Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | ) | FCC File No. A036934         |
|                                  |   |                              |
| DAVIS ELECTRONICS, INC.          | ) | FCC File No. D125140         |
|                                  |   |                              |
| Licensee of Industrial/Business  | ) |                              |
| Pool Station WPNX311, New        |   |                              |
| Albany, Indiana                  | ) |                              |
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| And                              | ) |                              |
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| LOUISVILLE AND JEFFERSON COUNTY  | ) |                              |
| METROPOLITAN SEWER DISTRICT      |   |                              |
|                                  | ) |                              |
| Licensee of Industrial/Business  |   |                              |
| Pool Station WPPE838,            | ) |                              |
| Louisville, Kentucky             |   |                              |
|                                  | ) |                              |
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|                                  | ) |                              |
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|                                  | ) |                              |
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|                                  | ) |                              |
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|                                  | ) |                              |
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|                                  | ) |                              |
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|                                  | ) |                              |
+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: May 28, 2002 Released: 1, 2002**

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

# INTRODUCTION

1.  We have before us an Informal Petition Requesting Recission or
    Modification of License Granted to Davis Electronics, Inc. filed by
    the Louisville and Jefferson County Metropolitan Sewer District
    (District) on September 25, 2000[^1] and a Status Update and Request
    for Initiation of Revocation Proceeding in Respect to Louisville and
    Jefferson County Metropolitan Sewer District Authorization WPPE838
    filed by Davis Electronics, Inc. (Davis) on May 2, 2001.[^2] For the
    reasons discussed below, we deny the District Recission Request and
    the Davis Revocation Request. On our own motion, however, we propose
    to modify the District's license for Station WPPE838, Louisville,
    Kentucky, to convert the license to a Public Safety Pool license and
    to change the frequencies of operation to frequency pair
    453.475/458.475 MHz.

# BACKGROUND

2.  On April 19, 1999, the District filed an application to operate
    Industrial/Business Pool Station WPPE838, Louisville, Kentucky, in a
    conventional mode on the frequency pair 452/457.675 MHz. The
    District is a government entity that applied for and uses the
    license in relation to the provision of water, waste and sewer
    services.[^3] On April 21, 1999, Davis filed an application for
    authority to operate an Industrial/Business Pool Station at New
    Albany, Indiana, in a trunked mode on, *inter alia*, 452/457.675
    MHz.[^4] Davis is a corporation that applied for and uses the
    license "to provide a for profit private carrier mobile relay for
    those eligible in the business radio service." On July 22, 1999, the
    Licensing and Technical Analysis Branch (Branch), Public Safety and
    Private Wireless Division issued Davis a license to operate
    Industrial/Business Pool Station WPNX311, New Albany, Indiana, in a
    trunked mode on, *inter alia*, 452/457.675 MHz.[^5] On November 16,
    1999, the Branch issued a license to the District to operate
    Industrial/Business Pool Station WPPE838, Louisville, Kentucky, on
    the same frequency pair.[^6]

3.  On September 25, 2000, the District requested that the Commission
    either rescind Davis' license to operate Station WPNX311 or "modify
    that license to remove the harmful interference caused by it to the
    \[District's\] station WPPE838."[^7] The District contends that it
    has been experiencing interference since Davis has been licensed to
    operate on frequency 452/457.675 MHz.[^8] According to the District,
    "it has four designated radio frequencies used by its personnel.
    Each frequency has been assigned to a particular division . . .
    (*i.e*., one frequency for sanitary sewer operations, one for
    engineers, etc.). The radio frequency in question is only utilized
    by those \[District\] employees responsible for drainage and flood
    control operations."[^9] The District explains that, due to
    interference on this frequency, it has been forced to move all such
    communications to one of the other three frequencies.[^10]

4.  The District offers four arguments in support of its request. First,
    the District contends that Station WPNX311's license automatically
    terminated on July 22, 2000 because Davis failed to commence
    operation within the time required by the Commission's Rules.[^11]
    Second, the District argues that Davis holds more licenses in the
    Louisville area than the Commission's Rules permit to be assigned to
    "a single applicant in a given area for mobile service
    operations."[^12] Third, the District contends that Davis should not
    have been granted a license for trunked operations on the subject
    frequency because its application fails to comply with the
    coordination requirements for trunked facilities set forth in
    Section 90.187 of the Commission's Rules.[^13] Fourth, the District
    contends that the Commission should rescind or modify Davis' license
    to operate Station WPNX311 because any interference caused by Davis
    poses "an imminent threat to the health and welfare" of the
    public.[^14]

5.  On May 2, 2001, Davis filed the Davis Revocation Request.[^15] Davis
    states that Station WPNX311 was timely constructed and remains fully
    operational and offers to provide the Commission with any
    documentation necessary to confirm the matter.[^16] Davis further
    contends that the District's assertion that it is licensed for too
    many channels in the State of Kentucky is similarly misplaced and
    "not germane to the issue under consideration."[^17] Moreover, Davis
    contends that, despite the District's assertions to the contrary,
    frequencies in the Public Safety Pool are and have been available to
    the District.[^18] Davis concludes that the Commission should
    initiate a proceeding, pursuant to Section 1.91 of the Commission's
    Rules,[^19] to revoke the District's authorization to operate
    Station WPPE838 on the subject frequency pair on the basis that the
    District is ineligible to hold the authorization for an
    Industrial/Business Pool frequency channel.[^20]

6.  On July 6, 2001, the District filed an Opposition to Request for
    Initiation of Revocation Proceeding and Alternative Request for
    Waiver *Nunc Pro Tunc*.[^21] First, the District argues that any
    opposition filed by Davis is untimely and should not be
    considered.[^22] According to the District, Davis' "cursory attempt"
    to show that Station WPNX311 was timely constructed and remains
    operational is unsupported by the record and insufficient to
    overcome the sworn affidavits filed with the District Recission
    Request.[^23] The District therefore reasons that we should grant
    its requested relief as unopposed.[^24] Second, the District argues
    that it is properly licensed to operate Station WPPE838 on
    Industrial/Business Pool frequency pair 452/457.675 MHz.[^25] In the
    alternative, if we were to determine that the District is ineligible
    to operate on the subject Industrial/Business Pool channel, it
    "requests a waiver, *nunc pro tunc* dating back to April 19, 1999
    (the date \[that\] it filed its application for \[Station\] WPPE838
    with the Commission), of Section 90.35(a) of the Commission's
    \[R\]ules, which restricts eligibility for the Industrial/Business
    pool frequencies of 425/457.675 MHz."[^26] Davis filed its reply in
    the instant matter on July 13, 2001.[^27]

7.  On September 20, 2001, District filed an application for a license
    to operate on conventional Public Safety Pool frequencies
    453.475/458.475 MHz.[^28] On November 29, 2001, the Branch granted
    that application.[^29]

# DISCUSSION

## The District Recission Request

8.  We find no basis to rescind or modify the license granted to Davis
    on July 22, 1999 for the operation of Station WPNX311. The record in
    this proceeding fails to support the District's contention that
    "Davis is no longer authorized to operate station WPNX311 because it
    has not complied with Section 90.155 of the Commission's
    Rules."[^30] Pursuant to Section 90.155(a) of the Commission's
    Rules, Davis was required to place Station WPNX311 into operation by
    July 22, 2000 to prevent the license from automatically canceling
    and reverting back to the Commission.[^31] The District alleges that
    it conducted tests at that time and concluded that there were no
    voice or data communications on the subject frequency.[^32]
    According to the District, it nevertheless experienced interference
    at that time due to alleged testing by Davis on frequency pair
    452/457.675 MHz.[^33] Davis states that the District's
    "mischaracterization of transmissions" on the subject frequency
    "likely are due to \[an\] unfamiliarity with the operation of the
    Logic Trunked Radio ("LTR") systems \[employed by Davis\]."[^34]
    Such a conclusion would also explain the interference that the
    District reported. In any event, we find that Davis presented the
    Commission with adequate evidence that it timely placed Station
    WPNX311 into operation.

9.  We find the District's remaining arguments similarly
    unpersuasive.[^35] The District's accusation that Davis is
    warehousing frequencies in violation of Section 90.35(e) of the
    Commission's Rules is misguided. Section 90.35(e) of the
    Commission's Rules permits the assignment of additional frequencies
    to a single applicant for mobile service operations in a given area
    upon a satisfactory showing of need.[^36] The District offers no
    discussion of whether Davis made the requisite showing of need for
    its channels. Rather, the District implies that Davis is warehousing
    spectrum simply because it has been assigned more than one frequency
    in this area.[^37] We disagree. We find nothing in the record to
    indicate that Davis failed to satisfy the threshold requirement of
    Section 90.35(e) of the Commission's Rules. Accordingly, for the
    reasons discussed above, we find no basis to rescind or modify the
    license granted to Davis on July 22, 1999 for the operation of
    Station WPNX311.

## The Davis Revocation Request

10. Davis argues that the District is not eligible, under Section 90.35
    of the Commission's Rules,[^38] to hold a license to operate on the
    subject frequency in the Industrial/Business Radio Pool.[^39] We
    agree. Section 90.35(a) of the Commission's Rules[^40] provides:

> a\) Eligibility. Persons primarily engaged in any of the following
> activities are eligible to hold authorizations in the
> Industrial/Business Pool to provide commercial mobile radio service as
> defined in Part 20 of this chapter or to operate stations for
> transmission of communications necessary to such activities of the
> licensee:

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> \(1\) The operation of a commercial activity;

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|                                                                       |
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| > \(2\) The operation of educational, philanthropic, or               |
| > ecclesiastical institutions;                                        |
+-----------------------------------------------------------------------+

  -----------------------------------------------------------------------

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> \(3\) Clergy activities; or

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> \(4\) The operation of hospitals, clinics, or medical associations.

  -----------------------------------------------------------------------

  -----------------------------------------------------------------------

The District does not fall within any of those categories. We also agree
with Davis that the *Refarming Second Report and Order*[^41] referenced
by the District[^42] actually undermines, rather than supports, the
District's insistence that it is eligible to secure an authorization in
the Industrial/Business Pool because government utilities were not
included in the category of entities eligible in the Industrial/Business
Pool.[^43]

11. We deny the District's request for a retroactive waiver[^44] of the
    eligibility restrictions of Section 90.35 of the Commission's
    Rules.[^45] The District argues that it qualifies for the requested
    relief under the second prong of the Commission's waiver standard
    set forth in Part 1 of its Rules.[^46] In order to obtain a waiver
    pursuant to Section 1.925(b)(3)(ii) of the Commission's Rules, the
    District must demonstrate that "\[i\]n 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] For the reasons discussed below, we find that the
    District failed to make such a showing.

12. The District's waiver request is predicated on the alleged
    unavailability of suitable public safety frequencies in Louisville,
    Kentucky.[^48] According to the District, it applied for the subject
    frequency in the Industrial/Business Radio Pool on the "working
    knowledge that there were no available public safety channels in
    Louisville."[^49] Although Davis continually suggested that the
    District apply for frequencies from the Public Safety Pool, the
    District failed to do so. The District states that it "learned on
    May 16, 2001 that a single frequency pair in the Public Safety Pool
    in Louisville had become available" and immediately sought
    coordination for that frequency from APCO on May 17, 2001.[^50]
    Since we have now issued the District an authorization for
    frequencies in the Public Safety Pool, we conclude that it would not
    be inequitable to require it to operate on the Public Safety Pool
    frequencies for which it is eligible. Accordingly, we deny its
    request for waiver.

13. The District argues that it should not be required to operate on the
    frequencies licensed to it under call sign WPTR589 because the
    Kentucky Correctional Institute for Women ("Institute") is allegedly
    operating on those frequencies on an expired license.[^51] The
    District cites no authority for the proposition that purported
    unauthorized operation on a frequency should be considered in
    determining whether an entity can and should be licensed on such
    frequency; furthermore, we are not aware of any such authority. The
    District is fully authorized to operate on the channel pair, and any
    unlicensed operation by the Institute would be a violation of
    Section 301 of the Communications Act of 1934, as amended.[^52]

14. Based upon our analysis, we conclude that the District's application
    for the subject frequency pair 452/457.675 MHz should not have been
    coordinated because the District was not eligible to obtain an
    authorization on Industrial/Business frequencies. We find that
    initiation of revocation proceedings against the District's station
    is unnecessary in the instant matter because we can resolve this
    matter by modifying the District's license to specify operation on
    Public Safety Pool frequencies that are already available to the
    District. Therefore, we believe that Section 316(a) of the
    Communications Act of 1934, as amended, provides the appropriate
    vehicle for resolving this matter.[^53] Section 316(a)(1) permits
    the Commission to modify a station license if the action will
    promote the public interest, convenience, and necessity.[^54] In
    this connection, we note that the proposed modification would serve
    the public interest by eliminating interference between Davis and
    the District and by ensuring that the District is operating on
    frequencies for which it is eligible.[^55]

15. Thus, we believe that a modification of the District's license to
    operate as a Public Safety Pool station and to change the operating
    frequencies to 453.475/458.475 MHz is appropriate to prevent harmful
    interference to Davis. In accordance with Section 1.87(a) of the
    Commission\'s Rules,[^56] we will not issue a modification order
    until the District has received notice of our proposed action and
    has had an opportunity to interpose a protest. To protest the
    modification, the District must, within thirty days of the release
    date of this *Memorandum Opinion and Order*, submit a written
    statement with sufficient evidence to show that the modification
    would not be in the public interest. The protest must be filed with
    the Office of the Secretary, Federal Communications Commission, 445
    Twelfth Street, S.W., Room TW-A325, Washington, D.C. 20554. If no
    protest is filed, the District will have waived its right to protest
    the modification and will be deemed to have consented to the
    modification.

# ORDERING CLAUSES

16. Accordingly, IT IS ORDERED that pursuant to Section 4(i) and 309(d)
    of the Communications Act of 1934, as amended, 47 U.S.C. § 154(i),
    309(d) and Section 1.45 of the Commission's Rules, 47 C.F.R. § 1.45,
    the Informal Petition Requesting Recission or Modification of
    License Granted to Davis Electronics, Inc. filed by the Louisville
    and Jefferson County Metropolitan Sewer District on September 25,
    2000 IS DENIED.

17. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 309(d) of
    the Communications Act of 1934, as amended, 47 U.S.C. § 154(i),
    309(d) and Section 1.91 of the Commission's Rules, 47 C.F.R. § 1.91,
    the Status Update and Request for Initiation of Revocation
    Proceeding in Respect to Louisville and Jefferson County
    Metropolitan Sewer District Authorization WPPE838 filed by Davis
    Electronics, Inc. on May 2, 2001 IS DENIED.

18. IT IS PROPOSED, pursuant to Sections 4(i) and 316(a) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 316(a),
    and Section 1.87 of the Commission\'s Rules, 47 C.F.R. § 1.87, that
    the license for Private Land Mobile Radio Services Station WPPE838,
    held by Louisville and Jefferson County Metropolitan Sewer District,
    BE MODIFIED by changing the station to a Public Safety Pool station
    and by changing the frequencies of operation to 453.475/458.475 MHz.

19. IT IS FURTHER ORDERED that this *Memorandum Opinion and Order* shall
    be sent by certified mail, return receipt requested, to District's
    counsel, Steven J. Hamrick, Esq., Fleischman and Walsh, L.L.P., 1400
    16^th^ Street, N.W., Washington, DC 20036.

20. These actions are 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 R. Terry
>
> Chief, Public Safety and Private Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: Louisville and Jefferson County Metropolitan Sewer District,
    Informal Petition Requesting Recission or Modification of License
    Granted to Davis Electronics, Inc. (filed Sept. 25, 2000) ("District
    Recission Request").

[^2]: Davis Electronics, Inc., Status Update and Request for Initiation
    of Revocation Proceeding in Respect to Louisville and Jefferson
    County Metropolitan Sewer District Authorization WPPE838 (filed May
    2, 2001) ("Davis Revocation Request").

[^3]: *Id.*

[^4]: *See* FCC File No. D125140 (filed Apr. 19, 1999). The United
    Telecom Council (UTC) coordinated the District's application. *See*
    FAC No. KY9UU01898.

[^5]: *See* License for Station WPNX311, FCC File No. A036934 (issued
    July 22, 1999). Davis Electronics, Inc., Application, FCC File No.
    A036934 (filed Apr. 21, 1999).

[^6]: *See* License for Station WPPE838, FCC File No. D125140 (issued
    Nov. 16, 1999).

[^7]: District Rescission Request at 11.

[^8]: *Id*.

[^9]: *Id.*, Exhibit C, Affidavit of Bud Schardein (Community Relations
    and Emergency Response Director for the District) ("Schardein
    Affidavit").

[^10]: *See id.*

[^11]: *See id.* at 2-3 (*citing* 47 C.F.R. § 90.155).

[^12]: *Id.* at 7; *see generally id.* at 7-9 (discussing 47 C.F.R. §
    90.35).

[^13]: *See id.* at 6-7 (*citing* 47 C.F.R. § 90.187).

[^14]: *Id.* at 9.

[^15]: *See* Davis Revocation Request. The Policy and Rules Branch
    ("Policy and Rules Branch"), Public Safety and Private Wireless
    Division extended the deadline for Davis to file its opposition in
    this matter to March 15, 2001 to permit the parties to continue
    settlement negotiations to resolve this matter. Absent any extension
    of time, Davis would have been required to file its opposition on or
    before October 5, 2000. *See* 47 C.F.R. §§ 1.4, 1.45. Davis filed
    requests for extensions of time on October 5 and November 30, 2000
    without opposition from the District. *See* Davis Electronics, Inc.,
    Motion for Extension of Time (filed Oct. 5, 2000); Davis
    Electronics, Inc., Motion for Further Extension of Time (filed Nov.
    30, 2000). On December 13, 2000, we granted a limited extension of
    time and required Davis and the District to file written reports
    describing their efforts to resolve this matter and the results of
    their settlement negotiations on or before January 16, 2001. *See*
    Davis Electronics, Inc., FCC File No. 9904A036934, *Order*, DA
    00-2800 (WTB PSPWD rel. Dec. 13, 2000) (*Extension of Time Order*).
    On January 16, 2001, Davis and the District informed us that,
    although settlement negotiations were ongoing, the parties had been
    unable to resolve this matter. *See* Davis Electronics, Inc., Status
    Report (filed Jan. 16, 2001); Louisville and Jefferson County
    Metropolitan Sewer District, Report Concerning Negotiations (filed
    Jan. 16, 2001). In response, we gave the parties until March 15,
    2001 to resolve the matter and required Davis to file its opposition
    on or before that date. *See* Letter from John J. Schauble, Chief,
    Policy and Rules Branch, Public Safety and Private Wireless
    Division, Wireless Telecommunications Bureau, to R. Bruce Beckner,
    Esq. and Elizabeth R. Sachs, Esq. (Feb. 14, 2001) ("February 14
    Branch Letter"); *see also* Letter from R. Bruce Beckner, Esq. and
    Steven J. Hamrick, Esq., to John J. Schauble, Chief, Policy and
    Rules Branch, Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau (filed April 10, 2001) ("April 10 District
    Letter"). Davis explains that, until it received the April 10
    District Letter, it was unaware of the February 14 Branch Letter
    requiring Davis to file its opposition in this matter by March 15,
    2001. *See id.* at 4 n.4.

[^16]: *See id.* at 2 n.1.

[^17]: *Id.*

[^18]: *See id.* at 4-7. After Davis disclosed the availability of
    public safety frequencies, the District contacted the Association of
    Public-Safety Communications Officials (APCO) to request
    coordination. The District also requested a number of extensions of
    time to further negotiate a resolution of this matter with Davis.
    *See* Louisville and Jefferson County Metropolitan Sewer District,
    Consent Motion for Extension of Time (filed May 17, 2001)
    ("Extension of Time Motion"); Louisville and Jefferson County
    Metropolitan Sewer District, Consent Motion for Extension of Time
    (filed May 25, 2001); ("Second Request"); Louisville and Jefferson
    County Metropolitan Sewer District, Consent Motion for Extension of
    Time (filed June 25, 2001) ("Third Request"). Unfortunately, the
    parties failed to resolve this matter.

[^19]: 47 C.F.R § 1.91.

[^20]: *See* Davis Revocation Request at 5-7 (discussing 47 C.F.R. §
    90.35).

[^21]: Louisville and Jefferson County Metropolitan Sewer District,
    Opposition to Request for Initiation of Revocation Proceeding and
    Alternative Request for Waiver Nunc Pro Tunc (filed July 6, 2001)
    ("District Opposition"). The District filed requests for extensions
    of time on May 17, May 25, and June 25, 2001. *See* Louisville and
    Jefferson County Metropolitan Sewer District, Consent Motion for
    Extension of Time (filed June 25, 2001); Louisville and Jefferson
    County Metropolitan Sewer District, Consent Motion for Extension of
    Time (filed May 24, 2001); Louisville and Jefferson County
    Metropolitan Sewer District, Consent Motion for Extension of Time
    (filed May 17, 2001). By letters dated May 22 and June 28, 2001, the
    Branch granted the District additional time and required it to file
    its opposition by July 6, 2001. *See* Letter from John J. Schauble,
    Chief, Policy and Rules Branch, Public Safety and Private Wireless
    Division, Wireless Telecommunications Bureau, to R. Bruce Beckner,
    Esq., and Elizabeth R. Sachs, Esq. (June 28, 2001); Letter from John
    J. Schauble, Chief, Policy and Rules Branch, Public Safety and
    Private Wireless Division, Wireless Telecommunications Bureau to R.
    Bruce Beckner, Esq., Fleischman and Walsh, LLP and Elizabeth R.
    Sachs, Esq., Lukas, Nace, Guiterrez & Sachs, Chtd. (May 22, 2001).

[^22]: *See* District Opposition at 2-4.

[^23]: *Id.* at 4.

[^24]: *See id.*

[^25]: *See id.* at 5.

[^26]: *Id.* at 5-6 (internal citations omitted).

[^27]: Davis Electronics, Inc., Reply to Opposition to Request for
    Initiation of Revocation Proceeding and Alternative Request for
    Waiver *Nunc Pro Tunc* (filed July 13, 2001).

[^28]: FCC File No. 0000598264.

[^29]: *See* License for Station WPTR589 (issued Nov. 29, 2001).
    Thereafter, the Policy and Rules Branch convened a meeting of the
    parties to discuss whether this matter had been resolved or if the
    parties could do so in a mutually beneficial manner. The Policy and
    Rules Branch gave the parties until January 7, 2002 to reach an
    agreement. The parties were unable to resolve this matter.

[^30]: District Recission Request at 2 (*citing* 47 C.F.R. § 90.155).

[^31]: *See* 47 C.F.R. § 90.155(a).

[^32]: *See* District Recission Request at 3 (*citing* the attached
    Affidavit of Rick Watkins, Special Assistant to the Director).

[^33]: *See id.* We address the District's subsequent contention that it
    is experiencing interference from the unauthorized use of a former
    licensee on Public Safety Pool frequencies 453.475/458.475 MHz in
    our discussion of the Davis Revocation Request below.

[^34]: Davis Reply at 7.

[^35]: Our action in this matter renders moot further consideration of
    the District's argument that Davis should not have been coordinated
    for trunked operations pursuant to 47 C.F.R. § 90.187.

[^36]: *See* 47 C.F.R. § 90.35(e).

[^37]: *See* District Recission Request at 7-9. We note that the
    District itself has been assigned multiple frequencies in this band.

[^38]: 47 C.F.R. § 90.35.

[^39]: *See* Davis Revocation Request at 5-7; Davis Reply at 9-12.

[^40]: 47 C.F.R. § 90.35(a).

[^41]: Replacement of Part 90 by Part 88 to Revise the Private Land
    Mobile Radio Services, *Second Report and Order*, 12 FCC Rcd 14307
    (1997) (*Refarming Second Report and Order*)*.*

[^42]: *See* District Opposition at 5.

[^43]: *See Refarming Second Report and Order*, 12 FCC Rcd at 14322 ¶
    27.

[^44]: *See* District Opposition at 5-7. We need not address the
    retroactive nature of the District's waiver request because, as
    explained below, the District fails to satisfy the threshold burden
    that granting a waiver is warranted under the circumstances
    presented.

[^45]: 47 C.F.R. § 90.35.

[^46]: *See* 47 C.F.R. § 1.925(b)(3)(ii).

[^47]: *Id.*

[^48]: *See* District Opposition at 6 ("without a grant of its waiver
    request . . ., \[it\] cannot obtain the channels necessary for it to
    provide . . . service to the public"); *id.* ("\[g\]iven the lack of
    available public safety channels in Louisville, a waiver in this
    case would benefit the public interest"); *id.* at 7 ("\[i\]f the
    Branch did not grant this waiver, \[the District\] could not operate
    its system as rapidly or efficiently, as there were no public safety
    channels in Louisville of which it could avail itself").

[^49]: *Id.* at 6.

[^50]: *Id.* at 6 n.6.

[^51]: *See* Louisville and Jefferson County Metropolitan Sewer
    District's Response to Davis' Statue Report, filed Jan. 23, 2002 at
    1-2.

[^52]: 47 U.S.C. § 301. If the District receives interference from
    unlicensed operation, it can request the assistance of the
    Commission's Enforcement Bureau. Further, on our own motion, we will
    refer the District's contention of unauthorized operation on the
    subject frequency pair to the Commission's Enforcement Bureau for
    investigation and appropriate action.

[^53]: 47 U.S.C. § 316(a)(1).

[^54]: *Id*.

[^55]: We recognize that, as modified, the District's license may be
    duplicative in light of the license issued under call sign WPTR589.
    In lieu of accepting the modification of the license for Station
    WPPE838, the District may choose to turn in the license for Station
    WPPE838 for cancellation and operate under the license for Station
    WPTR589.

[^56]: 47 C.F.R. § 1.87(a).