**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of Application of  | *  | FCC File Nos. 0001923176,    |
|                                  | *) | 0001953696, 0002082677       |
| MILWAUKEE METROPOLITAN SEWERAGE  | ** |                              |
| DISTRICT                         |    |                              |
|                                  | *  |                              |
| Request for Waiver to Expand     | *) |                              |
| Fixed Operations On a Primary    | ** |                              |
| Basis in the 450-470 MHz Band    |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: July 5, 2006 Released: July 7, 2006**

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

# INTRODUCTION

1.  We have before us three applications and associated requests for
    waiver of the Commission's Rules filed by the Milwaukee Metropolitan
    Sewerage District (MMSD).[^1] MMSD seeks authority to expand its
    fixed wireless Supervisory Control and Data Acquisition (SCADA)
    system to monitor and control water levels and flow within its
    sewerage system. For the reasons discussed below, we grant MMSD's
    waiver requests, with the conditions described herein.

# BACKGROUND

2.  On February 11, 2004, the Wireless Telecommunications Bureau, Public
    Safety and Critical Infrastructure Division (Division) granted
    MMSD's request for a waiver of Section 90.261(a) and (c)[^2] of the
    Commission's Rules.[^3] Specifically, the grant permitted MMSD to
    operate four base frequencies (frequency pairs 453/458.475,
    453/458.850, and 453/458.925 MHz under Call Sign WPZP631, and
    frequency pair 453/458.750 MHz under Call Sign WPZP657) at four
    fixed locations (three in Milwaukee County, one in Waukesha County)
    with gain antennas on a primary basis.[^4] A waiver was required
    because Section 90.261(a) of the Commission's Rules permits fixed
    use in the 450-470 MHz band only on a secondary basis to land mobile
    operations, and Section 90.261(c) limits fixed system
    omnidirectional antennas to unity gain.[^5] The grant to MMSD was
    conditioned on MMSD not causing interference to the State of
    Wisconsin Department of Transportation's (WisDOT) statewide
    operations on Station KNJW977 on frequency pairs 453/458.475 and
    453/458.925 MHz. In addition, the grant authorized the use of four
    corresponding mobile frequencies at three hundred temporary fixed
    locations within thirty-two kilometers of the associated fixed
    stations. The Division noted that MMSD requested primary status to
    allow it to work with other licensees to resolve any interference
    issues, rather than being forced to shut down immediately if
    interference problems were to develop.[^6]

3.  On November 3, 2004, MMSD filed an application and waiver request
    seeking primary authorization on frequency pair 453/458.650 MHz.[^7]
    Specifically, MMSD requests three additional locations (two in
    Milwaukee County, one in Ozaukee County) and five temporary fixed
    stations operating on the base frequency; three hundred temporary
    fixed stations operating on the mobile frequency, and twenty control
    stations operating on MMSD's previously authorized frequencies
    458.475, 458.750, 458.850, and 458.925 MHz. The application was
    reviewed by FCC-certified frequency coordinators the Forestry
    Conservation Communications Association (FCCA) and the Association
    of Public-Safety Communications Officials-International, Inc.
    (APCO).[^8] Specifically, APCO noted that WisDOT objects to MMSD's
    expanded use of frequencies 458.475 and 458.925 MHz due to potential
    interference to operations under WisDOT's statewide license.[^9]
    Further, APCO stated that MMSD failed to account for potential
    interference on frequency 453.650 MHz to co-channel Station WQAH264,
    Delavan, Wisconsin, licensed to the Town of Delavan (Delavan).[^10]
    However, MMSD attached to its waiver request a contour study for
    frequency 453.650 MHz taking into account co-channel and adjacent
    channel licensees, and indicating that MMSD's proposed interference
    contours do not overlap Delavan's service contours.[^11] FCCA
    recommended that the application be granted with the special
    conditions contained in the previous *Order*,[^12] plus a special
    condition that temporary fixed stations operating on frequency
    453.650 MHz must not interfere with Station WQAH264 and Station
    KNIB478, Delavan, Wisconsin, licensed to the Delavan Lake Sanitary
    District.[^13]

4.  On November 30, 2004, MMSD filed an application and waiver request
    seeking primary authorization on frequency pair 453/458.100
    MHz.[^14] Specifically, MMSD requests four additional locations
    (three in Waukesha County, one in Milwaukee County) and four
    temporary fixed stations operating on the base frequency; three
    hundred temporary fixed stations operating on the mobile frequency;
    and twenty control stations operating on MMSD's previously
    authorized frequencies 458.475, 458.750, 458.850, and 458.925 MHz.
    MMSD attached a frequency coordinator statement from FCCA, which
    includes a statement of conditional consent from APCO.[^15] APCO
    stated that it did not object to this application, provided that
    operations on frequencies 458.475 and 458.925 MHz are secondary to
    existing licensees.[^16] FCCA recommended that the application be
    granted with the special conditions contained in the previous
    *Order*.[^17] MMSD attached a contour study for frequency 453.100
    MHz, which demonstrated that MMSD's proposed interference contours
    do not overlap the service contours of any incumbent co-channel
    licensees.[^18] On July 21, 2005, MMSD amended both applications
    with a letter of consent from the County of Milwaukee, which is
    authorized on frequency pairs 453/458.100 MHz and 453/458.650 MHz
    under Call Sign KRZ404.[^19]

5.  Both applications also seek a waiver of Section 90.137(b) of the
    Commission's Rules, which requires that when any fixed or base
    station unit(s) authorized at temporary locations remains in
    operation at the same location for more than one year, the user
    shall file an application for a separate authorization specifying
    the fixed location.[^20] MMSD operates approximately three hundred
    low power, low elevation remote monitoring or control stations
    throughout its system and anticipates, at a minimum, doubling the
    number with the planned system expansion.[^21] MMSD requests a
    waiver of this rule because the remotes may remain in their
    respective locations for more than a year .[^22]

6.  On March 14, 2005, MMSD filed an application and waiver request
    seeking primary authorization on frequency 453.850 MHz (already
    authorized to MMSD's Station WPZP631) at one of the fixed sites
    requested in the November 3, 2004 application.[^23] The application
    was coordinated by FCCA.[^24]

7.  On November 25, 2005, the Division sought comment on MMSD's first
    two applications and waiver request.[^25] We received comments from
    the Enterprise Wireless Alliance (EWA), APCO, WisDOT, and MMSD. MMSD
    and Delavan filed reply comments.

# DISCUSSION

8.  To obtain a waiver of the Commission's Rules, a petitioner must
    demonstrate either that the underlying purpose of the rule(s) would
    not be served or would be frustrated by application to the present
    case and that grant of the waiver would be in the public
    interest;[^26] or that, in view of 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.[^27] We
    believe that MMSD has shown that a waiver grant is warranted under
    the circumstances presented, and consistent with Division's analysis
    of MMSD's previous request.

9.  Regarding MMSD's requests to operate control stations on the four
    previously authorized frequencies, we agree with FCCA that these
    operations should be permitted subject to the same conditions
    imposed on MMSD's use of these frequencies in the *Order*. WisDOT
    opposes this expanded use of these frequencies because of the
    increased potential for interference to WisDOT's operations.[^28] We
    note, however, that WisDOT does not report any actual interference
    from MMSD's current operations. Moreover, the special conditions on
    MMSD's license require it to avoid interference to WisDOT's
    operations on the frequencies the two licensees share. We also
    believe that MMSD's use of these frequencies for control stations
    present a smaller potential for interference because control station
    antennas are typically lower than base station antennas.[^29]
    Finally, as we previously noted, because WisDOT's use of the
    temporary statewide channels would be highly localized and WisDOT
    has a fixed system operating in the area on other frequencies, we
    believe that MMSD's use of frequencies 458.475 and 458.925 MHz would
    have little to no effect, adverse or otherwise, on WisDOT's
    operations.[^30] For these reasons, we conclude that grant of the
    requests is appropriate, under the existing special conditions.[^31]

10. We note that Delavan does report actual interference from MMSD's
    SCADA system on frequency pair 453/458.925 MHz. Specifically,
    Delavan contends that due to MMSD's continuous transmitted carrier
    on these frequencies, Delavan is experiencing missed emergency radio
    traffic, unintelligible alerting pages to fire personnel, and
    disrupted fire ground communications.[^32] As MMSD notes in its
    reply comments, these concerns regarding frequency pair 453/458.925
    MHz apply primarily to MMSD's existing operations on Station WPZP631
    rather than the instant requests.[^33] As noted above, we do not
    believe that MMSD's proposed control stations on frequency 458.925
    MHz create an increased potential for interference. However, we
    remind MMSD that it requested primary status to allow it to work
    with other licensees to resolve any interference issues, rather than
    being forced to shut down immediately at some point in the future if
    interference problems were to develop, and that it acknowledged that
    sharing of the channels might be necessary.[^34] Accordingly, we
    expect MMSD to work with Delavan to resolve interference from MMSD's
    operations on Station WPZP631 on frequency pair 453/458.925 MHz.

11. Regarding MMSD's requests to add frequency 453.850 MHz and frequency
    pairs 453/458.100 and 453/458.650 MHz at various locations, the only
    objection in the record pertains to frequency pair 453/458.650
    MHz.[^35] As noted above, MMSD provided a contour analysis
    indicating that MMSD's proposed interference contours do not overlap
    Delavan's service contours.[^36] Moreover, we believe that MMSD's
    proposed operations on frequency pair 453/458.650 MHz presents less
    potential for interference than its present operations on frequency
    pair 453/458.925 MHz, because the associated base station will be
    located approximately twelve kilometers farther from Delavan than
    MMSD's base station for frequency pair 453/458.925 MHz. FCCA
    recommends imposing a special condition stating that MMSD's
    temporary fixed stations must not interfere with Delavan on
    frequency 453.650 MHz.[^37] We believe it is appropriate to require
    that none of MMSD's operations interfere with Delavan on frequency
    pair 453/458.650 MHz. Consequently, we will grant the requests, so
    conditioned.

12. Next, we consider MMSD's request for waiver of Section 90.137(b),
    which requires that when any fixed or base station unit(s)
    authorized at a temporary location remains in operation at the same
    location for more than one year, the user shall file an application
    for a separate authorization specifying the fixed location.[^38]
    Under the second prong of the waiver standard, MMSD has demonstrated
    that its circumstances are unusual in that several hundred remote
    monitoring and control stations are necessary to continuously
    monitor and control the flow of water in the system and related
    water levels, in order to comply with environmental regulations,
    protect the environment and public health, and mitigate
    flooding.[^39] We agree with MMSD that requiring the individual
    licensing of hundreds of remotes should they remain in place more
    than one year would be overly burdensome to both MMSD and the
    Commission with no concomitant benefit.[^40] Accordingly, we grant a
    waiver of Section 90.137(b) to MMSD so that its temporary remotes
    may remain in place for more than one year without individual
    licensing.[^41]

13. EWA, an FCC-certified frequency coordinator in the
    Industrial/Business (I/B) Pool, does not oppose MMSD's request
    because it applies only to channels in the Public Safety Pool.[^42]
    However, EWA believes that any request for similar relief in the I/B
    Pool should be denied as inconsistent with the regulatory structure
    governing that spectrum and with the shared use environment
    applicable to the systems that utilize those channels.[^43]
    Similarly, EWA's predecessor-in-interest, the Industrial
    Telecommunications Association,[^44] opposed MMSD's previous waiver
    request for primary status on the grounds that it would set a
    damaging precedent by opening the door for other entities to file
    similar waiver requests, thus creating an environment for further
    degradation in the band.[^45] The Division rejected the suggestion
    that no waiver should be granted on the grounds that granting too
    many waivers would undermine the purpose of the rules.[^46] We again
    conclude that this speculative concern is not a reason to deny the
    instant requests. Should similar waiver requests be filed, we will
    consider each case individually and scrutinize the effect on
    spectrum availability.[^47]

14. Accordingly, we believe that a waiver grant in this case would be
    consistent with MMSD's previous waiver grant. However, we maintain
    that a grant of MMSD's requests should neither operate to reduce
    WisDOT's flexibility under its existing license for Call Sign
    KNJW977[^48] nor result in interference to Delavan's operations.
    Therefore, we will impose the following conditions on MMSD's
    license: 1) MMSD must accept interference from WisDOT's operations
    under Call Sign KNJW977 and Delavan's operations under Call Signs
    WQAH264, KNIB478, and KNEV339; 2) MMSD's operations must not
    interfere with WisDOT's use of its statewide temporary mobile
    frequencies (453/458.475 and 453/458.925 MHz) or Delavan's
    operations on frequency pairs 453/458.650 and 453/458.925 MHz;
    and 3) if warranted, MMSD must develop a mutually agreeable plan
    with WisDOT and/or Delavan to mitigate interference.

15. We conclude that MMSD's waiver requests should be granted with the
    conditions as set forth herein, where applicable. The operation of
    MMSD affects the health, safety and security of approximately one
    million people in southeastern Wisconsin. Granting the waivers
    serves the public interest because the SCADA system protects the
    eco-system of Southeastern Wisconsin by facilitating MMSD's safety
    and environmental operations, such as storm water and wastewater
    overflow.

    **IV.** **ORDERING CLAUSES**

16. Accordingly, pursuant to Sections 4(i) and 309(a) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309(a),
    and Section 1.925 of the Commission's Rules, 47 C.F.R. § 1.925, IT
    IS ORDERED that the waiver requests filed by the Metropolitan
    Milwaukee Sewage District on November 3, 2004 with respect to
    application FCC File No. 0001923176, on November 30, 2003 with
    respect to application FCC File No. 0001953696, and on April 14,
    2005 with respect to application FCC File No. 0002082677 ARE GRANTED
    SUBJECT TO THE CONDITIONS set forth herein, and applications FCC
    File Nos. 0001923176, 0001953696, and 0002082677 SHALL BE PROCESSED
    in accordance with this *Memorandum Opinion and Order* and the
    Commission's Rules.

17. 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

Michael J. Wilhelm

Chief, Public Safety and Critical Infrastructure Division

Wireless Telecommunications Bureau

[^1]: *See* attachments to FCC File Nos. 0001923176, 0001953696 (Waiver
    Request A), and 0002082677 (Waiver Request B).

[^2]: 47 C.F.R. § 90.261(a), (c).

[^3]: *See* Milwaukee Metropolitan Sewerage District, *Order*, 19 FCC
    Rcd 2623 (WTB PSCID 2004) (*Order*).

[^4]: Each fixed location is assigned one frequency pair.

[^5]: 47 C.F.R. § 90.261(a), (c).

[^6]: *See Order*, 19 FCC Rcd at 2625 ¶ 7.

[^7]: FCC File No. 0001923176 (filed November 3, 2004, as amended July
    21, 2005).

[^8]: *Id*., Letter dated Nov. 2, 2004 from David Pagel, Region II
    Frequency Coordinator, Forestry Conservation Communications
    Association, to Federal Communications Commission (FCCA November 2
    Letter). The letter contains a statement from Michelle Fink, AFC
    Processing Services Manager, APCO International.

[^9]: *Id*. at 1-2.

[^10]: *Id*. at 2.

[^11]: *See* Waiver Request A, Attachment Three, Contour Study 453.6500
    MHz.

[^12]: *See Order*, 19 FCC Rcd at 2627 ¶ 11. The special conditions
    are: 1) MMSD must accept interference from WisDOT's operations under
    Call Sign KNJW977; 2) MMSD's operations must not interfere with
    WisDOT's use of its statewide temporary mobile frequencies
    (453/458.475 and 453/458.925 MHz) and, if warranted, MMSD must
    develop a mutually agreeable plan with WisDOT to mitigate
    interference.

[^13]: FCC File No. 0001923176 FCCA Letter at 1, 3.

[^14]: FCC File No. 0001953696 (filed November 30, 2004, as amended July
    21, 2005).

[^15]: *Id*., Letter dated Nov. 30, 2004 from David Pagel, Region II
    Frequency Coordinator, Forestry Conservation Communications
    Association, to Federal Communications Commission. The letter
    contains a statement of conditional consent from Vicki Menzel,
    Technical Assistant, APCO International.

[^16]: *Id*. at 1.

[^17]: *Id*. at 2. *See* n.Error: Reference source not found, *supra*.

[^18]: *See* Waiver Request A, Attachment Two, Contour Study 453.1000
    MHz.

[^19]: FCC File Nos. 0001923176, 0001953696, Letter dated April 12, 2004
    from Ted David, Communications Coordinator, Milwaukee County,
    Wisconsin to Bill Farmer, Milwaukee Metropolitan Sewer District.

[^20]: *See* 47 C.F.R. § 90.137(b).

[^21]: Waiver Request A at 4.

[^22]: *Id*.

[^23]: FCC File No. 0002082677 (filed March 14, 2005, as amended April
    14, 2005).

[^24]: Frequency Coordination No. FC200533046.

[^25]: *See* Wireless Telecommunications Bureau Seeks Comment on Request
    for Waiver by Milwaukee Metropolitan Sewerage District to Expand
    Fixed Operation on a Primary Basis in the 450-470 MHz Band, *Public
    Notice*, 20 FCC Rcd 18884 (WTB PSCID 2005). The Division did not
    place the third application on public notice because the proposed
    operation will not expand the service contour of Station WPZP631,
    but rather will provide stronger coverage in an area receiving
    marginal coverage from existing repeaters. *See* Waiver Request B at
    1.

[^26]: 47 C.F.R. § 1.925(b)(3)(i).

[^27]: 47 C.F.R. § 1.925(b)(3)(ii).

[^28]: *See* WisDOT Comments at 1.

[^29]: The typical antenna height for a control station is twenty feet
    (6.1 meters) above ground or an existing man-made structure. *See*
    47 C.F.R. § 90.119(b). MMSD requests 6.1 meter control stations.
    *See* FCC File No. 0001923176.

[^30]: *See* *Order*, 19 FCC Rcd at 2626 ¶ 11.

[^31]: We find unpersuasive WisDOT's suggestion that MMSD should be
    authorized only on a secondary basis, or with limits on the gain of
    its omnidirectional antennas. *See* WisDOT Comments at 1.

[^32]: Letter from Robert E. Rajchel, System Engineer, Communications
    Management, L.L.C (on behalf of the City of Delavan) to Office of
    the Secretary, Federal Communications Commission (dated Dec. 20,
    2005) at 1.

[^33]: MMSD Reply Comments at 2-3.

[^34]: *See* *Order*, 19 FCC Rcd at 2625 ¶ 7.

[^35]: *See* WisDOT Comments at 1 (recommending that MMSD not use
    frequency pair 453/458.650 MHz in order to protect Delavan's
    co-channel operations).

[^36]: *See* para. 3, *supra*.

[^37]: *See* FCCA November 2 Letter at 1.

[^38]: *See* 47 C.F.R. § 90.137(b).

[^39]: *See* Waiver Request A at 1.

[^40]: *Id*. at 4. As MMSD notes, similar waivers of Section 90.137(b)
    have been granted to other SCADA system operators. *Id*. at 5;
    *see*, *e.g.*, licenses for Stations WPWZ476, WPZP646, WPZP816.

[^41]: We concur with MMSD that "FXOT" is the appropriate station class
    code for MMSD's remotes and is consistent with previous grants for
    waiver of Section 90.137(b). *See* n.Error: Reference source not
    found *supra*.

[^42]: EWA Comments at 1.

[^43]: *Id*. at 1-2.

[^44]: *See* Mark E. Crosby, *Letter*, 20 FCC Rcd 8552 (WTB PSCID 2005).

[^45]: *See Order*, 19 FCC Rcd at 2625 ¶ 8.

[^46]: *Id*.

[^47]: Any future request from MMSD that, like the present applications,
    seeks a geographic and/or spectral expansion of primary, fixed
    operations on land mobile spectrum would receive particularly close
    scrutiny. We will not authorize fixed operations that do not leave
    adequate 450-470 MHz spectrum available to accommodate mobile
    communications in the area. *See* *Order*, 19 FCC Rcd at 2656 ¶ 6.

[^48]: *See id.* at 2627 ¶ 11.