**DA 05-1767**

**Released: June 27, 2005**

**WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON REQUEST**

**FOR WAIVER BY THE COUNTY OF WESTCHESTER, NEW YORK TO ADD TWO UHF PART
22 PAGING FREQUENCIES TO ITS COUNTY-WIDE PUBLIC SAFETY RADIO SYSTEM**

**Comment Date: July 18, 2005 Reply Date: July 28, 2005**

By this *Public Notice*, the Wireless Telecommunications Bureau (Bureau)
seeks comment on a waiver request by the County of Westchester, New York
(Westchester) to modify its license for Station WQBR539, Yonkers, New
York, by adding a frequency pair at Port Chester, New York, consisting
of a Part 22 paging control channel and a trunked mobile channel in the
470-512 MHz band. Westchester contends that use of the subject channel
is necessary due to the lack of available public safety channels.
Specifically, Westchester filed the waiver request and application, FCC
File No. 0002107869, on March 31, 2005 to use frequencies designated for
paging operations to support the communications requirements of its
public safety agencies. The two frequencies are 476.2375 and 479.2375
MHz. Westchester proposes to operate the channels with a bandwidth of
12.5 kHz.

By way of background, Westchester is part of the New York City
metropolitan area, located north of the Bronx, and has a population of
one million people. On November 29, 2004, the Bureau's Public Safety and
Critical Infrastructure Division (Division) released an *Order*[^1]
waiving Sections 22.7, 22.501, 22.621, 22.651, 90.303, and 90.311 of the
Commission's Rules, 47 C.F.R. §§ 22.7, 22.501, 22.621, 22.651, 90.303,
90.311, pursuant to Section 337(c) of the Communications Act, as amended
(the Act), 47 U.S.C. § 337(c), to grant Westchester the authority to
utilize ten paging frequencies for public safety communications in
southern Westchester County. In its initial waiver request, Westchester
explained that it needed a total of six frequency pairs to meet its
public safety requirements for its southern county communications
system. However, it was able to identify only five available frequency
pairs at the time. Westchester is now applying for a sixth frequency
pair to complete its southern county system.

Westchester requests waivers of Sections 22.7, 22.501, 22.621, 22.651,
90.303, and 90.311, and any other Commission rules that are necessary to
grant its application, pursuant to Section 337(c) of the Act. Section
22.7 of the Commission's Rules sets forth the eligibility requirements
for entities in the Public Mobile Services. Section 22.501 defines the
scope of the licensing and operation of the public paging and
radiotelephone service. Sections 22.621 and 22.651 of the Commission's
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 are
available for land mobile and paging assignment in the New York
urbanized area. Section 90.311 provides land mobile users the exact
frequency ranges available for assignment, which exclude the frequencies
sought by Westchester. Westchester states that it seeks a waiver of our
rules to use spectrum designated for Part 22 paging operations because
no Part 90 land mobile radio spectrum is available.

Westchester 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 application at issue; and (5) the grant of the application
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.

Westchester asserts that the five requirements of Section 337(c) of the
Act have been met: (1) In its *Order*, the Division concluded that "no
other public safety spectrum is immediately available to satisfy the
requested public safety service use." Westchester states that the
situation has not changed. (2) The Division found that Westchester's
earlier application met the spacing requirements for co-channel and
adjacent channel television stations. Because Westchester is again
proposing to use TV Channel 15 frequencies, and the situation has not
changed since the release of the *Order*, the instant application also
meets the TV spacing requirements. The application and waiver request
are supported by an analysis which demonstrates interference protection
to co-channel licensee County of Somerset, New Jersey. In addition,
Westchester has obtained a letter of concurrence from co-channel
licensee Syosset, New York Fire District. Finally, Westchester states
that it will obtain a letter from the Association of Public Safety
Communications Officials International, Inc. (APCO) certifying that
Westchester's proposed use will not interfere with other incumbent
licensees and pending applicants. (3) As was the case in its earlier
application, Westchester is proposing to use a frequency pair located in
TV Channel 15. Not only will this use be consistent with other public
safety use in the New York metropolitan area, but the use of frequency
pair 476/479.2375 MHz will be consistent with the frequencies already
granted to Westchester. (4) The unassigned frequencies at issue were
allocated for Part 22 paging and radiotelephone service for more than
two years ago. (5) In the *Order*, the Division noted that "\[G\]ranting
the applications and waiver request would be in the public interest as
it will cure deficiencies in the existing public safety radio systems
and provide interoperability among various fire departments, police
departments, emergency medical services corps, and hospitals in
Westchester County. The proposed system would be free of interference
and crowding from other users in the New York City area, and would be
adequate for response to multiple incidents." Since grant of the instant
application will provide Westchester with the sixth frequency pair that
is needed, the public interest would be served by grant of the waiver
request.

Interested parties may file comments on the Waiver Request on or before
July 18, 2005. Parties interested in submitting reply comments must do
so on or before July 28, 2005. 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. 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 application 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 -

[^1]: County of Westchester, *Order*, 19 FCC Rcd 23189 (WTB PSCID 2004).