**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| Municipality of San Juan         | ) |                              |
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| Request for Waiver of Section    | * |                              |
| 90.203 of the Commission's Rules |   |                              |
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**ORDER**

**Adopted: September 19, 2001 Released: September 28, 2001**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

1.  *Introduction*. On March 28, 2001, the Municipality of San Juan,
    Puerto Rico (San Juan) filed a request for waiver of Section 90.203
    of the Commission Rules, 47 C.F.R. § 90.203.[^1] San Juan requests
    waiver of Section 90.203 so it can continue operating Station
    WPPX830, San Juan, Puerto Rico, with transmitters that are not
    certified by the Commission, until it can acquire new transmitters
    that comply with the Commission's Rules.[^2] For the reasons set
    forth herein, we grant the request, and waive Section 90.203 until
    June 1, 2002.

2.  *Background.* On March 6, 2000, San Juan was authorized to operate
    Station WPPX830 pursuant to Section 90.20 of the Commission's
    Rules.[^3] Station WPPX830 is used by the San Juan Police Department
    for local and Commonwealth law enforcement and assisting and
    coordinating with health care agencies during emergencies.[^4]

3.  Section 90.203 of the Commission's Rules provides, *inter alia*,
    that each transmitter utilized for operation under Part 90 of the
    Commission's Rules must be certified for use by the FCC.[^5] In
    operating Station WPPX830, the San Juan Police Department uses
    Motorola PRO 5150 transmitters that it purchased from Fifties
    Communications, Inc. (Fifties).[^6] In the purchase agreement,
    Fifties agreed to provide San Juan with 145 transmitters that were
    approved and certified by the Commission.[^7] On October 27, 2000,
    the Enforcement Bureau of the Commission conducted an investigation
    of the offices of the San Juan Police Commissioner.[^8] In
    connection with the investigation, the Enforcement Bureau found that
    the Motorola PRO 5150 transmitters used by the San Juan Police
    Department were not certified for use by the FCC.[^9] On November 1,
    2000, San Juan received notice of the violation.[^10]

4.  On March 28, 2001, San Juan filed the subject request for waiver. It
    seeks a waiver of Section 90.203(a) for a period of twelve months,
    to allow it to continue using the Motorola PRO 5150 transmitters
    until it replaces the uncertified units with radios that meet FCC
    standards.[^11]

5.  *Discussion*. To obtain a waiver of the Commission's Rules, a
    petitioner must demonstrate either (a) that the underlying purpose
    of the rule(s) would not be served or would be frustrated by
    application to the present case, and grant of the requested waiver
    would be in the public interest; or (b) that, in view of the of
    unique or unusual factual circumstances, application of the rule(s)
    would be inequitable, unduly burdensome or contrary to the public
    interest, or the applicant has no reasonable alternative.[^12] We
    conclude that San Juan has demonstrated that due to unique
    circumstances, a strict application of Section 90.203 of the
    Commission's Rules in this instance would be contrary to the public
    interest.

6.  In support of its request for waiver of Section 90.203 of the
    Commission's Rules, San Juan states that its police officers rely on
    the Motorola PRO 5150 transmitters in enforcing local and
    Commonwealth laws and in assisting and coordinating with health care
    agencies during emergencies.[^13] San Juan contends that use of the
    transmitters is essential to its police force and therefore argues
    that application of Section 90.203 of the Commission's Rules in this
    matter could have a substantial adverse effect on public safety
    communications.[^14] San Juan states that while it has requested
    that Fifties replace the subject transmitters with FCC-certified
    transmitters and Fifties has agreed to do so, Fifties has not yet
    provided any FCC-certified replacement equipment.[^15] San Juan
    further states that, due to current budget constraints, it has been
    unable to replace the transmitters on its own.[^16] Therefore, it
    has requested a temporary, twelve-month waiver of Section 90.203,
    and represents that it will purchase FCC-certified transmitters when
    funds become available in the next budget cycle.[^17]

7.  We find that San Juan has demonstrated that a limited, temporary
    waiver of Section 90.203 of the Commission's Rules is warranted.
    Given that the San Juan Police Department relies on the Motorola PRO
    5150 transmitters to perform its public safety responsibilities, we
    do not believe that strict application of Section 90.203 of the
    Commission's Rules here would serve the public interest.
    Furthermore, based on its representations in this proceeding, San
    Juan intends to replace the Motorola PRO 5150 transmitters with
    transmitters that have been approved by the Commission as soon as
    possible but, due to its current budget constraints, San Juan cannot
    replace them until the funds are available in the 2002 budget.
    However, we believe that San Juan should be able to replace the
    Motorola PRO 5150 transmitters with FCC-certified transmitters in
    less than one year. The necessary funds should be available to San
    Juan by early 2002. Therefore, we conclude that waiver of Section
    90.203 of the Commission's Rules, effective until June 1, 2002, is
    warranted under the circumstances presented, and will provide San
    Juan sufficient opportunity to acquire FCC-certified transmitters.
    Accordingly, we grant San Juan's request for waiver of Section
    90.203 of the Commission's Rules, effective until June 1, 2002.

8.  Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i), and Section
    1.925 of the Commission's Rules, 47 C.F.R. § 1.925, the request for
    waiver of Section 90.203 of the Commission's Rules filed by the
    Municipality of San Juan on March 28, 2001 IS GRANTED, effective
    until June 1, 2002.

9.  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

D'wana Terry

Chief, Public Safety and Private Wireless Division

> Wireless Telecommunications Bureau

[^1]: Municipality of San Juan, Petition for Waiver, filed March 28,
    2001 (Waiver Request).

[^2]: *See id*. at 5.

[^3]: *See* 47 C.F.R. § 90.20.

[^4]: Waiver Request at 2.

[^5]: *See* 47 C.F.R. § 90.203.

[^6]: Waiver Request at 2.

[^7]: *Id.* The "Special Conditions" of the agreement contained the
    following language: "The bidder has to comply at all times with the
    Laws, Ordinances and Municipal Rules and the Laws and Rules of the
    state and the Federal Agencies which in any way affect or are
    related to the bid submitted or to the execution of the contract."
    *Id.*

[^8]: *See* *id.*

[^9]: *Id.*

[^10]: *Id.*

[^11]: *Id.* at 4-5

[^12]: 47 C.F.R. § 1.925(b)(3).

[^13]: *See* Waiver Request at 4.

[^14]: *Id.* at 5.

[^15]: *Id.* at 3.

[^16]: *Id.* at 4.

[^17]: *Id*. at 4-5. San Juan states that the necessary funding has been
    set aside in the next budget. *Id.* at 5.