**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | ET Docket No. 03-158         |
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| Amendment of Parts 2, 73, 74 and | ** | MB Docket No. 03-159         |
| 90 of the                        |    |                              |
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| Commission's Rules to Permit New | *) |                              |
| York City Metropolitan Area      | ** |                              |
| Public Safety Agencies           |    |                              |
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| to Use Frequencies at 482-488    | *) |                              |
| MHz                              | ** |                              |
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|                                  | ** |                              |
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+----------------------------------+----+------------------------------+

REPORT AND ORDER

**Adopted: March 31, 2004** **Released: April 9, 2004**

By the Commission: Chairman Powell issuing a statement.

1.  In this Report and Order, we amend our rules and reallocate on a
    permanent basis television Channel 16 (482-488 MHz) in the New York
    City Metropolitan Area to the land mobile service for public safety
    communications.[^1] We take this action in furtherance of our
    ongoing efforts to facilitate effective public safety communications
    and to promote interoperability between public safety agencies.

**I. BACKGROUND**

2.  In 1995, the Commission conditionally waived Parts 2 and 90 of its
    rules to allow the temporary assignment of frequencies in the
    482-488 MHz band to public safety agencies in the New York City
    Metropolitan Area. As a result of this action, public safety use of
    the frequencies was permitted for a period of at least five years or
    until a television broadcast station in the New York City
    Metropolitan Area initiates use of Channel 16 for advanced
    television broadcast operations, whichever was longer.[^2] In that
    *1995 Waiver Order*, the Commission found that the public safety
    agencies in New York had "an urgent and immediate need for
    additional spectrum capacity for public safety communications."[^3]
    The Commission believed that the use of TV Channel 16 would provide
    necessary relief and would allow for the development of
    interoperability of communications among the affected public safety
    agencies.[^4] Finally, the Commission concluded that the spectrum
    relief could be concluded without affecting then-existing television
    operations or plans for the implementation of advanced
    television.[^5]

3.  On July 10, 2003, we issued a *Notice of Proposed Rulemaking*
    (*NPRM*) [^6] seeking comment on a proposal by the Police Department
    of the City of New York (NYPD) regarding the allocation of Channel
    16 in the New York City Metropolitan Area.[^7] Specifically, the
    NYPD asserted, on behalf of itself and the other public safety
    agencies comprising the New York Metropolitan Advisory Committee
    (NYMAC) (collectively Petitioners), that there is a need to
    reallocate TV broadcast Channel 16 in the New York City Metropolitan
    Area to the land mobile service for public safety communications on
    a permanent basis.[^8] In support of their request, Petitioners
    state that the use of TV Channel 16 plays a critical role in the
    ability of the NYPD and other NYMAC agencies to engage in effective
    public safety communications.[^9] They also state that they have
    made enormous investments in planning, constructing and implementing
    a wireless infrastructure for voice and data which is integral to
    their ability to provide enhanced emergency response.[^10] According
    to the Petition, the NYPD alone has invested over \$50 million in
    the infrastructure for its operations on TV Channel 16, including
    transmitters, antennas, repeaters and approximately 25,000 portable
    and mobile radios. The Petitioners state that the New York City Fire
    Department, Corrections Department, Sanitation Department,
    Department of Information and Technology, Department of Parks and
    Recreation, and the Health and Hospitals Corporation Police all
    depend on TV Channel 16 as the core of their wireless communications
    capability. The Petition notes that public safety agencies in
    Suffolk County, New York and Nassau County, New York also rely on TV
    Channel 16. According to the Petition, these entities, as well as
    the New York Transit Authority and other area public safety
    agencies, have invested millions of dollars in equipment to utilize
    TV Channel 16.

4.  The Petitioners contend that the substantial investments made by the
    various public safety agencies in the use of TV Channel 16 could be
    jeopardized if a party petitioned the Commission to assign TV
    Channel 16 for digital television (DTV) use in the Hudson River
    Valley.[^11] Petitioners also express concerns regarding the
    potential for interference from low power television operation.[^12]
    In order to forestall these types of threats, the Petitioners seek
    to have TV Channel 16 in the New York City Metropolitan Area
    permanently allocated as part of the land mobile service for use as
    a public safety communications band.

5.  In the *NPRM,* the Commission sought comment on the Petitioner's
    proposal and on the technical consequences of the reallocation.
    Seventeen parties filed comments in response to the *NPRM*.[^13]
    Thirteen of those parties endorsed the proposal, while four raised
    concerns about all or part of it. The four parties expressing
    concerns about the proposed reallocation all stated that they needed
    additional technical data to evaluate the Petitioners' plan. The
    Petitioners countered that this additional data included information
    that was sensitive and that the release of that information could
    present a security threat. The Petitioners requested that they only
    be required to provide the technical data pursuant to a protective
    order. Therefore, on December 4, 2003, the Media Bureau issued a
    protective order directing that the sensitive information be
    provided, outlining who would be permitted to receive it, and
    setting forth rules for its use.[^14] Of the parties requesting the
    additional information, only one party filed supplemental comments
    based on its review of that information.[^15] The issues and
    concerns expressed by the parties that did not endorse the proposal
    are discussed below.

**II. DISCUSSION**

**A. Access to Spectrum by Public Safety Agencies in the New York
Metropolitan Area**

6.  The terrorist acts of September 11, 2001, and the ongoing terrorist
    threats to national security have made clear the need for public
    safety personnel to have the most reliable access possible to
    sufficient telecommunications capacity during an emergency. A
    reliable telecommunications system that will not be overwhelmed in a
    crisis is fundamental to the ability of first responders and medical
    personnel to do their jobs in an emergency. In the New York City
    Metropolitan Area, Channel 16 has been an integral part of the
    emergency agencies' telecommunications system since the Commission's
    temporary authorization for its use in 1995 and is a key element in
    their plans for the future.

7.  Although none of the commenters dispute the need for public safety
    agencies to have access to reliable communications, K Licensee and
    Mullaney question whether the reallocation of Channel 16 is
    necessary to meet that need. In their comments and reply comments,
    the Petitioners explain that Channel 16 is critical both to the
    existing communications infrastructure and to the future expansion
    of the system. As discussed further below, Petitioners argue that
    they need to expand their spectrum usage and that there is no other
    spectrum available for their use in the New York Metropolitan Area.

8.  In its comments, K Licensee relies on a report by McKinsey & Company
    (McKinsey) that it argues undermines Petitioners' purported need for
    more accessible spectrum.[^16] Our review of that report, however,
    shows that it supports the need for continued use of Channel 16 to
    meet current communications operations and future expanded
    operations by the emergency agencies. The McKinsey Report states
    that the emergency response groups have generally used their
    existing communications network, which includes Channel 16 as an
    integral part, exceptionally well. The McKinsey Report, however,
    does identify some problems with the communications infrastructure
    and recommends some changes and upgrades. Among the problems cited
    was an over-reliance on cell phones by some emergency responders,
    which has sometimes caused system overloads that prevent call
    completion. Because of such system overloads and other
    infrastructure damage, the McKinsey Report concludes that the
    current communications system employed by the emergency responders
    cannot be considered to be a reliable communications resource. The
    McKinsey Report also states more specifically that the Fire
    Department's communications system is inadequate and needs
    improvement. It recommends additional investment in wireless
    infrastructure by the Fire Department and by other agencies and
    greater investment in interoperability links between agencies.
    Rather than support K Licensee's argument against the reallocation,
    we find that the McKinsey Report supports the Petitioners'
    contention that they need to continue and expand their use of
    Channel 16. Our review of the McKinsey Report and of Petitioners'
    comments has convinced us that we were correct in our tentative
    conclusion that use of Channel 16 on a permanent basis will provide
    immediate and necessary relief to the emergency response agencies
    and will allow for the continued development of interoperability in
    the New York Metropolitan Area, the specific needs that the McKinsey
    Report indicates must be addressed by the New York public safety
    agencies.[^17]

9.  K Licensee also claims that the Petitioners have failed to
    demonstrate that no other spectrum is available to meet their needs.
    In the Technical Report attached to their proposal, the Petitioners
    include a frequency analysis (Frequency Analysis) to support their
    position that there is no other spectrum available to them within
    those bands that have been designated for public safety use. In
    support, the Petitioners include a frequency analysis of the
    technical parameters facing public safety entities in the New York
    City Metropolitan Area. The Frequency Analysis was prepared by Vogel
    Consulting Group, which conducted its own search of all existing
    land mobile frequencies in the New York City Metropolitan Area and
    contacted the Southern New York State Frequency Coordinator. The
    Frequency Coordinator also concluded that no other channels were
    available.

10. We believe that the Petitioners' analysis demonstrates that the only
    unassigned spectrum in the 150-160 MHz band is not usable due to the
    close proximity of existing adjacent channels. In the Frequency
    Analysis, the Petitioners state that there are no frequencies
    available in either the 450-454 MHz band or the 460-465 MHz band
    that would satisfy the needs of the agencies because there is
    inadequate bandwidth available and no manufacturer provides
    equipment for the narrow bandwidth that is available. The Frequency
    Analysis also discusses the UHF T-Band pools (in Channels 14 and 15)
    and determines that all of the 25 kHz channels and most of the 12.5
    kHz channels are assigned. Further, the Petitioners demonstrate that
    the 12.5 kHz channels that are unassigned are unusable due to
    adjacent channel spacing. Likewise, they assert that the 6.25 kHz
    channels in that band are not usable due to the closeness of the
    adjacent channels. The Petitioners also state that all of the
    channels in the 806-821, 821-824, 851-866, and 866-869 MHz band are
    in use. Finally, the Petitioners explain that immediate and future
    uses of the new Public Safety Band at 764-776/794-806 are prohibited
    in the New York City Metropolitan Area by current television station
    operations. Although K Licensee is skeptical of Petitioners'
    Frequency Analysis, it does not offer any evidence or arguments that
    dispute the conclusions made in the Frequency Analysis concerning
    public safety access to spectrum in the New York Metropolitan Area.
    We reject K Licensee's argument and find that the Petitioners have
    adequately demonstrated that there is no alternative spectrum
    available for their use.[^18]

**B. Section 303 Authority**

11. The frequencies at issue in this case - 482-488 MHz - are currently
    allocated for the broadcast television service in the Table of
    Frequency Allocations in Section 2.106 of our rules.  In their
    original request, Petitioners sought relief under Section 337(c) of
    the Communications Act of 1934, as amended. That provision directs
    the Commission to "waive any requirement of this Act or its
    regulations implementing this Act (other than its regulations
    regarding harmful interference) to the extent necessary to permit
    the use of unassigned frequencies for the provision of public safety
    services" when certain specified conditions are met.  Petitioners,
    however, are already operating on Channel 16 pursuant to a waiver.
    The arguments Petitioners made in their request and their subsequent
    comments make clear that they are not seeking any further waiver of
    the rules, but instead are seeking a permanent reallocation of
    television Channel 16 in New York City to public safety use.  By its
    own terms, Section 337(c) is a waiver provision and not a
    reallocation provision. Therefore, as discussed in the *NPRM,* we
    will proceed via Section 303 of the Communications Act, by which we
    can permanently reallocate the spectrum to fulfill the needs of all
    qualified public safety entities in New York City and delete the
    current allocation of that spectrum to broadcasting. We do not need
    to analyze whether Petitioners meet the requirements for a Section
    337(c) waiver, but we do need to determine whether the reallocation
    is in the public interest. In light of the continuing public safety
    needs of the New York Metropolitan Area and the shortage of spectrum
    in that area, we believe that there is a significant public interest
    basis for making the reallocation. Accordingly, we delete the
    current allocation of television Channel 16 in the New York City
    area and reallocate that spectrum to land mobile for use by public
    safety agencies. In making that reallocation, however, we must also
    consider the rights of existing licensees and the public interest in
    making sure those licensees are able to continue operation and to
    serve their audiences. We do not intend that this reallocation will
    impair or prevent the use of authorized facilities by existing
    licensees.

**C. Impact on Operations of TV Channel 17 in New York City**

12. In the *NPRM,* we discussed the historical relationship between the
    Petitioners and the licensee of WEBR-CA, Channel 17, New York City.
    The cooperation between these parties regarding interference
    avoidance goes back to the time of the temporary waiver. Several
    years ago, K Licensee and Petitioners entered into a Memorandum of
    Understanding (MOU) pursuant to which they agree to advise each
    other at least 60 days in advance of any change, alteration or
    modification to their existing facilities that may adversely affect
    or cause interference to the other party's communications
    system(s).[^19] The MOU that governs the resolution of interference
    disputes between the parties was incorporated into the Commission's
    Order establishing the Class A television service.[^20] K Licensee
    seemed to claim in its initial comments that the MOU only applied to
    a displacement application that was denied on August 19, 2002.
    However, the *Class A Order* which incorporated the MOU does not
    make any reference to a displacement proceeding. Indeed, the *Class
    A Order* made the MOU part of WEBR-CA's application to acquire Class
    A status and the licensee has never before indicated to the
    Commission that it does not consider itself bound by the MOU.
    Therefore, we can only conclude that K Licensee erred when it
    claimed not to be bound by the MOU and that the parties are still
    obligated to resolve their interference concerns pursuant to it. For
    their part, Petitioners' make clear that they intend to fulfill
    their obligations under the MOU and to resolve all disputes
    according to its terms. We fully expect our licensees to continue
    their history of cooperation under the MOU.

13. As we stated in the *NPRM*, we affirm that the notice requirements
    and the protections afforded to WEBR-CA in the *1995 Waiver Order*
    will continue in place. In their comments, the Petitioners'
    reiterate their commitment to maintaining the *status quo* in regard
    to their relationship with K Licensee. In its comments, K Licensee
    raises technical concerns regarding specific aspects of the
    reallocation. These concerns are related to the specific design of
    any expansion or modification of the system and how equipment used
    pursuant to that design will affect WEBR-CA's operations. The rules
    changes discussed below address those concerns. Furthermore,
    pursuant to the MOU, K Licensee will continue, as in the past, to be
    advised of and have an opportunity to examine any changes to the
    Petitioners' operations that may impact WEBR-CA's operations. We
    expect that any potential conflicts will be resolved cooperatively
    pursuant to the MOU, as in the past.

**D. Impact on Operations of Channel 17 in Philadelphia**

14. Tribune is the licensee of WPHL-TV, which is a full service NTSC
    Channel 17 station licensed to serve Philadelphia, Pennsylvania.
    WPHL-DT was assigned Channel 54 for its DTV operation. Channel 54 is
    an out-of-the-core channel and it is likely that WPHL will revert
    back to Channel 17 for DTV operation at the end of the DTV
    transition.[^21] Tribune is concerned that this reallocation will
    not provide full protection to the potential maximized use of its
    DTV facilities on Channel 17. Tribune's concerns are based on
    speculation about its possible future service and the possible
    future use of Channel 16 by Petitioners. This reallocation is
    granted based on the existing limits on the land mobile use of
    Channel 16 that are reflected in the *1995 Waiver Order* that
    established the temporary waiver. We have also considered Tribune's
    current operations in our decision. To the extent that either party
    changes its operations in the future, there are appropriate
    procedures in the Commission's licensing process in which they can
    raise their concerns. We expect the parties to cooperate fully in
    attempting to resolve any future conflicts. The Petitioners have a
    demonstrated history of cooperating with their neighbors in
    resolving conflicts and we expect that approach to continue.

15. Tribune also suggests that, rather than making a permanent
    allocation of the spectrum, we continue its temporary status and
    sunset the Petitioners' use of Channel 16 three to six months after
    the completion of the digital television transition. We believe
    Tribune's sunset proposal is impractical in terms of meeting the
    spectrum needs of the public safety agencies in the New York
    Metropolitan Area and that it would create a tremendous financial
    and logistical burden on the public safety agencies. We also believe
    that such a forced transition could jeopardize public safety in the
    long term by causing confusion at the time of transition and in the
    short term by discouraging investment in public safety services.
    Therefore, we reject Tribune's proposal.

**E. Other Matters**

16. K Licensee claims that it has been denied due process, been denied
    its rights under the Administrative Procedure Act, and been denied
    an opportunity to participate meaningfully in this proceeding. The
    record reveals, however, these claims to be utterly unfounded.
    According to the record, K Licensee was advised in August 2002, that
    the NYPD planned to seek permanent authority to operate on Channel
    16.[^22] A copy of the Petitioners' proposal was served on K
    Licensee May 16, 2003.[^23] The *NPRM* was released on July 10,
    2003, and appeared in the Federal Register on August 22, 2003,
    establishing an initial comment date of September 22, 2003.
    Subsequently, K Licensee requested access to the unredacted version
    of Petitioners' proposal and received it. Whether or not K Licensee
    agrees with Petitioners' contentions or with the conclusions of this
    Commission on this matter, K Licensee has had ample opportunity to
    participate "meaningfully" in this proceeding and to make its
    objections known. We reject its claims regarding violation of due
    process and violation of its rights under the Administrative
    Procedure Act.

17. The Petitioners have alleged that uncertainty exists as to whether
    Class A, low power television (LPTV) and TV translator stations must
    protect land mobile stations operating on Channel 16 in New York,
    New York. Petitioners assert that although Section 73.6020 of the
    rules specifically states that Class A TV stations must not cause
    interference to land mobile operations on Channel 16 in New York
    City,[^24] the rule does not specifically refer to LPTV, TV
    translators and TV booster stations. They question whether such
    facilities must also provide the same protection. Because our rules
    require LPTV and TV translator stations to protect existing land
    mobile uses,[^25] we believe it is clear they must provide such
    protection to Petitioners.[^26]

18. In the *NPRM*, we proposed to carry over the technical limitations
    from the temporary waiver to the permanent reallocation. The
    Petitioners do not object to this proposal and neither do any
    commenters. Accordingly, those limitations are incorporated into the
    comprehensive revisions of the rules that are discussed below.[^27]

    **F. Amendments to Parts 2, 73, 74, and 90 of our Rules**

19. In order to implement the decision discussed above, we are amending
    Section 2.106 of our Rules, the Table of Frequency Allocations
    (Table).[^28] The 482-488 MHz band is allocated to: 1) the land
    mobile service on a primary basis in four urbanized areas, which are
    specified in Table footnote NG66; 2) the fixed service on a primary
    basis for licensees in the land mobile service that are regulated as
    Commercial Mobile Radio Service (CMRS) providers in three of the
    four urbanized areas; and 3) the fixed and mobile services on a
    primary basis in the Gulf of Mexico, as specified in footnote
    NG114.[^29] In all other areas of the United States, the 482-488 MHz
    band is allocated to the broadcasting service on an exclusive basis
    for use by TV channel 16.[^30] We are revising footnote NG66 to add
    the 482-488 MHz band to the list of frequency bands that are
    available for use by the land mobile service in the following areas:
    New York City, Nassau, Suffolk, and Westchester Counties in New York
    State; and Bergen County, New Jersey. We are limiting the use of
    this primary land mobile service allocation to eligibles in the
    Public Safety Radio Pool.[^31] In addition, we are revising Sections
    73.623(e), 73.6020, and 74.709(a) of our Rules to conform to this
    allocation change. These changes will protect Public Safety
    facilities, which now are authorized by waiver, from new broadcast
    television facilities, both full service and low power, for which
    applicants could otherwise apply.[^32] In order to clarify the
    existing requirements for the protection of land mobile operations
    in three urbanized areas, we are also correcting omissions in two
    rule sections. Specifically, we are adding entries for TV channels
    15 and 16 in Cleveland and for TV channels 16 and 17 in Detroit to
    Section 73.623(e), and we are adding TV channel 16 to the Los
    Angeles entry in Section 74.709(a). In Section 90.303 of the Rules,
    we are adding a new paragraph (c) in order to make the 482-488 MHz
    band available for Public Safety licensing and to codify certain
    requirements from the *1995 Waiver Order* that are necessary in
    order to protect the broadcast television service.[^33]

20. We are also merging Table footnotes NG114 and NG127 into Table
    footnote NG66, which now will contains all uses that may be provided
    by Part 22 and Part 90 licensees in the 470-512 MHz band on a
    primary basis. We believe that these editorial amendments will
    assist the public in better understanding the allocation status of
    the 470-512 MHz band. Specifically, the structure of footnote NG66
    has been revised as follows. In the footnote's introductory
    paragraph, we expressly state that the Table entry for the primary
    allocation to the broadcasting service is limited in geographic
    scope. Paragraph (a) contains the 11 urbanized areas and frequency
    bands listed in footnote NG66 where the land mobile service may be
    used by Part 22 and Part 90 licensees on a primary basis.[^34] We
    also take this opportunity to update footnote NG66 by adding entries
    denoting that Part 22 and 90 licensees in Cleveland may use
    frequencies in the 470-482 MHz band (TV channels 14 and 15) and that
    Part 22 and 90 licensees in Detroit may use frequencies in the
    476-488 MHz band (TV channels 15 and 16).[^35] These cities and
    frequency bands are currently listed in Section 90.303 of our Rules,
    except that the entry for Cleveland erroneously lists channel 16 and
    omits channel 15.[^36] We likewise amend Section 90.303 to specify
    that Part 90 licensees may use frequencies in the 470-482 MHz band
    (TV channels 14 and 15) in Cleveland urbanized area. In revised
    footnote NG66, paragraph (a)(1) states that the Commission has
    granted licensees in the land mobile service that are regulated as
    CMRS providers the additional flexibility to offer fixed wireless
    services on their assigned spectrum on a co-primary basis with
    mobile services.[^37] Paragraph (a)(2) discusses the existing
    availability of the 482-488 MHz band (TV channel 16) for Public
    Safety use in the Los Angeles urbanized area and the new
    availability of this frequency band for Public Safety use in New
    York City and in four outlying counties.[^38] Paragraph (b) contains
    the allocations from footnote NG114 concerning Part 22 and 90 use of
    the 476-494 MHz band (TV channels 15-17) in the Gulf of Mexico.[^39]
    Because these fixed and mobile allocations and their status are not
    explicitly stated in footnote NG114, we also take this opportunity
    to clarify this situation based on Parts 22 and 90 of our
    Rules.[^40] Paragraph (c) contains the allocation from footnote
    NG127, which states that the 488-494 MHz band is allocated
    exclusively to the fixed service in Hawaii.[^41] Paragraph (d)
    points the reader to Parts 22 and 90 of our Rules for additional
    requirements on the use of these fixed and mobile service
    allocations.[^42] These changes permit us to remove footnotes NG114
    and NG127 from our Rules and to revise footnote NG66 to read as
    follows:

> NG66  The band 470-512 MHz (TV channels 14-20) is allocated to the
> broadcasting service on an exclusive basis throughout the United
> States and its insular areas, except as described below:
>
> (a)  In the urbanized areas listed in the table below, the indicated
> frequency bands are allocated to the land mobile service on an
> exclusive basis for assignment to eligibles in the Public Mobile
> Services, the Public Safety Radio Pool, and the Industrial/Business
> Radio Pool, except that:
>
> (1)  Licensees in the land mobile service that are regulated as
> Commercial Mobile Radio Service (CMRS) providers may also use their
> assigned spectrum to provide fixed service on a primary basis.
>
> (2)  The use of the band 482-488 MHz (TV channel 16) is limited to
> eligibles in the Public Safety Radio Pool in or near (i) the Los
> Angeles urbanized area; and (ii) New York City; Nassau, Suffolk, and
> Westchester Counties in New York State; and Bergen County, New Jersey.

+------------------------------+----------------------------+---------+
| Urbanized area               | > Bands (MHz)              | TV      |
|                              |                            | c       |
|                              |                            | hannels |
+------------------------------+----------------------------+---------+
| Boston,                      | > 470-476,                 | 14, 16  |
| MA............               | > 482-488                  |         |
| ...............\.......\.... | ....................\..... |         |
+------------------------------+----------------------------+---------+
| Chicago, IL-Northwestern     | > 470-476,                 | 14, 15  |
| Indiana...\.......           | > 476-482......            |         |
|                              | \.........\...\...\...\... |         |
+------------------------------+----------------------------+---------+
| Cleveland,                   | > 470-476,                 | 14, 15  |
| OH.........                  | > 476-482......            |         |
| ...............\...\........ | ...\......\...\...\...\... |         |
+------------------------------+----------------------------+---------+
| Dallas-Fort Worth,           | > 482-488.............     | 16      |
| T                            | ...........\......\....... |         |
| X...................\...\... |                            |         |
+------------------------------+----------------------------+---------+
| Detroit,                     | > 476-482,                 | 15, 16  |
| MI...........                | > 482-488...               |         |
| ........................\... | ..............\...\...\... |         |
+------------------------------+----------------------------+---------+
| Houston,                     | > 488-494.............     | 17      |
| TX.............              | ..............\......\.... |         |
| ...........\...\...\........ |                            |         |
+------------------------------+----------------------------+---------+
| Los Angeles,                 | > 470-476, 482-488,        | 14, 16, |
| CA......                     | > 506-512..........\...    | 20      |
| ...............\...\........ |                            |         |
+------------------------------+----------------------------+---------+
| Miami,                       | > 470-476.............     | 14      |
| FL.............              | .................\...\.... |         |
| ....................\...\... |                            |         |
+------------------------------+----------------------------+---------+
| New York, NY-Northeastern    | > 470476, 476-482.         | 14, 15, |
| New Jersey                   | > 482-488......\...\....   | 16      |
+------------------------------+----------------------------+---------+
| Philadelphia, PA-New         | > 500-506,                 | 19, 20  |
| Jersey............\.....     | > 506-512.                 |         |
|                              | .................\...\.... |         |
+------------------------------+----------------------------+---------+
| Pittsburgh,                  | > 470-476,                 | 14, 18  |
| PA.......                    | > 494-500\...\...\...\..   |         |
| .......................\.... | .\...\...\...\...\...\.... |         |
+------------------------------+----------------------------+---------+
| San Francisco-Oakland,       | > 482-488,                 | 16, 17  |
| CA...............\...        | > 488-494.                 |         |
|                              | .................\...\.... |         |
+------------------------------+----------------------------+---------+
| Washington,                  | > 488-494,                 | 17, 18  |
| D                            | > 494-500.                 |         |
| .C.-Maryland-Virginia...\... | .................\...\.... |         |
+------------------------------+----------------------------+---------+

> (b)  In the Gulf of Mexico offshore from the Louisiana-Texas coast,
> the band 476-494 MHz (TV channels 15-17) is allocated to the fixed and
> mobile services on a primary basis for assignment to eligibles in the
> Public Mobile and Private Land Mobile Radio Services.
>
> (c)  In Hawaii, the band 488-494 MHz (TV channel 17) is allocated
> exclusively to the fixed service for use by common carrier control and
> repeater stations for point-to-point inter-island communications only.
>
> (d)  The use of these allocations is further subject to the conditions
> set forth in 47 C.F.R. parts 22 and 90.

**III.** **CONCLUSION**

21. The terrorist attacks of September 11, 2001, underscored the
    increasing importance of public safety radio systems, which provide
    the primary telecommunication service for first responders in
    emergency situations. In the New York Metropolitan Area, the use of
    TV Channel 16 by the NYPD and NYMAC has been an essential part of
    this telecommunications service since the Commission's temporary
    authorization in 1995. This use of Channel 16 has successfully
    co-existed with television operations since that time. We believe
    that the public interest will be served by changing the temporary
    authorization to a permanent reallocation so as to facilitate the
    public safety agencies' ability to make long term plans based on the
    availability of Channel 16, to expand their investment in the
    spectrum, and to use the spectrum to protect public safety and
    well-being. By reallocating Channel 16 to public safety use in the
    New York City area, we believe that we will be providing permanent
    necessary spectrum capacity to area public safety agencies while
    continuing to facilitate the increasingly-important interoperability
    of public safety communications

**IV. ADMINISTRATIVE MATTERS**

22. The Commission has determined that the relevant provisions of the
    Regulatory Flexibility Act of 1980 do not apply to rule making
    proceedings to amend the TV Table of Allotments, Section 73.606(b)
    of the Commission\'s rules. See Certification That Sections 603 and
    604 of the Regulatory Flexibility Act Do Not Apply to Rule Making to
    Amend Sections 73.202(b), 73.504 and 73.606(b) of the Commission\'s
    Rules, 46 FR 11549, February 9, 1981.

23. This Report and Order does not adopt information collection(s)
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13.

**V. ORDERING CLAUSES**

24. Accordingly, IT IS ORDERED that pursuant to the authority contained
    in Sections 1, 4(i), 4(j), 301, 303, 308, and 309(j) of the
    Communications Act of 1934, as amended, 47 U.S.C. Sections 151,
    154(j), 157(a), 301, 303, 308 and 309(j), this Report and Order IS
    ADOPTED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**Comments**

APCO

Catholic Views Broadcasts, Inc.

International Association of Chiefs of Police

K Licensee, Inc.

International Association of Chiefs of Police

Major Cities Chiefs

Motorola, Inc.

Mullaney Engineering, Inc.

National Public Safety Telecommunications Council

New York City Transit Authority

Police Department of the City of New York and the New York Metropolitan
Advisory

Committee (NYPD/NYMAC)

Public Safety Wireless Network

Region 8-700 MHz Public Safety Planning Committee

Region 8-800 MHz Regional Planning Update Committee

Tribune Television Company

United States Conference of Mayors

United Telecom Council

**Reply Comments**

K Licensee, Inc.

NYPD/NYMAC

United Telecom Council

**Supplemental Comments**

K Licensee , Inc.

**Reply to Supplemental Comments**

NYPD/NYMAC

**APPENDIX B: Final Rules**

For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 C.F.R. parts 2, 73, 74, and 90 as follows:

**PART 2 -- FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS;**

**GENERAL RULES AND REGULATIONS**

1\. The authority citation for part 2 continues to read as follows:

**AUTHORITY**: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise
noted.

2\. Section 2.106, the Table of Frequency Allocations, is amended as
follows:

a\. Revise page 37.

b\. In the list of non‑Federal Government (NG) footnotes, revise
footnote NG66; and remove footnotes NG114 and NG127.

**[§ 2.106 Table of Frequency Allocations.]{.underline}**

The revisions read as follows:

\* \* \* \* \*

+-----------+-----------+-----------+-----------+-----------+---------+
| 470-849   |           |           |           |           | Page 37 |
| MHz (UHF) |           |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| Inte      |           |           | United    |           | FCC     |
| rnational |           |           | States    |           | Rule    |
| Table     |           |           | Table     |           | Part(s) |
+-----------+-----------+-----------+-----------+-----------+---------+
| Region 1  | Region 2  | Region 3  | Federal   | No        |         |
|           |           |           | G         | n-Federal |         |
|           |           |           | overnment | G         |         |
|           |           |           |           | overnment |         |
+-----------+-----------+-----------+-----------+-----------+---------+
| 470-790   | 470-512   | 470-585   | 470-608   | 470-512   | Public  |
|           |           |           |           |           | Mobile  |
| BRO       | BRO       | FIXED     |           | FIXED     | (22)    |
| ADCASTING | ADCASTING |           |           |           |         |
|           |           | MOBILE    |           | LAND      | Br      |
|           | Fixed     |           |           | MOBILE    | oadcast |
|           |           | BRO       |           |           | Radio   |
|           | Mobile    | ADCASTING |           | BRO       | (TV)    |
|           |           |           |           | ADCASTING |         |
|           | 5.292     |           |           |           | \(73\)  |
|           | 5.293     |           |           | NG66      |         |
|           |           |           |           | NG115     | Au      |
|           |           |           |           | NG128     | xiliary |
|           |           |           |           | NG149     | Broad   |
|           |           |           |           |           | casting |
|           |           |           |           |           |         |
|           |           |           |           |           | \(74\)  |
|           |           |           |           |           |         |
|           |           |           |           |           | Private |
|           |           |           |           |           | Land    |
|           |           |           |           |           | Mobile  |
|           |           |           |           |           | (90)    |
+-----------+-----------+-----------+-----------+-----------+---------+
|           | 512-608   | 5.291     |           | 512-608   | Br      |
|           |           | 5.298     |           |           | oadcast |
|           | BRO       |           |           | BRO       | Radio   |
|           | ADCASTING |           |           | ADCASTING | (TV)    |
|           |           |           |           |           |         |
|           |           |           |           |           | \(73\)  |
|           |           |           |           |           |         |
|           |           |           |           |           | Au      |
|           |           |           |           |           | xiliary |
|           |           |           |           |           | Broad   |
|           |           |           |           |           | casting |
|           |           |           |           |           |         |
|           |           |           |           |           | \(74\)  |
+-----------+-----------+-----------+-----------+-----------+---------+
|           | 5.297     | 585-610   |           | NG115     |         |
|           |           |           |           | NG128     |         |
|           |           | FIXED     |           | NG149     |         |
|           |           |           |           |           |         |
|           |           | MOBILE    |           |           |         |
|           |           |           |           |           |         |
|           |           | BRO       |           |           |         |
|           |           | ADCASTING |           |           |         |
|           |           |           |           |           |         |
|           |           | RADION    |           |           |         |
|           |           | AVIGATION |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
|           | 608-614   |           | 608-614   |           | P       |
|           |           |           |           |           | ersonal |
|           | RADIO     |           | RADIO     |           | (95)    |
|           | ASTRONOMY |           | ASTRONOMY |           |         |
|           |           |           | US74      |           |         |
|           | Mobile-   |           |           |           |         |
|           | satellite |           | LAND      |           |         |
|           | except    |           | MOBILE    |           |         |
|           |           |           | US350     |           |         |
|           | aer       |           |           |           |         |
|           | onautical |           |           |           |         |
|           | mobile-   |           |           |           |         |
|           | satellite |           |           |           |         |
|           |           |           |           |           |         |
|           | (Earth-   |           |           |           |         |
|           | to-space) |           |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
|           |           | 5.149     |           |           |         |
|           |           | 5.305     |           |           |         |
|           |           | 5.306     |           |           |         |
|           |           | 5.307     |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
|           |           | 610-890   | US246     |           |         |
|           |           |           |           |           |         |
|           |           | FIXED     |           |           |         |
|           |           |           |           |           |         |
|           |           | MOBILE    |           |           |         |
|           |           | 5.317A    |           |           |         |
|           |           |           |           |           |         |
|           |           | BRO       |           |           |         |
|           |           | ADCASTING |           |           |         |
+-----------+-----------+-----------+-----------+-----------+---------+
|           | 614-806   |           | 614-890   | 614-698   | Br      |
|           |           |           |           |           | oadcast |
|           | BRO       |           |           | BRO       | Radio   |
|           | ADCASTING |           |           | ADCASTING | (TV)    |
|           |           |           |           |           |         |
|           | Fixed     |           |           | NG115     | \(73\)  |
|           |           |           |           | NG128     |         |
|           | Mobile    |           |           | NG149     | Au      |
|           |           |           |           |           | xiliary |
|           |           |           |           |           | Broad   |
|           |           |           |           |           | casting |
|           |           |           |           |           |         |
|           |           |           |           |           | \(74\)  |
+-----------+-----------+-----------+-----------+-----------+---------+
|           |           |           |           | 698-764   | W       |
|           |           |           |           |           | ireless |
|           |           |           |           | FIXED     |         |
|           |           |           |           |           | Communi |
|           |           |           |           | MOBILE    | cations |
|           |           |           |           |           | (27)    |
|           |           |           |           | BRO       |         |
|           |           |           |           | ADCASTING | Br      |
|           |           |           |           | NG159     | oadcast |
|           |           |           |           |           | Radio   |
|           |           |           |           | NG115     | (TV)    |
|           |           |           |           | NG128     |         |
|           |           |           |           |           | \(73\)  |
|           |           |           |           |           |         |
|           |           |           |           |           | Au      |
|           |           |           |           |           | xiliary |
|           |           |           |           |           | Broad   |
|           |           |           |           |           | casting |
|           |           |           |           |           |         |
|           |           |           |           |           | \(74\)  |
|           |           |           |           |           |         |
|           |           |           |           |           | Private |
|           |           |           |           |           | Land    |
|           |           |           |           |           | Mobile  |
|           |           |           |           |           | (90)    |
+-----------+-----------+-----------+-----------+-----------+---------+
|           |           |           |           | 764-776   | Au      |
|           |           |           |           |           | xiliary |
|           |           |           |           | FIXED     | Broad   |
|           |           |           |           |           | casting |
|           |           |           |           | MOBILE    |         |
|           |           |           |           |           | \(74\)  |
|           |           |           |           | NG115     |         |
|           |           |           |           | NG128     | Private |
|           |           |           |           | NG158     | Land    |
|           |           |           |           | NG159     | Mobile  |
|           |           |           |           |           | (90)    |
+-----------+-----------+-----------+-----------+-----------+---------+

\* \* \* \* \*

NON-FEDERAL GOVERNMENT (NG) FOOTNOTES

\* \* \* \* \*

NG66  The band 470-512 MHz (TV channels 14-20) is allocated to the
broadcasting service on an exclusive basis throughout the United States
and its insular areas, except as described below:

(a)  In the urbanized areas listed in the table below, the indicated
frequency bands are allocated to the land are allocated to the land
mobile service on an exclusive basis for assignment to eligibles in the
Public Mobile Services, the Public Safety Radio Pool, and the
Industrial/Business Radio Pool, except that:

(1)  Licensees in the land mobile service that are regulated as
Commercial Mobile Radio Service (CMRS) providers may also use their
assigned spectrum to provide fixed service on a primary basis.

(2)  The use of the band 482-488 MHz (TV channel 16) is limited to
eligibles in the Public Safety Radio Pool in or near (i) the Los Angeles
urbanized area; and (ii) New York City; Nassau, Suffolk, and Westchester
Counties in New York State; and Bergen County, New Jersey.

+-------------------------------+------------------------+-------------+
| Urbanized area                | Bands (MHz)            | TV channels |
+-------------------------------+------------------------+-------------+
| Boston,                       | > 470-476,             | 14, 16      |
| MA...............             | > 482-488.             |             |
| ...\.....................\... | ................\..... |             |
+-------------------------------+------------------------+-------------+
| Chicago, IL-Northwestern      | > 470-476,             | 14, 15      |
| Indiana..............         | > 476-482....          |             |
|                               | ..\.........\...\..... |             |
+-------------------------------+------------------------+-------------+
| Cleveland,                    | > 470-476,             | 14, 15      |
| OH.........                   | > 476-482.......       |             |
| ............................. | ..\...\...\...\...\... |             |
+-------------------------------+------------------------+-------------+
| Dallas-Fort Worth,            | >                      | 16          |
| T                             | 482-488............... |             |
| X............................ | ...\......\...\....... |             |
+-------------------------------+------------------------+-------------+
| Detroit,                      | > 476-482,             | 15, 16      |
| MI..............              | > 482-488....          |             |
| .........................\... | ..........\...\...\... |             |
+-------------------------------+------------------------+-------------+
| Houston,                      | >                      | 17          |
| TX...........                 | 488-494............... |             |
| ............................. | ......\...\......\.... |             |
+-------------------------------+------------------------+-------------+
| Los Angeles,                  | > 470-476, 482-488,    | 14, 16, 20  |
| CA......                      | > 506-512.......\...   |             |
| ............................. |                        |             |
+-------------------------------+------------------------+-------------+
| Miami,                        | > 470-476............. | 14          |
| FL...............             | ..............\...\... |             |
| ........................\.... |                        |             |
+-------------------------------+------------------------+-------------+
| New York, NY-Northeastern New | > 470-476, 476-482,    | 14, 15, 16  |
| Jersey...\...                 | > 482-488......\....   |             |
+-------------------------------+------------------------+-------------+
| Philadelphia, PA-New          | > 500-506,             | 19,20       |
| Jersey..................\...  | > 506-512..            |             |
|                               | .............\...\.... |             |
+-------------------------------+------------------------+-------------+
| Pittsburgh,                   | > 470-476,             | 14, 18      |
| PA.........                   | >                      |             |
| ............................. |  494-500\...\...\...\. |             |
|                               | ..\...\...\...\...\... |             |
+-------------------------------+------------------------+-------------+
| San Francisco-Oakland,        | > 482-488,             | 16, 17      |
| CA......................      | > 488-494..            |             |
|                               | .............\...\.... |             |
+-------------------------------+------------------------+-------------+
| Washington,                   | > 488-494,             | 17, 18      |
| D.C.-                         | > 494-500....          |             |
| Maryland-Virginia......\..... | ........\...\...\..... |             |
+-------------------------------+------------------------+-------------+

(b)  In the Gulf of Mexico offshore from the Louisiana-Texas coast, the
band 476-494 MHz (TV channels 15-17) is allocated to the fixed and
mobile services on a primary basis for assignment to eligibles in the
Public Mobile and Private Land Mobile Radio Services.

(c)  In Hawaii, the band 488-494 MHz (TV channel 17) is allocated
exclusively to the fixed service for use by common carrier control and
repeater stations for point-to-point inter-island communications only.

(d)  The use of these allocations is further subject to the conditions
set forth in 47 C.F.R. parts 22 and 90.

\* \* \* \* \*

**PART 73 \-- RADIO BROADCAST SERVICES**

3\. The authority citation for Part 73 continues to read as follows:

**AUTHORITY**: 47 U.S.C. 154, 303, 334 and 336.

4\. The table in Section 73.623(e) is amended by revising the entry for
New York and by adding entries for Cleveland and Detroit to read as
follows:

**[§ 73.623 DTV applications and changes to the DTV
allotments.]{.underline}**

\* \* \* \* \*

\(e\) \* \* \*

  ----------------- ------------------------ ------------------ --------------
  City              Channels                 Latitude           Longitude

  \* \*             \*                       \*                 \*

  Cleveland,        14,                      41º 29\'           081º 41\'
  OH...\...         15....................   51.2\"..........   49.5\"

  \* \*             \*                       \*                 \*

  Detroit,          15,                      42º 19\'           083º 02\'
  MI..........      16....................   48.1\"..........   56.7\"

  \* \*             \*                       \*                 \*

  New York,         14, 15,                  40º 45\'           073º 59\' 39\"
  NY...\...         16...............        06\"............   

  \* \*             \*                       \*                 \*
  ----------------- ------------------------ ------------------ --------------

\* \* \* \* \*

5\. Section 73.6020 is amended by revising the last sentence to read as
follows:

**[§ 73.6020 Protection of stations in the land mobile radio
service.]{.underline}**

\* \* \* In addition to the protection requirements specified in §
74.709(a) of this chapter, Class A TV stations must not cause
interference to land mobile stations operating on channel 16 in New York
City; Nassau, Suffolk, and Westchester counties in New York State; and
Bergen County, New Jersey.

**PART 74\-\--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCASTING AND
OTHER PROGRAM DISTRIBUTIONAL SERVICES**

6\. The authority citation for Part 74 continues to read as follows:

**AUTHORITY**: 47 U.S.C. 154, 303, 307, and 554.

7\. Section 74.709(a) is amended by revising the entries for Los Angeles
and New York City in the table to read as follows:

**[§ 74.709 Land Mobile station protection.]{.underline}**

\(a\) \* \* \*

  ---------------------- -------------- ------------------ --------------
  City                   Channels       Coordinates        

                                        Latitude           Longitude

  \* \*                  \*             \*                 \*

  Los Angeles,           14, 16,        34º 03\'           118º 14\' 28\"
  CA\...\...\...\.....   20........     15\"............   

  \* \*                  \*             \*                 \*

  New York,              14, 15,        40º 45\'           073º 59\' 39\"
  NY.............        16........     06\"............   

  \* \*                  \*             \*                 \*
  ---------------------- -------------- ------------------ --------------

\* \* \* \* \*

**PART 90\-\--PRIVATE LAND MOBILE RADIO SERVICES**

8\. The authority citation for Part 90 continues to read as follows:

**AUTHORITY**: Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g),
303(r), 332(c)(7).

9\. Section 90.303 is amended to read as follows:

**[§ 90.303  Availability of frequencies.]{.underline}**

\(a\) Frequencies in the band 470-512 MHz are available for assignment
as described below. Note: coordinates are referenced to the North
American Datum 1983 (NAD83).

\(b\) The following table lists frequency bands that are available for
assignment in specific urban areas. The available frequencies are listed
in § 90.311 of this part.

  -------------------------- ------------ ------------ -------------------- ----------
  Urbanized area             Geographic                Bands (MHz)          TV
                             center                                         channels

                             North        West                              
                             latitude     longitude                         

  Boston,                    42° 21\'     71° 03\'     470-476, 482-488     14, 16
  MA....................     24.4\"       23.2\"                            

  Chicago, IL                41° 52\'     87° 38\'     470-476, 476-482     14, 15
  ^1^...............\....    28.1\"       22.2\"                            

  Cleveland, OH              41° 29\'     81° 41\'     470-476, 476-482     14, 15
  ^2^......\...\...\.....    51.2\"       49.5\"                            

  Dallas/Fort Worth,         32° 47\'     96° 47\'     482-488              16
  TX...\.....                09.5\"       38.0\"                            

  Detroit, MI                42° 19\'     83° 02\'     476-482, 482-488     15, 16
  ^3^...............\.....   48.1\"       56.7\"                            

  Houston,                   29° 45\'     95° 21\'     488-494              17
  TX...............\.....    26.8\"       37.8\"                            

  Los Angeles, CA            34° 03\'     118° 14\'    470-476, 482-488,    14, 16, 20
  ^4^............            15.0\"       31.3\"       506-512              

  Miami,                     25° 46\'     80° 11\'     470-476              14
  FL.....................    38.4\"       31.2\"                            

  New York/N.E.              40° 45\'     73° 59\'     470-476, 476-482,    14, 15, 16
  NJ............             06.4\"       37.5\"       482-488              

  Philadelphia,              39° 56\'     75° 09\'     500-506, 506-512     19,20
  PA..............           58.4\"       19.6\"                            

  Pittsburgh,                40° 26\'     79° 59\'     470-476, 494-500     14, 18
  PA.................        19.2\"       59.2\"                            

  San Francisco/Oakland, CA  37° 46\'     122° 24\'    482-488, 488-494     16, 17
                             38.7\"       43.9\"                            

  Washington., DC/MD/VA\...  38° 53\'     77° 00\'     488-494, 494-500     17, 18
                             51.4\"       31.9\"                            
  -------------------------- ------------ ------------ -------------------- ----------

^1^ In the Chicago, IL, urbanized area, channel 15 frequencies may be
used for paging operations in addition to low power base/mobile usages,
where applicable protection requirements for ultrahigh frequency
television stations are met.

^2^ Channels 14 and 15 are not available in Cleveland, OH, until further
order from the Commission.

^3^ Channels 15 and 16 are not available in Detroit, MI, until further
order from the Commission.

^4^ Channel 16 is available in Los Angeles for use by eligibles in the
Public Safety Radio Pool.

\(c\) The band 482-488 MHz (TV Channel 16) is available for use by
eligibles in the Public Safety Radio Pool in the following areas: New
York City; Nassau, Suffolk, and Westchester counties in New York State;
and Bergen County, New Jersey. All part 90 rules shall apply to said
operations, except that:

\(1\) [Location of stations.]{.underline} Base stations shall be located
in the areas specified in paragraph (c). Mobile stations may operate
throughout the areas specified in paragraph (c) and may additionally
operate in areas not specified in paragraph (c) provided that the
distance from the Empire State Building (40° 44\' 54.4\" N, 73° 59\'
8.4\" W) does not exceed 48 kilometers (30 miles).

\(2\) [Protection criteria.]{.underline} In order to provide co-channel
television protection, the following height and power restrictions are
required:

\(i\) Except as specified in paragraph (c)(2)(ii), base stations shall
be limited to a maximum effective radiated power (ERP) of 225 watts at
an antenna height of 152.5 meters (500 feet) above average terrain
(AAT). Adjustment of the permitted power will be allowed provided it is
in accordance with the "169 kilometer Distance Separation" entries
specified in Table B in 47 C.F.R. § 90.309(a) or the "LM/TV Separation
110 miles (177 km)" curve in Figure B in 47 C.F.R. § 90.309(b).

\(ii\) For base stations located west of the Hudson River, Kill Van
Kull, and Arthur Kill, the maximum ERP and antenna height shall be
limited to the entries specified in Table B in 47 C.F.R. § 90.309(a) or
in Figure B in 47 C.F.R. § 90.309(b) for the actual separation distance
between the base station and the transmitter site of WNEP-TV in
Scranton, PA (41° 10\' 58.0\" N, 75° 52\' 20.0\" W).

\(iii\) Mobile stations shall be limited to 100 watts ERP in areas of
operation extending eastward from the Hudson River, Kill Van Kull, and
Arthur Kill and to 10 watts ERP in areas of operation extending westward
from the Hudson River.

**STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: Amendment of Parts 2, 73, 74 and 90 of the Commission's Rules to
Permit New York City Metropolitan Area Public Safety Agencies to Use
Frequencies at 482-488 MHz*

This Nation's public safety community faces some of the most challenging
times in history as it works tirelessly to protect our citizens and
secure our homeland. One of the Commission's highest priorities is to
assist public safety, especially first responders, in meeting these
challenges by providing them with access to spectrum that can help save
lives.

Today's item does just that. The permanent reallocation of Ch. 16 in the
New York Metropolitan Area to public safety use will facilitate
effective public safety communications, enhance communications between
public safety agencies and allow the New York Metropolitan Area public
safety community do what they do best---protect the citizens of and
visitors to New York.

This Commission will continue to try and meet the needs of the public
safety community and use one of our citizens' most valuable public
resources---spectrum---to help save lives.

[^1]: The amended rules are attached in Appendix B.

[^2]: *Waiver of Parts 2 and 90 of the Commission's Rules to Permit New
    York Metropolitan Area Public Safety Agencies to Use Frequencies at
    482-488 MHz on a Conditional Basis*, 10 FCC Rcd 4466 (1995) (*1995
    Waiver Order*).

[^3]: *Id*. at 4468.

[^4]: *Id*.

[^5]: *Id*.

[^6]: *Amendment of Parts 2, 73, 74 and 90 of the Commission's Rules to
    Permit New York Metropolitan Area Public Safety Agencies to Use
    Frequencies at 482-488 MHz,* ET Docket No. 03-158 and MB Docket No.
    03-159, *Notice of Proposed Rulemaking,* 15 FCC Rcd 15,014 (2003)
    (*NPRM*).

[^7]: As in the *1995 Waiver Order*, for purposes of this proceeding,
    the New York Metropolitan Area includes the five boroughs of New
    York City, Nassau County, Suffolk County, Westchester County,
    including the cities of Yonkers and New Rochelle, and Bergen County,
    New Jersey.

[^8]: Letter to the Honorable Michael Powell, Chairman, Federal
    Communications Commission from John E. Gilmartin, Deputy Chief, The
    City of New York Police Department (December 5, 2002). Attached to
    the letter is a "Report of the Police Department of the City of New
    York," which is also dated December 5, 2002 (Report). We have
    treated the Report as a petition for rulemaking (Petition).

[^9]: Report, *supra* note 6, at 2.

[^10]: *Id*. at 2-3.

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

[^12]: *Id.*

[^13]: A complete list of commenters is attached as Appendix A.

[^14]: *Order Adopting Protective Order,* ET Docket 03-158 and MB Docket
    03-159*,* DA 03-3880, released December 4, 2003 (MB).

[^15]: K Licensee, Inc. (K Licensee) is the licensee of WEBR-CA, which
    is a channel 17 Class A low power television station with a
    community of license for Manhattan, NY. (WEBR-CA was previously
    licensed under call sign W17BM; its situation was discussed in the
    *1995 Waiver Order* under that call sign.) K Licensee requested
    additional information and filed responsive supplemental comments,
    which are addressed below. Mullaney Engineering (Mullaney), in its
    comments, also requested additional information but did not renew
    its request for that information pursuant to the terms of the
    protective order. Catholic Views Broadcasts, Inc. (Catholic Views)
    stated in its comments that it needed additional engineering
    information in order to evaluate Petitioners' proposal, subsequently
    requested that information pursuant to the protective order, and
    received the information, but it did not file supplemental comments
    addressing the additional data. Tribune Television Company (Tribune)
    also filed a request for the confidential information pursuant to
    the protective order, but did not file supplemental comments. The
    United Telecom Council (UTC), which supported the reallocation in
    its original comments, requested and was granted access to the
    confidential information pursuant to the protective order but did
    not file any responsive supplemental comments. Therefore, there are
    no issues raised by these commenters that need to be addressed
    further.

[^16]: *See* *Improving NYPD Emergency Preparedness and Response,*
    McKinsey & Company, August 19, 2002 (McKinsey Report), attached as
    Exhibit A to the Comments of K Licensee.

[^17]: In its comments, Mullaney argues that the reallocation is
    unnecessary because of the ultimate 700 MHz band allocation to
    public safety. *See* ET Docket 97-157. Mullaney overlooks the fact
    that our rules still allow broadcast stations to continue to operate
    on those channels, making it unlikely that they will be available
    for public safety operations before the end of the DTV transition.

[^18]: K Licensee also contends that we must examine whether the
    Petitioners are making the most efficient use of their spectrum
    before proceeding with the reallocation, but cites no authority for
    its position and no facts to indicate that the Petitioners are not
    being efficient.

[^19]: *See* Letter to Roy Stewart, Chief, Mass Media Bureau from
    Vincent M. Mansfield, Deputy Chief, Commanding Officer, Office of
    Technology and Systems Development, New York Police Department, and
    Young Dae Kwon, President, K Communications, dated March 27, 2000,
    attached as Appendix A to the Reply Supplemental Comments of the
    Petitioners.

[^20]: *Establishment of Class A Television Service, Report and Order,*
    15 FCC Rcd 6355, 6390 (2000) (*Class A Order*); *Report and Order on
    Reconsideration*, 16 FCC Rcd 8244, 8274 (2001).

[^21]: After the DTV transition has concluded, the "core" channels for
    television will be channels 2-36 and channels 38‑51. *See Advanced
    Television Systems, Reconsideration of the Sixth Report and Order,*
    13 FCC Rcd 7418 (1998).

[^22]: *See* Comments of K Licensee at page 7.

[^23]: *See* Letter of Cornelius C. Walsh, Lieutenant, Police Department
    of the City of New York, to K Licensee, dated May 16, 2003.

[^24]: 47 C.F.R. § 73.6020. ("An application to change the facilities of
    an existing Class A TV station will not be accepted if it fails to
    protect stations in the land mobile radio service pursuant to the
    requirements specified in §74.709 of this chapter. In addition to
    the protection requirements specified in §74.709(a) of this chapter,
    Class A TV stations must not cause interference to land mobile
    stations operating on Channel 16 in New York, NY.")

[^25]: 47 C.F.R. § 74.703(e). ("Low power TV and TV translator stations
    are being authorized on a secondary basis to existing land mobile
    uses and must correct whatever interference they cause to land
    mobile stations or cease operations.)

[^26]: We remind licensees of Wireless Assist Video Devices (WAVD)
    operating under Part 74, Subpart H -- Low Power Auxiliary devices,
    that WAVD operation is on a secondary, non-interference basis to TV
    broadcast and land mobile operations, on TV channels 8-12, 14-36 and
    38-51. *See* Sections 74.803 and 74.870. Thus, WAVD operation on TV
    Channel 17 (488-494) MHz in the eastern part of Suffolk County
    should be avoided, to avert interference to public safety land
    mobile operations on adjacent TV Channel 16. WAVD operation on TV
    Channels 15 and 16 in this area are already prohibited by Section
    74.780.

[^27]: In the *1995 Waiver Order,* the Commission stated that it
    contemplated that annual reports would be made by a joint committee
    of New York City broadcast interests and public safety agencies on
    frequency coordination. *1995 Waiver Order*, 10 FCC Rcd at 4467. As
    a result of the reallocation of Channel 16 we are eliminating this
    reporting requirement. In their comments, Petitioners' ask that
    Yonkers and New Rochelle be included in the reallocation. This
    request is moot because we are including Westchester County, New
    York, which includes both of these cities and which was included in
    the original waiver, in the reallocation.

[^28]: *See* 47 C.F.R. § 2.106 at page 537 of the Table of Frequency
    Allocations in the non-Federal Government Table for the 470-512 MHz
    band.

[^29]: *See* 47 C.F.R. § 2.106, footnotes NG66, NG114.

[^30]: In revised footnote NG66, below, we clarify that the band 470-512
    MHz is allocated to the broadcasting service on an exclusive basis,
    except in the listed areas where specified TV channels have been
    reallocated for other uses. We revise footnote NG66 in this manner
    because footnotes NG115, NG128, and NG149 do not limit the
    broadcasting service, instead these footnotes provide broadcasters
    with additional flexibility. Specifically, footnote NG115 permits
    broadcasters to use the band 470-512 MHz on a non-interference basis
    for wireless microphones. (In addition, motion picture producers may
    use this spectrum on a non-interference basis for wireless assist
    video devices.) Footnote NG128 authorizes TV broadcasters to use
    subcarriers on a secondary basis for both broadcast and
    non-broadcast purposes. Footnote NG149 provides a primary fixed
    service allocation for licensees of television broadcast stations
    who desire to offer subscription television operations in accordance
    with 47 C.F.R. Part 73.

[^31]: *See* 47 C.F.R. § 90.20(a) for the eligibility requirements to
    hold authorizations in the Public Safety Radio Pool.

[^32]: Currently, there is not an allotment for TV channel 16 use in the
    New York City metropolitan area. *See* 47 C.F.R. §§ 73.606 and
    73.622. However, the Petitioners are concerned that a party may
    petition the Commission to assign TV channel 16 for DTV use in the
    Hudson River Valley. The Petitioners also express concern regarding
    the potential for interference from low power television operations.

[^33]: Specifically, the existing material in 47 C.F.R. § 90.303 is
    re-numbered as paragraphs (a) and (b) and a new paragraph (c) is
    added. In paragraph (c), we are requiring that base and mobile
    stations be located within the reallocated area, except that mobile
    stations may go outside of the reallocated area if they stay within
    30 miles of the Empire State Building. We are also adding the height
    and power requirements that are necessary to protect reception of
    nearby TV stations operating on channel 16. In addition, the staff
    has corrected the horizontal coordinates of the Empire State
    Building to 40° 44\' 54.4\" N, 73° 59\' 8.4\" W using the NAD83
    datum published by the National Geodetic Survey. *See*
    [[www.ngs.noaa.gov]{.underline}](), survey control station PID
    KU3602. The staff has also replaced the NAD27 coordinates for
    WNEP-TV (Facility ID 73318) with the NAD83 coordinates contained in
    the Commission's Antenna Structure Database (ID 1043700), which are
    41° 10\' 58.0\" N, 75° 52\' 20.0\" W.

[^34]: *See* 47 C.F.R. § 2.106, footnote NG66.

[^35]: As currently stated in notes 4 and 5 to the table in Section
    90.303, these channels are not available until further order from
    the Commission. 47 C.F.R. § 90.303, notes 4 and 5.

[^36]: 47 C.F.R. § 90.303.

[^37]: Such use was authorized in the *CMRS Flexibility Order.* *See
    Amendment of the Commission's Rules to Permit Flexible Service
    Offerings in the Commercial Mobile Services*, WT Docket No. 96-6,
    *First Report and Order and Further Notice of Proposed Rule Making*,
    11 FCC Rcd 8965 (1996) at para. 2.

[^38]: *See* 47 C.F.R. § 2.106, footnote NG66 for the existing
    availability of TV channel 16 in the Los Angeles urbanized area.

[^39]: *See* 47 C.F.R. § 2.106, footnote NG114. Because this allocation
    has been merged into footnote NG66, we are deleting footnote NG114
    from our Rules.

[^40]: *See, e.g.,* 47 C.F.R. § 22.1025 and § 90.315.

[^41]: *See* 47 C.F.R. § 2.106, footnote NG127. Because this allocation
    has been merged into footnote NG66, we are deleting footnote NG127
    from our Rules.

[^42]: *See* 47 C.F.R. Parts 22 and 90.