**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Application of  | * | File No. 0002407970          |
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| AMERICAN ELECTRIC POWER          | ) |                              |
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| SERVICE CORPORATION              | * |                              |
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| To Modify Private Land Mobile    | * |                              |
| Radio                            | * |                              |
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| Station WQBN218 in Blevins,      | * |                              |
| Arkansas and                     | * |                              |
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| Request for Waiver of            | * |                              |
| Intercategory Sharing Freeze and | * |                              |
| Request for Waiver of the 800    | ) |                              |
| MHz Band Wave 2 Freeze           | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: February 27, 2007 Released: March 1, 2007**

By the Deputy Chief, Mobility Division, Wireless Telecommunications
Bureau:

# INTRODUCTION

1.  In this *Memorandum Opinion and Order*, we address the
    above-captioned modification application and request for waiver[^1]
    of the intercategory sharing freeze[^2] filed by American Electric
    Power Service Corporation (American Electric) to use certain
    pre-rebanding Public Safety Category channels in the Blevins,
    Arkansas area. For the reasons set forth herein, we grant the
    request in part and deny it in part. Specifically, we grant American
    Electric's request for waiver of the intercategory sharing freeze
    with respect to frequencies 858.2625 MHz, 858.7375 MHz, and 859.7375
    MHz, and deny it with respect to frequency 860.7375 MHz.
    Accordingly, we shall process American Electric's modification
    application in accordance with this *Memorandum Opinion and Order*.

# BACKGROUND

2.  Generally, the Commission licenses Private Land Mobile Radio (PLMR)
    applicants on frequencies in the category or categories for which
    they satisfy the eligibility criteria. Section 90.621(e) of the
    Commission\'s Rules, however, permits "intercategory sharing"
    whereby applicants that are eligible for licensing in the 800 MHz
    Public Safety or Business/Industrial/Land Transportation (B/ILT)
    Categories can obtain licenses on channels outside of their
    respective categories if certain criteria are met, *inter alia*, no
    channels are available in the category for which the applicant is
    eligible.[^3] On April 5, 1995, the Wireless Telecommunications
    Bureau (Bureau) placed a freeze on the filing of new applications
    for intercategory sharing on all PLMR frequencies in the
    806-821/851-866 MHz bands.[^4] The Bureau determined that the
    intercategory sharing freeze was warranted to curb the increase in
    intercategory sharing applications for Public Safety Category
    channels by B/ILT licensees whose own channels were subject to
    increased demand from Specialized Mobile Radio (SMR) applicants.[^5]

3.  In July 2004, the Commission mandated the reconfiguration of the 800
    MHz band to eliminate interference to public safety communications
    in the band.[^6] In an effort to accomplish 800 MHz band
    reconfiguration effectively and with limited adverse affects on
    licensees, the Commission determined that band reconfiguration would
    occur region by region.[^7] In order to maintain a stable spectral
    status quo during the reconfiguration of each region, the Commission
    concluded that an application freeze during the process would be
    appropriate.[^8] Moreover, the Commission reminded potentially
    affected parties of the availability of the Commission\'s waiver
    process and Special Temporary Authorizations (STAs) when needed in
    order to avoid prejudice to any applicant during the band
    reconfiguration process.[^9]

4.  On December 14, 2005, American Electric filed an application to
    modify its license for Station WQBN218 to authorize the use of four
    pre-rebanding Public Safety Category frequencies.[^10] Although
    American Electric is not a Public Safety Category eligible, it
    provides wireless communications in the Blevins, Arkansas area for
    field crews in the electricity generation and transmission
    operations of American Electric Power Company, Inc.[^11] American
    Electric asserts that it discovered gaps in its coverage, which
    multiply as residential development in the area increases, primarily
    in valleys.[^12]

5.  In addition, American Electric asserts that there are no available
    B/ILT Category frequencies in the Blevins area because public safety
    agencies are licensed to use the bulk of B/ILT Category
    frequencies.[^13] Accordingly, American Electric seeks to modify its
    license to add four pre-rebanding Public Safety Category
    frequencies: 858.2625 MHz, 858.7375 MHz, 859.7375 MHz, and 860.7375
    MHz.[^14] Finally, American Electric asserts[^15] that grant of its
    request would be consistent with a waiver granted to Central Maine
    Power Company in 2003.[^16]

6.  On December 20, 2006, the Public Safety and Homeland Security Bureau
    (PSHSB)[^17] provided guidance to public safety licensees seeking to
    apply for channels during the reconfiguration of the 800 MHz
    band.[^18] The PSHSB clarified that once the negotiation period in a
    region has begun, permanent licensing on the pre-rebanding
    frequencies should cease and subsequent licensing should be in
    accordance with the new, post-rebanding band plan.[^19] Thus,
    license applications are not accepted during the freeze period, and
    once the freeze in a region ends, new applicants (including existing
    licensees seeking authorizations for new facilities) will be
    expected to file for available frequencies based on their
    eligibility under the new band plan.[^20]

# Discussion

7.  As an initial matter, we note that frequency 860.7375 MHz (Channel
    500), while formerly a Public Safety Category frequency, is now a
    SMR Category frequency.[^21] Section 90.621(e) does not authorize
    intercategory sharing of SMR Category frequencies such as Channel
    500.[^22] Consequently, this channel is available only to eligibles
    in the SMR Category. Accordingly, we deny American Electric's waiver
    request with respect to this SMR Category frequency.

8.  With regard to the remaining three frequencies, we may grant a
    waiver request where the underlying purpose of the rule(s) would not
    be served or would be frustrated by application to the instant case,
    and where a grant of the requested waiver would be in the public
    interest.[^23] In the alternative, we may grant a waiver where based
    upon 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.[^24]

9.  American Electric asserts that it satisfies both prongs of the
    waiver analysis because it believes that the underlying purpose of
    the intercategory sharing freeze would be frustrated by denying
    American Electric limited access to Public Safety Category
    frequencies when:

    \(a\) The bulk of B/ILT frequencies assigned for use in the Blevins
    area is presently utilized by public safety agencies;

    \(b\) These pre-rebanding Public Safety Category frequencies are the
    only frequencies available for its use;[^25] and

    \(c\) The Association of Public-Safety Communications Officials
    International, Inc. (APCO), a FCC-certified frequency coordinator
    for Public Safety Category frequencies, approved American Electric's
    request to utilize these frequencies.[^26]

    Moreover, American Electric asserts that it satisfies the second
    prong of the rule because of the "highly" unusual number of public
    safety eligibles occupying a large number of non-Public Safety
    frequencies, coupled with the critical need to restore electrical
    service in times of emergency for essential police, fire, and other
    public safety functions.[^27]

10. Finally, we note that American Electric cites *Central Maine Power*
    as a similar waiver request that was granted in 2003. In *Central
    Maine Power*, the former Public Safety and Private Wireless Division
    (former Division)[^28] concluded that granting an intercategory
    sharing waiver for Central Maine Power to use three Public Safety
    Category channels at a proposed site would have no adverse impact on
    public safety systems and would not undermine the underlying purpose
    of the intercategory sharing freeze.[^29] Central Maine Power, a
    major utility company, provided wholesale and retail electricity to
    540,000 business and residential customers throughout the southern
    half of Maine and used radio communications to support the safe and
    efficient delivery and restoration of electrical service to the
    public.[^30] Furthermore, the former Division found that grant of a
    waiver to Central Maine Power was consistent with precedent.[^31]

11. In the instant matter, we disagree with American Electric's
    assertion that the underlying purpose of the intercategory sharing
    freeze is to allocate frequencies, in relative proportion, as
    between public safety and non-public safety eligibles.[^32] Rather,
    the Bureau found that B/ILT licensees were applying to utilize
    Public Safety Category channels in their systems through the
    intercategory sharing rule, so it adopted the intercategory sharing
    freeze in order to maintain the regulatory landscape and curtail the
    "dramatic increase" in B/ILT licensees filing for intercategory
    sharing to use Public Safety Category channels.[^33]

12. Nonetheless, we conclude, consistent with the former Division's
    decision on a similar situation in *Central Maine Power*, that the
    facts discussed above warrant grant of the requested relief. First,
    the use of these frequencies by American Electric would not
    adversely affect public safety operations or future public safety
    spectrum needs. In this connection, APCO has specifically approved
    the operations proposed in American Electric's application. Second,
    American Electric has shown that it has no reasonable alternative to
    the use of the three public safety frequencies because there are no
    available B/ILT Category channels in the Blevins, Arkansas area.
    Consequently, we are persuaded that American Electric requires the
    use of these three channels to support the safe, efficient delivery
    and restoration of electrical service to the public.

# Conclusion

13. The record reflects that American Electric has satisfied the waiver
    standard with respect to the three Public Safety Category
    frequencies, 858.2625 MHz, 858.7375 MHz, and 859.7375 MHz.
    Therefore, we conclude that granting the requested waiver would be
    in the public interest with regard to these three frequencies.
    However, we find that American Electric did not satisfy the waiver
    standard with respect to frequency 860.7375 MHz. Instead of seeking
    a waiver of the intercategory sharing freeze, American Electric must
    seek a waiver of the eligibility requirements in Section 90.617(d)
    of the Commission's Rules in order to operate on the SMR
    frequency.[^34]

# Ordering clauses

14. For the reasons discussed herein, IT IS ORDERED that, 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, American Electric Power Service Corporation's
    request for waiver of the intercategory sharing freeze on December
    14, 2005, IS GRANTED with respect to frequencies 858.2625 MHz,
    858.7375 MHz, and 859.7375 MHz, and DENIED with respect to frequency
    860.7375 MHz; and application FCC File No. 0002407970 SHALL BE
    PROCESSED in accordance with this *Memorandum Opinion and Order*.

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

    Scot Stone

    Deputy Chief, Mobility Division

    Wireless Telecommunications Bureau

[^1]: FCC File No. 0002407970 (filed Dec. 14, 2005), Waiver Attachment
    (Waiver Request).

[^2]: *See* Inter-Category Sharing of Private Mobile Radio Frequencies
    in the 806-821/851-866 MHz Bands, *Order*, 10 FCC Rcd 7,350
    (*Intercategory Sharing Freeze Order*), *aff\'d on recon.*, 11 FCC
    Rcd 1,452 (WTB 1995). Initially, American Electric also sought a
    waiver of the freeze on the filing of 800 MHz Band Reconfiguration
    Wave 2 applications. *See* Wireless Telecommunications Bureau
    Announces that 800 MHz Band Reconfiguration will Commence October 3,
    2005, in the NPSPAC Regions Assigned to Wave 2, *Public Notice*, WT
    Docket No. 02-55, 20 FCC Rcd 14,455 (WTB 2005) (*Wave 2 Freeze PN*).
    However, American Electric no longer seeks a waiver of the Wave 2
    Freeze because the freeze on non-National Public Safety Planning
    Advisory Committee (NPSPAC) channels ended on May 12, 2006, during
    our consideration of its request. *See* FCC File No. 0002813674
    (filed Nov. 9, 2006) (American Electric request for renewal of
    Special Temporary Authority Call Sign WQDW594).

[^3]: *See* 47 C.F.R. § 90.621(e)(1).

[^4]: *See* *Intercategory Sharing Freeze Order*, 10 FCC Rcd at 7,350.

[^5]: *Id*. at 7,352-53 ¶¶ 5-7.

[^6]: *See* Improving Public Safety Communications in the 800 MHz Band,
    *Report and Order*, WT Docket No. 02-55, 19 FCC Rcd 14,969 (2004)
    (*Band Reconfiguration R&O*); *see also Supplemental Order and Order
    on Reconsideration*, WT Docket No. 02-55, 19 FCC Rcd 25,120 (2004)
    (*Band Reconfiguration* *Supplemental Order*). The 800 MHz band
    reconfiguration process consists of the issuance of a public notice
    thirty days before the scheduled start of reconfiguration in each
    NPSPAC region. *See* 47 C.F.R. § 90.677(b); *Band Reconfiguration
    R&O*, 19 FCC Rcd at 15,076 ¶ 201; *see also* Wireless
    Telecommunications Bureau Approves the Basic Reconfiguration
    Schedule Put Forth in the Transition Administrator\'s 800 MHz
    Regional Prioritization Plan, *Public Notice*, WT Docket No. 02-55,
    20 FCC Rcd 5,159 (WTB 2005).

[^7]: *See* *Band Reconfiguration R&O*, 19 FCC Rcd at 15,078 ¶ 204.

[^8]: *See* *Band Reconfiguration Supplemental Order*, 19 FCC Rcd at
    25,158-59 ¶ 87; *Wave 2 Freeze PN*, 20 FCC Rcd 14,455. The public
    notice specifies a three-month voluntary negotiation period during
    which time identified licensees in the regions being reconfigured
    are encouraged to reach agreement with Nextel Communications, Inc.
    on the details of relocating. *See* 47 C.F.R. § 90.677(b). The
    voluntary negotiation period is followed by a three-month mandatory
    negotiation period, if necessary. *See* 47 C.F.R. § 90.677(c).

[^9]: *See* *Band Reconfiguration R&O*, 19 FCC Rcd at 15,078 ¶ 204.

[^10]: Previously, American Electric applied for an STA to utilize these
    frequencies in the Blevins area. *See* FCC File No. 0002369808
    (filed Nov. 3, 2005). The STA subsequently was renewed, and
    currently is set to expire on May 14, 2007. *See* license for
    Station WQDW594.

[^11]: *See* Waiver Request at 2. American Electric is a subsidiary of
    American Electric Power Company, Inc.

[^12]: *Id*. American Electric further indicates that commercial mobile
    radio services are not a viable option to address its coverage gaps
    because "\[i\]t is in these same areas where cellular coverage is
    spotty in some places and essentially non-existent in others." *Id*.

[^13]: *Id*. at 2-3. The Enterprise Wireless Association (EWA), the
    frequency coordinator for American Electric's application, confirms
    that no B/ILT Category frequencies are available. *See* Letter dated
    Feb. 1, 2007 from Julia R. Biggs, Spectrum Manager, EWA to Ramona
    \[M\]elson.

[^14]: *See* Waiver Request at 1; *see also* 47 C.F.R. § 90.613 (2004)
    (channel designation of frequencies available for assignment to
    eligible applicants); 47 C.F.R. § 90.617 Table 1 (2004) (channels
    available for eligible applicants in the Public Safety Category).

[^15]: *See* Waiver Request at 4.

[^16]: Central Maine Power Company, *Order*, 18 FCC Rcd 2,581 (WTB PSPWD
    2003) (*Central Maine Power*).

[^17]: We note that the Commission transferred authority for the 800 MHz
    band reconfiguration process from the Wireless Telecommunications
    Bureau to the Public Safety and Homeland Security Bureau on
    September 25, 2006. *See* Establishment of the Public Safety and
    Homeland Security Bureau, *Order*, 21 FCC Rcd 10,867 (2006).

[^18]: Public Safety and Homeland Security Bureau Provides Guidance for
    Public Safety Licensees with Regard to License Application and
    Special Temporary Authorization Procedures and Payment of Frequency
    Relocation Costs for Public Safety Facilities Added during 800 MHz
    Band Reconfiguration, *Public Notice*, WT Docket 02-55, 21 FCC Rcd
    14,658 (PSHSB 2006) (*800 MHz STA and Application Guidance PN*);
    *see also* *Band Reconfiguration Supplemental Order*, 19 FCC Rcd at
    25,159-60 ¶ 89.

[^19]: *See 800 MHz STA and Application Guidance PN*, 21 FCC Rcd at
    14,659 (citing *800 MHz Supplemental Order*, 19 FCC Rcd at 25159-60
    n.226).

[^20]: *See id*.

[^21]: *Compare* 47 C.F.R. § 90.617(a) Table 1 (2004) *with* 47 C.F.R. §
    90.617(d) Table 4B (2005).

[^22]: *See* 47 C.F.R. § 90.621(e)(1).

[^23]: *See* 47 C.F.R. § 1.925(b)(3)(i).

[^24]: *See* 47 C.F.R. § 1.925(b)(3)(ii).

[^25]: *See* Waiver Request at 1.

[^26]: *See* Letter dated Oct. 18, 2005 from Wendy Caruthers, AFC Team
    Leader, APCO International, Inc. to Julia Biggs, Enterprise Wireless
    Alliance, attached to FCC File No. 0002369808.

[^27]: *See* Waiver Request at 2-3.

[^28]: The Commission reorganized the Bureau effective November 13,
    2003, and the Public Safety and Critical Infrastructure Division
    assumed the relevant duties of the Public Safety and Private
    Wireless Division. *See* Reorganization of the Wireless
    Telecommunications Bureau, *Order*, 18 FCC Rcd 25,414, 25,414 ¶ 2
    (2003). Pursuant to a reorganization effective September 25, 2006,
    certain duties of the Public Safety and Critical Infrastructure
    Division were assumed by the Mobility Division. *See* Establishment
    of the Public Safety and Homeland Security Bureau, *Order*, 21 FCC
    Rcd 10,867 (2006).

[^29]: *Central Maine Power*, 18 FCC Rcd at 2,584 ¶ 8.

[^30]: *Id*.

[^31]: *Id*. at 2,583 n.23 (citing Fisher Ranch, *Order*, 17 FCC Rcd
    602, 603 (WTB PSPWD 2002)).

[^32]: *See* Waiver Request at 1.

[^33]: *See* *Intercategory Sharing Freeze Order*, 10 FCC Rcd at 7352 ¶¶
    5-7; *see also* Amendment of Part 90 of the Commission's Rules to
    Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band, *Memorandum Opinion and Order on Reconsideration*,
    PR Docket No. 93-144, 12 FCC Rcd 9,972, 10,004-5 ¶ 103 (1997) ("This
    freeze was intended to stem the increase in intercategory
    applications for Public Safety channels by \[I/LT and Business\]
    license\[e\]s whose own channels were subject to increased demand
    from SMR applicants.").

[^34]: The partial grant of the waiver request is without prejudice to
    American Electric's ability to seek whatever relief may be
    appropriate for authorized operations on the subject SMR Category
    frequency.