application for General Category frequency 854.4625 MHz necessitates
    a waiver of the freeze on new site-based General Category
    applications that was imposed when the Commission converted the
    General Category to geographic area licensing.

    **III. DISCUSSION**

4.  *Inter-Category Frequency Swap.* As noted above, the County seeks
    authorization to operate on B/ILT frequencies as part of a frequency
    swap with Sprint. Historically, the Commission has permitted this
    type of arrangement under its "inter-category sharing" rule, whereby
    applicants that are eligible for licensing in the 800 MHz Public
    Safety or B/I/LT categories can be licensed on channels outside
    their respective categories if no channels are available in the
    category for which the applicant is eligible.[^8] In 1995, however,
    the Wireless Telecommunications Bureau imposed a freeze on
    inter-category sharing in connection with the establishment of
    geographic licensing of the B/ILT and SMR portions of the 800 MHz
    band.[^9]

5.  The County and Sprint seek a waiver of the inter-category sharing
    freeze to enable the County to operate on Sprint's B/ILT
    frequencies. [^10] However, we need not reach the parties' arguments
    on this point, because the freeze does not apply to applications
    that are necessary to implement 800 MHz band reconfiguration once
    the reconfiguration process begins in the relevant region.[^11] At
    the time that the County filed its waiver request, band
    reconfiguration had not yet begun in Ohio, but the reconfiguration
    process in Ohio was initiated as part of the "Wave 4"
    reconfiguration in July 2006.[^12] Since the applications in
    question are for operation in a region where the reconfiguration
    process is ongoing, a waiver of the inter-category sharing freeze is
    not needed. Hence, the County's request for a waiver of the
    inter-category sharing freeze is moot.

6.  *Expansion on General Category Frequency 854.4625 MHz*. The County
    has applied to use frequency 854.4625 MHz at five new locations in
    Tuscarawas County to improve its radio communications capability.
    The County requires, but has not requested, a waiver of the freeze
    on new site-based General Category applications that was imposed in
    1995 when the Commission converted the General Category to
    geographic area licensing.[^13] However, because a waiver of the
    General Category freeze is a prerequisite to grant of the County's
    application and because waiving the freeze is consistent with our
    waiver criteria, we are waiving the freeze on our own motion.[^14]

7.  We conclude that grant of a waiver of the General Category freeze is
    warranted in this case. The freeze on General Category channels was
    put in place to preserve the licensing landscape when the Commission
    adopted geographic licensing rules for the General Category. In the
    800 MHz rebanding proceeding, however, as part of the Commission's
    restructuring of the band, the Commission provided for the eventual
    resumption of site-based licensing in the 854-854.75 MHz
    post-rebanding General Category segment of the band.[^15] The
    Commission further required that Sprint, the holder of the
    geographic license covering 854.4625 MHz in the New Philadelphia
    area, vacate this band segment at the conclusion of the rebanding
    process.[^16] Although the General Category freeze remains in effect
    while the rebanding process is under way, Sprint has given its
    consent for the County to use the frequency immediately at the five
    new locations specified in the County's application. For these
    reasons, we believe a waiver of the General Category freeze will not
    frustrate the underlying purpose of the freeze and is
    warranted.[^17] Further, we find that grant of the waiver is
    consistent with our public interest goal to facilitate effective
    public safety communications.

    **IV. ORDERING CLAUSES**

8.  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 1.925 and 90.621 of the Commission's Rules, 47 C.F.R. §§
    1.925, 90.621, the request for waiver of the inter-category freeze
    filed by the County of Tuscarawas is DISMISSED as moot. It is
    FURTHER ORDERED that a waiver of the General Category freeze for
    station WPDU278 IS GRANTED, and applications FCC File Nos.
    0002183000-01 filed by the County of Tuscarawas SHALL BE REFERRED
    for processing consistent with this *Order*.

9.  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

    Michael J. Wilhelm

    Deputy Chief, Policy Division Public Safety and Homeland Security
    Bureau

[^1]: FCC File Nos. 0002183000-01.

[^2]: 800 MHz frequencies in the 851-866 MHz band are used for base
    station transmissions, and are paired with frequencies in the
    806-821 MHz band for mobile transmissions. For ease of reference, we
    designate frequency pairs in this *Order* by reference to the base
    station frequency.

[^3]: Under the rebanding plan, these three frequencies must be vacated
    Sprint because they fall in the new NPSPAC band (851-854 MHz), which
    is reserved for public safety. *See* Improving Public Safety
    Communications in the 800 MHz Band, WT Docket No. 02-55, *Report and
    Order*, 19 FCC Rcd 14969 (2004) (800 MHz Report and Order).

[^4]: *See* Letter dated April 1, 2005 from Kerry Metzger, Tuscarawas
    County Commissioner, and Charles Anderson, Assistant Regulatory
    Counsel, Nextel Communications, Inc., to Public Safety and Critical
    Infrastructure Division, Wireless Telecommunications Bureau
    (County/Nextel Letter). *See also* Letter dated August 4, 2005 from
    Kerry Metzger, Tuscarawas County Commissioner, and Allison Jones,
    Regulatory Counsel, Nextel Communications, to Public Safety and
    Critical Infrastructure Division, Wireless Telecommunications
    Bureau.

[^5]: General Category frequencies from 854 to 854.75 MHz are not
    subject to rebanding because they are not needed to accommodate
    relocating NPSPAC licensees. *See* 47 C.F.R. § 90.615.

[^6]: Nextel is the Economic Area (EA) license of block FF, which
    includes the frequency 854.4625 MHz in the area where the County
    wants to expand.

[^7]: *See* Letter dated March 29, 2005 from Karen Garth to Public
    Safety and Critical Infrastructure Division, Wireless
    Telecommunications Bureau.

[^8]: *See* 47 C.F.R. § 90.621(e)(1).

[^9]: *See* Inter-Category Sharing of Private Mobile Radio Frequencies
    in the 806-821/851-866 MHz Bands, *Order*, 10 FCC Rcd 7350, *aff'd
    on recon*., *Memorandum Opinion and Order*, 11 FCC Rcd 1452 (WTB
    1995).

[^10]: County/Nextel Letter at 2.

[^11]: *See* *800 MHz* *Report and Order* at ¶ 198. *See* *also* 47
    C.F.R. § 90.677. Applications filed after the start of the
    reconfiguration process in a particular region are considered
    "reconfiguration" applications and are not subject to the
    inter-category freeze.

[^12]: Wireless Telecommunications Bureau Announces that 800 MHz Band
    Reconfiguration for Non-NPSPAC Channels Will Commence July 3, 2006,
    in the NPSPAC Regions Assigned to Wave 4, *Public Notice*, DA
    06-1183 (WTB rel. June 2, 2006).

[^13]: *See* Licensing of General Category Frequencies in the
    806-809.750/851-854.750 MHz Bands, *Order*, 10 FCC Rcd 13190 (1995).

[^14]: A waiver may be granted where (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 not be in
    the public interest; or (ii) in view of the 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. 47
    C.F.R. § 1.925(b)(3)(i), (ii).

[^15]: Improving Public Safety Communications in the 800 MHz Band, WT
    Docket No. 02-55, *Supplemental Order and Order on Reconsideration*,
    19 FCC Rcd 25146 ¶ 60 (2004).

[^16]: *800 MHz Report and Order***,** 19 FCC Rcd 15046-47 at ¶ 146.

[^17]: *See* New Jersey Transit Authority, *Order*, DA 99-384 (WTB rel.
    Mar 22, 1999).