**DA 04-3601**

**November 17, 2004**

**WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON REQUEST**

**FOR WAIVER BY THE ATTORNEY GENERAL'S OFFICE OF THE STATE OF NEW JERSEY
TO OPERATE A WIDE AREA PUBLIC SAFETY RADIO SYSTEM UTILIZING TWENTY UHF
PAGING CONTROL AND TRUNKED MOBILE FREQUENCIES**

**Comment Date: December 2, 2004 Reply Date: December 13, 2004**

By this *Public Notice*, the Wireless Telecommunications Bureau seeks
comment on a waiver request by the Attorney General's Office of the
State of New Jersey (New Jersey) to operate a wide area public safety
radio communications system on twenty unassigned Part 22 paging control
and trunked mobile channels in the 470-512 MHz band. New Jersey contends
that use of the subject channels is necessary due to the lack of
available public safety channels. Specifically, New Jersey filed the
waiver requests and applications, FCC File No. 0001855193 on August 27,
2004 and an amendment on October 26, 2004, and FCC File No. 0001855197
on August 27, 2004 and amendments on October 19, 2004 and October 26,
2004, to use frequencies designated for paging operations to support the
communications requirements of its public safety agencies. In FCC File
No. 0001855193, New Jersey proposes to operate on frequency pairs
470/473.0875 and 470/473.1625 MHz in the northern counties and cities
near New York City. In FCC File No. 0001855197, New Jersey proposes to
operate on frequency pairs 500.1625/503.1125, 500/503.2375,
500/503.2625, 506/509.0875, 506/509.1125, 506/509.1625. 506/509.2125,
506/509.2625 MHz in the counties and cities surrounding Philadelphia and
the state capital in Trenton. New Jersey proposes to operate all of the
channels with a bandwidth of 25 kHz.

By way of background, New Jersey has commenced several initiatives to
strengthen statewide response and emergency preparedness in response to
the September 11, 2001 attacks. New Jersey states that its expansive
corporate and investment banking presence, its enormous rail, shipping,
airport, and highway infrastructure, and the proximity to New York City
and Philadelphia present severe challenges in responding to emergency
circumstances. New Jersey is working with the federal Department of
Homeland Security, other federal agencies, and public safety agencies to
prepare and implement a plan to improve detection and response. A key
ingredient in the plan is an interoperable system of voice and data
radio communications across jurisdictions and agencies. New Jersey
states that it seeks access to the Part 22 frequencies because the UHF
band has no other resources in the New York and Philadelphia
metropolitan areas.

New Jersey requests waivers of Sections 22.7, 22.621, 22.651, and 90.303
of the Commission's Rules, 47 C.F.R. §§ 22.7, 22.621, 22.651, and
90.303, and any other Commission rules that are necessary to grant its
applications, pursuant to Section 337(c) of the Communications Act of
1934, as amended (the Act), 47 U.S.C. § 337(c), and Section 1.925 of the
Commission's Rules, 47 C.F.R. § 1.925. Section 22.7 of the Commission's
Rules sets forth the eligibility requirements for entities in the Public
Mobile Services. Sections 22.621 and 22.651 of our rules set forth
frequencies, some of which are in the 470-512 MHz band, that are
available for point-to-multipoint and trunked mobile systems,
respectively. Section 90.303 of our rules states that certain TV
channels are allocated to land mobile use in thirteen urbanized areas of
the United States. Frequencies in the TV channel 14 and 15 bands
(470-482 MHz) are available for land mobile and paging assignment in the
New York urbanized area, while frequencies in the TV channel 19 band
(500-506 MHz) are similarly available in the Philadelphia urbanized
area.

New Jersey states that a grant of its request would be consistent with
Section 337(c) of the Act. Section 337(c) of the Act states that the
Commission shall grant an application by an entity seeking to provide
public safety services to the extent necessary to permit the use of
unassigned frequencies, if the Commission makes five specific findings:
(1) no other spectrum allocated for public safety use is immediately
available; (2) there will be no harmful interference to other spectrum
users entitled to protection; (3) public safety use of the frequencies
is consistent with other public safety spectrum allocations in the
geographic area in question; (4) the unassigned frequencies were
allocated for their present use not less than two years prior to the
grant of the applications at issue; and (5) the grant of the
applications is consistent with the public interest. "Public safety
services" are defined by 47 U.S.C. § 337(f) as services the sole or
principal purpose of which is to protect the safety of life, health, or
property, that are provided by the governmental entities or by
non-governmental entities authorized by the governmental entity whose
primary mission is the provision of such services, and that are not made
commercially available to the public by the provider.

New Jersey asserts that the five requirements of Section 337(c) of the
Act have been met: (1) a search for available spectrum, discussed above,
indicates that the paging channels sought are the only viable option and
no other alternatives exist. (2) The applications and waiver request are
supported by technical analyses which report that New Jersey's
operations will provide protection from harmful interference to
co-channel and adjacent channel incumbent licensees, pending applicants,
and TV stations. (3) The 470-512 MHz band is used for land mobile
operations the New York City and Philadelphia metropolitan areas. The
request is consistent with uses of the channel in the same general
geographic areas. The proposal will provide for interoperability with
municipalities, counties and State of New Jersey agencies. (4) The
unassigned frequencies at issue were allocated for Part 22 paging and
radiotelephone service on January 1, 1995, more than two years ago. (5)
Granting the applications and waiver request would be in the public
interest as it will modernize the interoperability capability of law
enforcement and public safety agencies throughout the state. A grant
will help New Jersey bring tangible enhancements to the public's health
and safety. The proposed system will make a substantial improvement in
security and overall preparedness to prevent, respond to, and mitigate
terrorist incidents.

Interested parties may file comments on the Waiver Request on or before
December 2, 2004. Parties interested in submitting reply comments must
do so on or before December 13, 2004. All comments should reference the
subject waiver request including the DA number of this *Public Notice*,
and should be filed with the Office of the Secretary, Federal
Communications Commission, 445 12th Street, S.W., TW-A325, Washington,
D.C. 20054. A copy of each filing should be sent to (1) Best Copy and
Printing, Inc., 445 12th Street, S.W., Room CY-B402, Washington, D.C.
20554; (2) Maria Ringold, Federal Communications Commission, Consumer
and Governmental Affairs Bureau, Reference Information Center, 445 12th
Street, S.W., Room CY-B529, Washington, D.C. 20554; and (3) Tom Eng,
Federal Communications Commission, Wireless Telecommunications Bureau,
Public Safety and Critical Infrastructure Division, 445 12th Street,
S.W., Room 3-A360, Washington, D.C. 20554.

The address for FCC locations should be used only for documents filed by
United States Postal Service first-class mail, Express Mail, and
Priority Mail. Hand-delivered or messenger-delivered documents for the
Commission\'s Secretary are accepted only by the Commission's
contractor, Natek, Inc., at 236 Massachusetts Avenue, N.E., Suite 110,
Washington, D.C. 20002. The filing hours at this location are 8:00 a.m.
to 7:00 p.m. All hand deliveries must be held together with rubber bands
or fasteners. Any envelopes must be disposed of before entering 236
Massachusetts Avenue, N.E. Other messenger-delivered documents,
including documents sent by overnight mail (other than United States
Postal Service Express Mail and Priority Mail) should be addressed for
delivery to 9300 East Hampton Drive, Capitol Heights, MD 20743. All
filings must be addressed to the Commission's Secretary, Office of the
Secretary, Federal Communications Commission. *See* FCC Announces a New
Filing Location for Paper Documents and a New Fax Number for General
Correspondence, *Public Notice*, 16 FCC Rcd 22165 (2001).

The applications and waiver request can be accessed electronically via
the Commission's Universal Licensing System,
<http://wireless.fcc.gov/uls>. The full text of the waiver request,
comments and reply comments will be available for inspection and
duplication during regular business hours in the FCC Reference
Information Center (RIC) of the Consumer and Governmental Affairs
Bureau, Federal Communications Commission, 445 12th Street, S.W., Room
CY-A257, Washington, D.C. 20554. Copies also may be purchased from the
Commission's duplicating contractor, Best Copy and Printing, Inc.,
Portals II, 445 12th Street, S.W., Room CY-B402, Washington, D.C. 20554.
Customers may contact BCPI through its web site,
[http://www.bcpiweb.com](http://www.bcpiweb.com/), by email at
<fcc@bcpiweb.com>, by phone at (202) 488-5300 or (800) 378-3160, or by
facsimile at (202) 488-5563. For further information regarding the
public reference file for this waiver request, contact Maria Ringold,
Chief, Wireless Branch, RIC, (202) 418-1355.

Unless otherwise provided, requests for waiver of the Commission's Rules
are subject to treatment by the Commission as restricted proceedings for
*ex parte* purposes under Section 1.1208 of the Commission's Rules, 47
C.F.R. § 1.1208. Because of the policy implications and potential impact
of this proceeding on persons not parties to the waiver request, we
believe it would be in the public interest to treat this case as a
permit-but-disclose proceeding under the *ex parte* rules. *See*
Sections 1.1200(a), 1.1206 of the Commission's Rules, 47 C.F.R. §§
1.1200(a), 1.1206. Therefore, subsequent to the release of this *Public
Notice*, *ex parte* presentations that are made with respect to the
issues involved in the subject waiver request will be allowed but must
be disclosed in accordance with the requirements of Section 1.1206(b) of
the Commission's Rules, 47 C.F.R. § 1.1206(b).

For further information, contact Mr. Tom Eng of the Public Safety and
Critical Infrastructure Division, Wireless Telecommunications Bureau at
(202) 418-0019, TTY (202) 418-7233, or via e-mail to
<Thomas.Eng@fcc.gov>.

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

\- FCC -