**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | ) | > WT Docket No. 06-18        |
|                                  |   |                              |
| STATE OF NEW YORK                | ) |                              |
|                                  |   |                              |
| Request for Waiver of Section    | ) |                              |
| 90.545 of the Commission's Rules |   |                              |
| to Implement a 700 MHz Public    | ) |                              |
| Safety System in Specified       |   |                              |
| Counties in the Greater New York | ) |                              |
| City Metropolitan Area           |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
+----------------------------------+---+------------------------------+

**ORDER**

**Adopted: December 20, 2007 Released: December 20, 2007**

By the Commission:

# introduction

1.  On October 24, 2005, the State of New York (New York) filed a
    request for waiver[^1] of Section 90.545 of the Commission's
    rules[^2] to permit it to implement a 700 MHz public safety radio
    communications system within specified counties in the greater New
    York City metropolitan area (Downstate New York)[^3] prior to the
    end of the transition from analog television (TV) to digital TV
    (DTV). For the reasons stated below, we grant New York's Waiver
    Request, subject to the conditions discussed herein.

# background

2.  New York holds a statewide, public safety license, Station WPTZ779,
    authorizing the use of certain frequencies within the 700 MHz band.
    New York originally proposed to operate in Downstate New York within
    the 774-776 and 804-806 MHz bands only.[^4] However, we have since
    established new rules for the 700 MHz band, including a shift in the
    public safety allocation so that it is now located at
    763-775/793-805 MHz.[^5] Subsequently, New York modified its
    requested operations, shifting down one megahertz to the 773-775 MHz
    and 803-805 MHz bands.[^6] Section 90.545, which generally sets
    forth the Commission's TV/DTV interference protection criteria,
    requires that public safety licensees operating in these bands
    reduce the potential for interference to public reception of the
    signals of existing TV and DTV broadcast stations transmitting on TV
    channels 62, 63, 64, 65, 67, 68, and 69.[^7] New York requests a
    waiver of Section 90.545 to allow it to operate its proposed public
    safety system in Downstate New York before the end of the DTV
    transition, in light of New York's acknowledgment that *de minimis*
    interference to TV/DTV reception may occur.[^8]

3.  New York states that many public safety agencies throughout the
    state currently operate obsolete facilities on various incompatible
    frequency bands,[^9] and that many radio systems lack sufficient
    in-building or wide-area coverage necessary to provide adequate
    response capability during emergencies.[^10] In particular, New York
    states that the Metropolitan Transportation Authority Police
    Department's (MTAPD) communications suffer from a lack of
    interoperability with local police departments and insufficient
    coverage in rail stations and tunnels.[^11] New York is in the
    process of implementing an integrated Statewide Wireless Network
    (SWN) to enhance interoperability for its state and local public
    safety and public service agencies.[^12] New York states that there
    is a critical and immediate need for deployment of the SWN in
    Downstate New York, and that the SWN will address these issues by
    establishing a common, cost-efficient, and fully interoperable
    infrastructure for all its state and local agencies that choose to
    participate.[^13]

4.  Pursuant to Section 90.545(a), licensees of public safety stations
    must choose site locations that are a sufficient distance from
    co-channel and adjacent channel TV and DTV stations, must use
    reduced transmitting power or transmitting antenna height to meet
    given minimum desired-to-undesired (D/U) signal ratios, or
    both.[^14] Section 90.545(b) sets forth the maximum effective
    radiated power (ERP) and antenna height above average terrain (HAAT)
    limits of proposed land mobile base stations, the associated control
    stations, and mobile transmitters.[^15] Section 90.545(c)(1) sets
    forth three methods to meet TV/DTV protection requirements,
    applicable to licensees of stations operating within the ERP and
    HAAT limits of paragraph (b).[^16] Section 90.545(c)(2) sets forth
    the method for determining geographic separations between base
    stations and TV/DTV stations.[^17] Below, we discuss how New York
    does not meet Sections 90.545(a), (b), (c)(1), and (c)(2), and thus
    requires a waiver.[^18]

5.  In support of its request, New York prepared an Engineering Study to
    demonstrate that the proposed public safety operations in Downstate
    New York would not cause significant interference to off-air TV
    reception on TV Channels 63, 64, 65, 68 and 69.[^19] The intent of
    the Engineering Study is to justify base station-to-TV/DTV station
    separation distances less than those permitted in Section
    90.545.[^20] The Engineering Study considers the effects of New
    York's proposed fixed and mobile operations on nine TV
    stations.[^21] New York opines that, while some interference is
    predicted, the number of affected viewers would be *de
    minimis*,[^22] and the interference would end upon the completion of
    the DTV transition.[^23] Specifically, with regard to nine
    co-channel and adjacent channel TV stations, New York projects that
    interference will affect less than one percent of each station's
    service population.[^24]

6.  As discussed further below, our decision in *Qualcomm* is
    instructive to the instant analysis regarding a *de minimis*
    exception. By way of background, in the *Qualcomm* decision,[^25]
    we, *inter alia*, recognized a *de minimis* exception to the
    required distance separations and D/U ratios for protecting
    incumbent broadcasters in the context of Section 27.60.[^26] In
    reaching our decision, we noted that "the applicable interference
    rule \[S\]ection 27.60 (and rule \[S\]ection 90.545 applicable to
    700 MHz public safety operation) rely upon required separation
    distances and D/U ratios that in turn are based upon application of
    *predictive* engineering models."[^27] We further noted that, while
    Part 27 does not provide for a *de minimi*s interference exception,
    "such thresholds have been applied in the broadcast context."[^28]
    We granted Qualcomm a limited waiver using a measured approach where
    the allowable predicted interference to a TV/DTV station's service
    caused by the MediaFLO system will increase incrementally each year
    from the release of the *Qualcomm* order until the end of the DTV
    transition.[^29]

7.  New York's Engineering Study purports to: (i) demonstrate that the
    separation criteria of Section 90.545 are satisfied for Station
    WNAC-TV, Channel 64, Providence, RI, and Station WUVP-TV, Channel
    65, Vineland, NJ;[^30] and (ii) show either no impact or *de
    minimis* impact using standard interference procedures to identify
    the percentage of population affected within each relevant TV/DTV
    station's analog Grade B or noise-limited DTV service contour.[^31]
    New York states that the results of its Engineering Study find that
    "in no case is the impact of interference greater than \[one\]
    percent of the \[TV\] station's service population, and for most the
    impact is far less, ranging from just 0.01 \[percent\] to 0.96
    \[percent\]."[^32]

8.  First, we describe the methodology of the Engineering Study. For
    fixed base stations operating in the Channel 64 Band and
    mobile/portable operations in the Channel 69 Band, New York
    evaluated the co-channels (TV Channels 64 and 69) and adjacent
    channels (TV Channels 63, 65, and 68) for potential interference to
    over-the-air reception. For the base station interference analysis,
    New York identified those of its proposed base stations that do not
    meet the interference protection criteria of Section 90.545 for each
    affected TV station operating on TV Channels 63, 64, and 65.[^33]
    Next, New York defined the study area of each TV and DTV station as
    the areas enclosed by the analog Grade B and DTV service contour,
    respectively.[^34] The study area is divided into cells, which are
    square surface area tiles with 3-arc second latitude and longitude
    dimensions.[^35] New York used the Longley-Rice propagation
    model[^36] to determine the signal strengths of the TV/DTV station
    (the "desired" signal strength) at each cell. For those cells having
    a desired signal strong enough to be received, New York used the
    Longley-Rice model to predict the "undesired" field strengths of its
    noncompliant base stations. Then New York summed these "undesired"
    field strengths and compared the resulting D/U signal strength
    ratios to the minimum required protection threshold values.[^37] For
    simplicity, New York conducted its base station interference
    simulations at a single frequency of 773.000 MHz so that all
    transmitted output power would accumulate on one frequency.[^38]
    Where the D/U ratio failed to meet or exceed the threshold, the
    population in the cell was counted as receiving interference.[^39]
    Finally, New York summed the populations of such affected cells and
    computed the percentage of the total population predicted to receive
    interference. The population count was obtained from U.S. Census
    Bureau Year 2000 data.[^40]

9.  For the mobile interference analysis, New York identified all TV
    stations operating on TV Channels 68 and 69 that are short-spaced to
    any proposed base stations with associated mobile units.[^41] New
    York noted that mobile operational characteristics such as
    locations, number of simultaneous transmissions, and duration are
    essentially random.[^42] Therefore, New York employed Monte Carlo
    statistical modeling simulations to conduct a large number of mobile
    radio distribution trials to the extent that the interference
    estimation results achieve a statistically significant
    representation of the actual interference environment.[^43] New York
    conducted 1,000 or 2,000 random placement trials per each set of
    simultaneously transmitting mobile units for each broadcaster
    interference situation.[^44] Again, New York computed a D/U ratio
    for each cell receiving service and computed the percentage of
    affected population.[^45]

10. On January 26, 2006, the Wireless Telecommunications Bureau (WTB)
    placed New York's Waiver Request on public notice.[^46] We received
    seven comments,[^47] one late-filed comment,[^48] and six reply
    comments.[^49] In addition, we received three subsequent *ex parte*
    letters in support of the Waiver Request.[^50] The *Public Notice*
    asked commenters to address whether the Waiver Request "is an
    appropriate vehicle for considering approval of a system that is
    allowed to cause some amount of predicted interference to TV and DTV
    service" and, alternatively, whether the Waiver Request "should be
    considered first in another context, such as the broader Qualcomm
    \[Petition for Declaratory Ruling\]," which was pending before the
    Commission when the *Public Notice* was released.[^51]

11. *Comments.* The majority of commenters to the *Public Notice*
    support the Waiver Request. APCO, NPSTC and Qualcomm believe that it
    would be in the public interest to permit New York to implement the
    proposed SWN in the Downstate New York area prior to the end of the
    DTV transition.[^52] Qualcomm states that New York presents a
    powerful public interest argument for improved public safety
    communications.[^53] Maranatha, licensee of TV Channel 69, Station
    WFMZ-TV, Allentown, Pennsylvania, states that New York's operations
    in the TV Channel 69 band would not result in significant
    interference to its viewers.[^54] The Region Planning Committees
    (RPCs) of the State of Missouri area and State of Tennessee area
    state New York's operations would cause minimal interference to TV
    viewers because the interference is predicted to be below the two
    percent *de minimis* standard of Section 73.623(c).[^55] Regarding
    the Engineering Study, M/A-COM, Inc. supports New York's analytical
    methods and results.[^56] NPSTC also believes that New York presents
    a reasoned and analytic description of how its operations would
    interact with and protect broadcast services.[^57]

12. However, Mountain Broadcasting Corporation (Mountain), licensee of
    Station WMBC-TV, Newton, New Jersey, operating on TV Channel 63, the
    lower-adjacent channel to New York's proposed base station
    operations, and WFUT-TV, licensee of Station WFUT-TV, Newark, New
    Jersey, operating on TV Channel 68, the lower-adjacent channel to
    New York's proposed mobile operations, express concerns about
    certain facets of New York's Engineering Study.[^58] Mountain
    expresses concern that the Engineering Study is unique and difficult
    to reproduce and verify.[^59] Mountain and WFUT-TV also contend that
    the Engineering Study is not transparent and does not provide
    technical assumptions.[^60] Moreover, Mountain and WFUT-TV state
    that New York's Engineering Study does not contain sufficient
    information to warrant a waiver of the Commission's interference
    protection rules.[^61] Mountain and WFUT-TV also argue that the
    Engineering Study does not correctly consider their respective
    stations' facilities.[^62] As discussed below, we find the
    Engineering Study, as supplemented, is acceptable because it is
    based on a methodology that reasonably predicts interference.

13. WFUT-TV believes that the Waiver Request should be considered in a
    larger context so that the Commission may assess and design, with
    input from numerous parties, a methodology to determine the extent
    of interference between such broadcast and land mobile
    operations.[^63] WFUT-TV states that such a proceeding would
    establish the appropriate thresholds for prohibited interference, as
    well as consider how to mitigate interference, particularly in the
    "mobile-into-fixed" environment.[^64] Qualcomm replies that
    considering the Waiver Request in a broader proceeding would delay
    the deployment of much-needed land mobile systems, such as New
    York's.[^65] Qualcomm states that each waiver request should be
    judged on its individual merits.[^66]

14. On March 13, 2006, New York submitted a First Engineering Supplement
    to include an amended analysis for Station WFUT-TV.[^67]
    Specifically, New York included Land Use Land Cover losses for
    determining the receive service area, and New York used a lower
    desired TV signal reception threshold.[^68] We note that the results
    from the First Engineering Supplement are superseded in light of a
    subsequent filing.

15. On April 4, 2006, New York submitted a Second Engineering Supplement
    attached to its Reply Comments.[^69] First, the Second Supplement
    corrects errors from the Engineering Study with respect to the
    parameters of Mountain's and WFUT-TV's licensed facilities.[^70]
    Next, the Second Engineering Supplement lists the relevant
    Longley-Rice propagation model parameters and technical assumptions
    taken into consideration for the analyses of interference to
    Stations WFUT-TV and WMBC.[^71] Finally, the Second Engineering
    Supplement reflects a revised initial deployment around
    transportation corridors, in response to WFUT-TV's observation that
    New York's initial mobile operations would be concentrated in those
    areas.[^72] Due to this deployment, New York states that the
    pre-2009 deployment of mobile and portable units will have a total
    quantity much less than the SWN as fully-deployed,[^73] and the new
    results computed for Station WFUT-TV are based on fewer simultaneous
    mobile transmissions.[^74] New York's revised analysis for WFUT-TV
    reveals that 0.098% of the service population would be subject to
    potential interference, which is about half the percentage projected
    in the initial study based on full system deployment.[^75] New
    York's revised analysis for WMBC-TV indicates that 0.21% of the
    population in its service area would be subject to potential
    interference, and that this percentage would be expected to drop to
    0.10% if Base Station Site Number 72 were not used.[^76]

16. On December 14, 2007, Mountain submitted a late-filed letter
    reiterating its general opposition to New York's request and
    objecting to New York's amendment to shift its operations down one
    megahertz to conform to our *700 MHz Second R&O*.[^77] In its
    letter, Mountain states that because New York's amended waiver would
    bring New York's operations one megahertz closer to the upper edge
    of WMBC-TV's allotment, "in all likelihood" the potential of actual
    interference to WMBC-TV's viewers would increase.[^78] On December
    17, 2007, New York filed a response stating that Mountain's letter
    only serves to reiterate Mountain's prior objections.[^79]

# discussion

17. Regarding the suitability of the Waiver Request, we do not find
    WFUT-TV's comments persuasive for the reasons stated by
    Qualcomm,[^80] especially given the impending February 17, 2009 date
    by which TV operations must vacate the 700 MHz Band. Accordingly, we
    find that the waiver process in this instance is an appropriate
    vehicle for considering approval of a system that is allowed to
    cause some amount of predicted interference to TV and DTV service.
    With regard to the second issue of whether we should consider the
    Waiver Request in another context such as Qualcomm's, we determined
    that New York's Waiver Request differed from Qualcomm's in certain
    key procedural and technical respects, and thus declined to address
    it in the *Qualcomm* decision.[^81] The second issue therefore is
    moot.

18. Our analysis of New York's Waiver Request is three-fold. We first
    discuss reasons why New York requires waiver relief. Because any
    engineering study submitted to justify proposed separations from
    TV/DTV stations must be approved by the Commission,[^82] we next
    examine the sufficiency of New York's Engineering Study submitted in
    support of its Waiver Request. Finally, we consider whether, in
    light of New York's public interest showing and Engineering Study, a
    waiver of Section 90.545 is warranted.

19. *Section 90.545*. New York does not meet the interference protection
    requirements of Section 90.545. Specifically, New York requires a
    waiver of Section 90.545(a) to the extent that the Engineering Study
    acknowledges that certain areas, or cells, within an affected TV
    station's Grade B contour do not satisfy the minimum D/U
    ratios.[^83] Next, New York requires a waiver of Section 90.545(b)
    to the extent that some or all base stations would have ERP and HAAT
    levels that exceed the allowable levels, depending on which TV
    station is affected.[^84] In addition, New York requires a waiver of
    Section 90.545(c)(1) because it is not qualified to use the three
    methods to meet TV/DTV protection requirements, because each
    proposed base station would *not* operate within the ERP and HAAT
    limits with respect to at least one affected TV/DTV station.
    Finally, New York requires a waiver of Section 90.545(c)(2) to the
    extent that each proposed base station also would fail to meet the
    required geographic separations with respect to at least one
    affected TV/DTV station.[^85]

20. *Sufficiency of Engineering Study*. We now turn to our assessment of
    the Engineering Study, as supplemented, while addressing comments.
    Mountain and WFUT-TV argue that New York's reliance on the *Aloha
    Partners*[^86] and *Access Spectrum* decisions[^87] as precedent is
    inappropriate due to the much larger scale of New York's
    request[^88] and because neither case involved mobile-into-fixed
    interference.[^89] Regarding the large scale nature of New York's
    proposal, we agree with New York that the number of fixed sites is
    irrelevant, so long as the Engineering Study demonstrates that no
    significant interference would occur.[^90] WFUT-TV expresses concern
    that New York's Engineering Study does not cite to any relevant
    precedent which supports the use of techniques and assumptions from
    "fixed-into-fixed" interference for an analysis of
    "mobile-into-fixed" interference, as is the case here.[^91] WFUT-TV
    states, "\[m\]obile-into-fixed interference is intermittent, ...
    widespread, ... annoying, and ... almost impossible for the consumer
    to identify and mitigate."[^92]

21. Regarding mobile interference, we concur with New York that
    statistical modeling is the most appropriate method to analyze the
    random nature of mobile-into-fixed interference.[^93] We note that
    New York's Second Engineering Supplement contains a detailed example
    of how to calculate interference from simultaneously transmitting
    mobile units to a single TV receiver.[^94] We concur with New York's
    response that households affected by New York's mobile operations
    would not lose the ability to view the applicable TV station;[^95]
    rather, they would be subject only to the possibility of rare and
    momentary interference to reception during the remaining period
    before the end of the DTV transition.[^96] We further believe that
    chances of interference from mobile units would be minimal because
    the Engineering Study assumed the worst-case scenarios in order to
    reduce the number of random variables in the simulations.[^97] For
    example, New York conducted the study using 30-watt ERP for mobile
    radios, although actual operations would see a lower-powered mix of
    15-watt ERP mobile radios and 3-watt ERP portable radios.[^98] Also,
    New York conducted all mobile interference simulations at a single
    frequency of 803.000 MHz so that all transmitted output power would
    accumulate on one frequency.[^99] Frequency 803.000 MHz is three
    megahertz above the upper edge of TV channel 68. In actuality,
    mobile operations would be spread over the frequency range 803-805
    MHz, thereby reducing the transmitted output power accumulation on
    any one frequency.[^100]

22. In a related matter, we note that the one megahertz shift that we
    adopted in the *700 MHz Second R&O* does not affect the
    applicability of New York's Engineering Study, as supplemented. All
    interference simulations were conducted at 773.000 MHz and 803.000
    MHz,[^101] which are at the lower band edges of the requested
    773-775 MHz and 803-805 MHz bands, respectively. Since the original
    requested bands were 774-776 and 804-806 MHz, we find that after the
    one megahertz shift, the Engineering Study, as supplemented predicts
    more accurately the interference potential. Mountain's December 14,
    2007, letter in which it renewed its prior arguments and objected to
    this one megahertz shift does not provide any new information that
    would alter this conclusion.[^102] Therefore, we conclude that no
    further engineering analysis is required to compensate for the
    shift.

23. New York indicates that several protection analysis methodologies
    pertaining to spectrum sharing between TV broadcasters and land
    mobile radio operators, including Commission-published documents OET
    TM87-1 and OET-69, have either influenced or been incorporated into
    its Engineering Study.[^103] Therefore, we find that New York's
    comprehensive methodology is based on generally accepted engineering
    practices to analyze fixed and mobile radio to TV receiver
    interference on a large scale, as discussed above.[^104] We find the
    Engineering Study, as supplemented, properly and clearly outlines
    the analytical and technical processes it employed to evaluate
    interference potential.[^105] We also find that New York provided
    sufficient information, as its Engineering Study provides a
    comprehensive list of the operating parameters of all 99 base
    stations at issue and their proposed operating frequencies.[^106]
    Further, we find that the Engineering Study, as supplemented,
    provides sufficient transparency because it lists the relevant
    technical assumptions and parameters taken into consideration.[^107]
    Accordingly, we approve New York's Engineering Study for the purpose
    of demonstrating predicted interference from New York's public
    safety operations in Downstate New York to the reception of TV/DTV
    stations.

24. *Request for Waiver*. As discussed above, New York requires a waiver
    because: (i) it does not meet the appropriate D/U signal ratios at
    the existing TV stations' authorized Grade B service contours, or
    equivalent contour for at least one DTV station, as required by
    Section 90.545(a); (ii) several of the base stations do not meet the
    ERP and HAAT limits set forth in Section 90.545(b); and (iii)
    several of the base stations would be short-spaced to existing
    TV/DTV stations, contrary to the requirements of Section
    90.545(c).[^108]

25. To obtain a waiver of the Commission's rules, a petitioner must
    demonstrate either that: (i) the underlying purpose of the rule(s)
    would not be served or would be frustrated by application to the
    present case, and that a grant of the waiver would be in the public
    interest; or (ii) 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,[^109] or the applicant has no reasonable
    alternative.[^110] An applicant seeking a waiver faces a high hurdle
    and must plead with particularity the facts and circumstances that
    warrant a waiver.[^111]

26. As the Commission noted when it adopted Section 90.545, while
    protecting public reception of TV and DTV stations is in the public
    interest, reliance on the technical criteria contained in tables may
    prevent public safety entities from fully utilizing the spectrum in
    a number of major metropolitan areas until after the transition
    period ends.[^112] As a result, public safety applicants are
    permitted to submit engineering studies to justify proposed
    separations "without causing excessive interference to TV/DTV
    stations."[^113] As discussed above, New York does not meet the
    interference requirements of Section 90.545.[^114] Against this
    backdrop, we therefore must determine whether the underlying purpose
    of Section 90.545 would not be served or would be frustrated by
    application to New York's use of a *de minimis* standard as part of
    its alternative showing, pursuant to Section 90.545.

27. We return to our decision in *Qualcomm* as it is instructive to our
    instant analysis. After conducting our own review of the Engineering
    Study, we note that the affected population percentages predicted by
    New York are within the *de minimis* standards and exceptions
    established in *Qualcomm*.[^115] Due to the incremental increase of
    allowable interference in *Qualcomm*, the *de minimis* allowance
    changed from 0.5 percent to 1.0 percent effective October 13,
    2007.[^116] Therefore, the percentages of TV station service
    populations predicted to receive interference, with a maximum of
    0.96 percent, are now within the current 1.0 percent *de minimis*
    allowance.

28. Based on our observations, we therefore disagree with WFUT-TV's
    contention that the *de minimis* threshold is inapplicable to the
    Waiver Request.[^117] Qualcomm observes in its comments to the
    instant Waiver Request that Section 90.545 does not state that there
    should be no interference to TV reception, as suggested by
    WFUT-TV,[^118] but rather that land mobile stations must take steps
    to reduce the potential for interference.[^119] Thus, as NPSTC and
    Qualcomm point out, we find that the use of a *de minimis*
    allowance, given the specific facts presented, is appropriate in the
    instant matter.[^120] This conclusion is consistent both with the
    text of Section 90.545 and with the determination in *Qualcomm*
    (interpreting identical language in Section 27.60 with respect to
    potential interference) that a *de minimis* exception was proper. We
    also find that our determination to grant the Waiver Request is
    consistent with the flexibility envisioned by the 1998 *Public
    Safety Rules Order* and the underlying purpose of Section
    90.545.[^121]

29. In addition to our assessment of the predictive nature of TV/DTV
    protection requirements, we also base our decision on the public
    interest benefits New York's proposed SWN would provide to Downstate
    New York. We recognize the public interest in reducing the potential
    for interference to the public's reception of existing TV and DTV
    broadcasts. At the same time, we also must consider the Commission's
    public interest purpose "of promoting safety of life and
    property."[^122] On balance, we therefore find that grant of the
    Waiver Request, subject to conditions specified herein, is
    consistent with the public interest. In reaching this conclusion, we
    consider significant the fact that New York is able to demonstrate
    that it would cause only *de minimis*, if any, interference to
    broadcast operations as well as the impending February 17, 2009
    "hard date" by which incumbent analog broadcasters must vacate the
    spectrum.[^123] We therefore find that any potential *de minimis*
    interference from New York's operations to TV channels 63, 64, 65,
    68, and 69 will diminish even further as consumers migrate from
    viewing analog TV channels to viewing DTV channels in other
    broadcast bands.[^124]

30. We find that granting the Waiver Request would be consistent with
    our goal "of promoting safety of life and property" because it would
    enable state and local government public safety use of an integrated
    and interoperable wireless network throughout Downstate New
    York.[^125] Specifically, we find New York's Waiver Request
    demonstrates that early access to 700 MHz spectrum is necessary in
    order to address the deficiencies described by New York[^126] and
    promote effective public safety communications. New York states that
    the SWN will fulfill an immediate need for law enforcement
    operations and the MTAPD, which oversees the public's safety on and
    around all Metropolitan Transit Authority facilities.[^127] New York
    also states that MTAPD's communications lack interoperability with
    local police departments and lack sufficient coverage in rail
    stations and tunnels.[^128] In this connection, New York states that
    deployment of the SWN will enhance interoperability for MTAPD as
    well as its state and local public safety and public service
    agencies.[^129] We find deployment of the SWN will contribute to "a
    forward-looking policy that drives toward the end-point of the DTV
    transition"[^130] as public safety radio systems are upgraded and
    widely integrated on interoperable platforms. We therefore conclude
    that a grant of the Waiver Request is consistent with the public
    interest to the extent it would enable New York to use the 700 MHz
    band for public safety operations over a dedicated, reliable and
    interoperable network.

31. Based on the facts before us, we therefore conclude that a waiver is
    appropriate, subject to certain conditions set forth below. In the
    *Public Notice*, WTB sought comment on whether a waiver granted to
    New York should be conditioned on a requirement that New York
    correct any reported interference to TV or DTV reception, and
    whether we should impose any other conditions.[^131] While we find
    that conditions placed on the waiver are appropriate, especially in
    light of the possibility of *de minimis* interference, we are not
    convinced by Mountain's comments that New York should be required to
    either (1) respond to or resolve every complaint of
    interference[^132] or (2) notify all potentially affected viewers in
    advance of operation.[^133] While potential interference complaints
    arising from mobile-to-fixed operations is an issue worth
    safeguarding against, we believe that the particular solutions
    Mountain proposes would be overly burdensome and cause potential
    delay in the deployment of SWN.[^134] For similar reasons, we also
    reject suggestions by WFUT-TV and Mountain that would require New
    York to evaluate "real-world" interference of each base station
    prior to SWN's authorization.[^135]

32. In an effort to permit New York to deploy its proposed public safety
    operations in the 700 MHz band through the end of the DTV
    transition, while at the same time provide adequate safeguards to
    protect TV viewers from harmful interference, we therefore grant the
    Waiver Request subject to the following conditions:

    \(a\) Operations granted pursuant to this Order are limited to
    frequencies in the 773-775 and 803-805 MHz portions of the band.

    \(b\) At least ten business days prior to activating one or more
    sites, New York shall provide a notification of intent to activate
    the site(s) to the Chief, Public Safety and Homeland Security
    Bureau, Federal Communications Commission, 445 12th Street, SW,
    Washington, DC 20554, and all affected broadcasters, as determined
    by use of the Engineering Study. For each base station, the
    notification shall contain the base station location address and
    geographic coordinates, effective radiated power, antenna height,
    beam tilt, and proposed date of activation. Notifications also shall
    include a single point of contact within the State of New York for
    resolving interference. Information for multiple base stations may
    be included on a single notification if the stations are to be
    activated on the same date. This notification requirement shall
    remain in effect until the end of the DTV transition.

    \(c\) New York must respond to any TV station that notifies New York
    that it has (1) received interference complaints from viewers,
    and (2) reasonably believes that New York is the source of the
    interference within the TV station's Grade B contour or DTV
    station's 41 dBu noise-limited contour, with the initial
    notification of the interference incident(s) specifying the specific
    geographic location(s), date(s) and time(s) of incident(s), and a
    single point of contact for the TV station. New York must respond to
    the initial notification within twenty-four hours of receipt. New
    York and the affected TV station should work together to determine
    if New York is in fact the source of interference. If so, then New
    York must take prompt steps to work with the TV station and correct
    the case of interference.[^136]

    \(d\) New York must accept interference from all incumbent full
    power TV stations operating in the 700 MHz Band until the end of the
    DTV transition. New York may not protest or request restrictions on
    any incumbent broadcaster's authorized operations.

    \(e\) New York shall not operate mobile, portable, and control
    stations below 803.000 MHz, until the end of the DTV
    transition.[^137]

    \(f\) New York must operate in accordance with its license for
    Station WPTZ779 and the technical parameters set forth in its
    Engineering Study, as supplemented, and as conditioned herein. New
    York will not be permitted under this waiver to cause new
    interference to any broadcast facility entitled to protection that
    already experiences interference to ten percent or more of its
    analog TV Grade B or protected DTV service population or that would
    result in a station receiving interference in excess of ten percent
    of its analog Grade B or DTV service population. For further
    modifications,[^138] New York will be required to file a Form 601
    modification application and an appropriate engineering study, which
    are subject to Commission approval.

    \(g\) New York may not transmit on 700 MHz Band channels from Base
    Station Site Number 72 without first taking field measurements to
    determine whether Station WMBC-TV can be viewed over the air in the
    area surrounding the site, within the TV station's Grade B
    contour.[^139] The measurements must either be taken in a manner
    consistent with Section 73.686 of the Commission's rules[^140] or
    conducted with the involvement of Station WMBC-TV. If reception of
    Station WMBC-TV on Channel 63 is possible, New York may not initiate
    700 MHz Band service from Base Station Site Number 72, absent the
    consent of Mountain. This condition shall remain in effect until the
    end of the DTV transition.

    \(h\) No fixed base station, mobile, or portable unit will transmit
    using 700 MHz frequencies east of 72.9 degrees west longitude
    (approximately Suffolk County Route 46 on Long Island), until the
    end of the DTV transition.[^141]

# conclusion

33. Based on the record before us, we conclude that granting New York's
    Waiver Request, subject to the conditions herein, is warranted and
    serves the public interest because it will enable New York to use
    only frequencies in the 773-775 and 803-805 MHz bands to supplement
    its public safety communications system in Downstate New York before
    February 17, 2009, the established date for completion of the DTV
    transition.

# Ordering Clauses 

34. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.925 of the Commission's rules, 47 C.F.R. § 1.925, the
    Request for Waiver of Section 90.545 Regarding 700 MHz Public Safety
    System Interference Protection for Co-Channel and Adjacent Channel
    Television Stations, filed by the State of New York on October 24,
    2005, as amended, IS GRANTED AS CONDITIONED HEREIN.

FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch
>
> Secretary

**APPENDIX**

Table of TV Stations and Affected Population Percentages from New York's
Engineering Study, As Supplemented[^142]

  --------- -------- --------- -------- ---------------- ---------- ------------ -------------- ------------
  TV        Status   Channel   TV       New York         Number of  Grade B      Interference   \% Affected
  Station                      Offset   Operation Mode   Base       Population   Population     Population
                                                         Stations                               

  WMBC      LIC      63        Adj      Base             76         4,427,067    10,233         0.231\*

  WNAC      LIC      64        Co       Base             0          0            0              0.000\*\*

  WPVI-DT   CP-MOD   64        Co       Base             35         8,802,671    63,130         0.720

  WQPX      LIC      64        Co       Base             61         449,342      4,315          0.960

  WEDY      LIC      65        Adj      Base             72         477,302      0              0.000

  WUVP      LIC      65        Adj      Base             0          0            0              0.000\*\*

  WFUT      LIC      68        Adj      Mobile\*\*\*     99         15,923,730   15,565         0.098\*

  WFUT      CP       68        Adj      Mobile\*\*\*     99         16,263,645   14,704         0.090\*

  WFMZ      LIC      69        Co       Mobile\*\*\*\*   71         3,448,565    434            0.010

  WPXQ      LIC      69        Co       Mobile\*\*\*\*   61         1,253,697    0              0.000
  --------- -------- --------- -------- ---------------- ---------- ------------ -------------- ------------

\* modified value from the Second Engineering Supplement

\*\* Study not required, § 90.545(c)(2) compliant

\*\*\* based on 120 simultaneous, randomly placed mobile
transmissions[^143]

\*\*\*\* based on 300 simultaneous, randomly placed mobile transmissions

[^1]: *See* State of New York, Request for Waiver of Section 90.545
    Regarding 700 MHz Public Safety System Interference Protection for
    Co-Channel and Adjacent-Channel Television Stations (filed Oct. 24,
    2005) (Waiver Request). This and other documents in this proceeding
    may be accessed online via the Commission's Electronic Comment
    Filing System, http://gullfoss2.fcc.gov/prod/ecfs/comsrch_v2.cgi,
    under WT Docket No. 06-18.

[^2]: 47 C.F.R. § 90.545.

[^3]: "Downstate New York" consists of Dutchess, Orange, Putnam,
    Rockland, Westchester, Bronx, New York, Richmond, Kings, Queens,
    Nassau, and Suffolk Counties. *See* Waiver Request at 1 n.1.

[^4]: *See* Waiver Request at 2.

[^5]: *See* Implementing a Nationwide, Broadband, Interoperable Public
    Safety Network in the 700 MHz Band; Development of Operational,
    Technical and Spectrum Requirements for Meeting Federal, State and
    Local Public Safety Communications Requirements Through the Year
    2010, PS Docket No. 06-229, WT Docket No. 96-86, *Second Report and
    Order*, 22 FCC Rcd 15289 (2007) (*700 MHz Second R&O*).

[^6]: *See* Letter from Hanford C. Thomas, Project Director, Statewide
    Wireless Network, State of New York Office for Technology, to
    Marlene Dortch, Secretary, Federal Communications Commission (dated
    Sept. 14, 2007) at 2. We find that New York's amended frequency
    ranges comport with the consolidated 700 MHz public safety
    narrowband allocation. *See* *id*.

[^7]: 47 C.F.R. § 90.545. On February 1, 2006, Congress established a
    "hard date" of February 17, 2009 for the end of the DTV transition,
    at which time full-power TV stations must cease over-the-air analog
    broadcasts and vacate TV channels 60-69. *See* Deficit Reduction Act
    of 2005, 47 U.S.C. § 309(j)(14)(A). After the DTV transition, public
    safety stations in the 763-775 MHz and 793-805 MHz bands no longer
    will be required to protect reception of co-channel or adjacent
    channel TV/DTV stations. *See* 47 C.F.R. § 90.545(c).

[^8]: Waiver Request at 2, 9.

[^9]: *Id*. at 2-3.

[^10]: *Id*. at 5.

[^11]: *Id*.

[^12]: *Id*. at 8.

[^13]: *Id*. at 8-9.

[^14]: *See* 47 C.F.R. § 90.545(a). A D/U ratio is the difference
    between the strength of a desired signal and the strength of an
    undesired signal, expressed in decibels. In this case, the desired
    signal comes from a broadcast TV/DTV station, and the undesired
    signal comes from New York's public safety radio operations.

[^15]: *See* 47 C.F.R. § 90.545(b).

[^16]: *See* 47 C.F.R. § 90.545(c)(1). Licensees of stations operating
    within the ERP and HAAT limits of § 90.545(b) must select one of
    three methods to meet the TV/DTV protection requirements, subject to
    Commission approval: (i) utilize the geographic separation specified
    in the tables referenced in § 90.545(c)(2); (ii) submit an
    engineering study justifying the proposed separations based on the
    parameters of the land mobile station and the parameters, including
    authorized and/or applied for facilities, of the TV/DTV station(s)
    it is trying to protect; or (iii) obtain written concurrence from
    the applicable TV/DTV stations(s). *Id*.

[^17]: *See* 47 C.F.R. § 90.545(c)(2), which obtains distances from
    specified tables in 47 C.F.R. § 90.309.

[^18]: *See infra* para. 19.

[^19]: *See* 90.545 Engineering Study, Downstate New York 700 MHz Public
    Safety Operations, filed by New York (Oct. 24, 2005) (Engineering
    Study). *See also* Supplement, filed by New York (Mar. 13, 2006)
    (First Engineering Supplement), and Supplemental Engineering Study
    for Reply Comments, filed by New York (Apr. 4, 2006) (Second
    Engineering Supplement).

[^20]: *See* Engineering Study at 47.

[^21]: The TV stations are: WMBC (63 NTSC), Newton, NJ; WNAC (64 NTSC),
    Providence, RI; WPVI (64 DTV), Philadelphia, PA; WQPX (64 NTSC),
    Scranton, PA; WEDY (65 NTSC), New Haven, CT; WUVP (65 NTSC),
    Vineland, NJ; WFUT (68 NTSC), Newark, NJ; WFMZ (69 NTSC), Allentown,
    PA; and WPXQ (69 NTSC), Block Island, RI.

[^22]: *See* Waiver Request at 13-15 (citing 47 C.F.R. § 73.623(c)).

[^23]: *See* Waiver Request at 13.

[^24]: Specifically, New York projects that interference would affect
    0.96% or less of each station's service population. *Id*. For
    specific affected population percentages, *see* *infra* Appendix.
    Although New York requests that we take into consideration that
    cable and satellite subscriptions reduce the amount of viewers
    relying on over-the-air broadcasts, (*see* Waiver Request at 11),
    the Engineering Study's predicted percentages do not discount for
    cable and satellite penetration.

[^25]: *See* Qualcomm Incorporated Petition for Declaratory Ruling, WT
    Docket No. 05-7, *Order*, 21 FCC Rcd 11683, 11686 n.25 (2006)
    (*Qualcomm*) (approving the use of "OET Bulletin No. 69,
    Longley-Rice Methodology for Evaluating TV Coverage and
    Interference," Office of Engineering and Technology, Federal
    Communications Commission (Feb. 6, 2004) (OET-69), with certain
    modifications, as an acceptable methodology for demonstrating
    whether Qualcomm's MediaFLO system complies with the Commission's
    rules on interference protection in the 700 MHz Band).

[^26]: *See* *Qualcomm*, 21 FCC Rcd at 11685 ¶ 6, 11696-11699 ¶¶ 27-32.

[^27]: *Id.* at 11697 ¶ 29 (emphasis in original).

[^28]: *Id.*

[^29]: The allowable predicted interference to a TV/DTV station's
    service caused by the MediaFLO system will increase incrementally
    each year from the release of *Qualcomm* until the end of the DTV
    transition in February 2009: 0.5 percent of the population within
    the TV/DTV station's Grade B contour for the first year, 1.0 percent
    for the second year, and 1.5 percent for the remainder of the DTV
    transition. *See Qualcomm*, 21 FCC Rcd at 11698 ¶ 30.

[^30]: Waiver Request at 11; Engineering Study at 11, 57-58 (Attachment
    4).

[^31]: Waiver Request at 11; Engineering Study at 2, 26; Second
    Engineering Supplement at 6, 8, 10.

[^32]: Waiver Request at 11; Engineering Study at 2. *See also infra*
    Appendix.

[^33]: Engineering Study at 55 (Attachment 4).

[^34]: *Id*. at 13.

[^35]: *Id*.

[^36]: The Longley-Rice radio propagation model makes "predictions of
    radio field strength at specific geographic points based on the
    elevation profile of terrain between the transmitter and each
    specific reception point." *See* OET-69 at 1.

[^37]: For co-channel stations, New York used the D/U ratios required by
    47 C.F.R. § 90.545(a)(1). For adjacent channel stations, New York
    used the D/U ratios required by FCC Office of Engineering and
    Technology Report TM87-1, Receiver Susceptibility Measurements
    Relating to Interference Between UHF Television and Land Mobile
    Radio Services, Daniel J. Stanks, dated April 1986. *See*
    Engineering Study at 15.

[^38]: Engineering Study at 22*.*

[^39]: *Id*. at 14.

[^40]: *Id*. at 20.

[^41]: *Id*. at 12.

[^42]: *Id*. at 15.

[^43]: *Id*. Monte Carlo methods are a widely used class of
    computational algorithms for simulating the behavior of various
    physical and mathematical systems. Monte Carlo simulation methods
    are stochastic, *i.e*., nondeterministic in some manner.

[^44]: *Id*. at 16, 18.

[^45]: *Id*. at 17-18.

[^46]: *See* Wireless Telecommunications Bureau Seeks Comment on Request
    for Waiver of Television Interference Rules by the State of New York
    to Implement a 700 MHz Public Safety Communications System, WT
    Docket No. 06-18, *Public Notice*, 21 FCC Rcd 336 (WTB PSCID 2006)
    (*Public Notice*). At New York's request, WTB extended the reply
    comment deadline to April 4, 2006. *See* Wireless Telecommunications
    Bureau Extends Reply Comment Deadline for Request for Waiver of
    Television Interference Rules by the State of New York to Implement
    a 700 MHz Public Safety Communications System, WT Docket No. 06-18,
    *Public Notice*, 21 FCC Rcd 3103 (WTB PSCID 2006). Pursuant to
    Commission reorganization effective September 25, 2006, the relevant
    duties of the Public Safety and Critical Infrastructure Division of
    the Wireless Telecommunication Bureau were assumed by the Policy
    Division of the Public Safety and Homeland Security Bureau. *See*
    Establishment of the Public Safety and Homeland Security Bureau,
    *Order*, 21 FCC Rcd 10867 (2006).

[^47]: Comments of the State of New York (filed Mar. 13, 2006) (New York
    Comments); Comments of the Association of Public-Safety
    Communications Officials, International, Inc. (filed Mar. 13, 2006)
    (APCO Comments); Comments of Maranatha Broadcasting Company, Inc.
    (filed Mar. 13, 2006) (Maranatha Comments); Comments of QUALCOMM
    Incorporated (filed Mar. 13, 2006) (Qualcomm Comments); Comments of
    the Region 24 700 MHz Regional Planning Committee (filed Mar. 13,
    2006) (Region 24 RPC Comments); Comments of Mountain Broadcasting
    Corporation (filed Mar. 13, 2006) (Mountain Comments); and Comments
    of WFUT-TV (filed Mar. 13, 2006) (WFUT Comments).

[^48]: Comments of the Region 39 700 MHz Regional Planning Committee
    (filed Mar. 21, 2006) (Region 39 RPC Comments).

[^49]: Reply Comments of the State of New York (filed Apr. 4, 2006) (New
    York Reply Comments); Reply Comments of M/A-COM, Inc. (filed Apr. 4,
    2006) (M/A-COM Reply Comments); Reply Comments of the National
    Public Safety Telecommunications Council (filed Mar. 28, 2006)
    (NPSTC Reply Comments); Reply Comments of QUALCOMM Incorporated
    (filed Apr. 4, 2006) (Qualcomm Reply Comments); Reply Comments of
    Mountain Broadcasting Corporation (filed Apr. 4, 2006) (Mountain
    Reply Comments); and Reply Comments of WFUT-TV (filed Apr. 4, 2006)
    (WFUT Reply Comments).

[^50]: *See* Letter from Carl W. Carlton, Director, Communications &
    Technology, New York State Police to Marlene H. Dortch, Secretary,
    Federal Communications Commission (dated June 23, 2006); Letter from
    Daniel DeFedericis, President, Police Benevolent Association of the
    New York State Troopers, Inc. to Marlene H. Dortch, Secretary,
    Federal Communications Commission (dated June 27, 2006); and Letter
    from Hanford C. Thomas, Deputy Director, New York State Office for
    Technology, to The Honorable Kevin Martin, Chairman, Federal
    Communications Commission (dated Mar. 1, 2007).

[^51]: *Public Notice* at 2; s*ee* Pleading Cycle Established for
    Qualcomm Incorporated Petition for Declaratory Ruling, WT Docket No.
    05-7, *Public Notice*, 20 FCC Rcd 1293 (WTB MD 2005).

[^52]: APCO Comments at 2; NPSTC Comments at 4, 7; Qualcomm Comments at
    1.

[^53]: Qualcomm Comments at 2.

[^54]: Maranatha Comments at 2.

[^55]: Region 24 RPC Comments at 2-3; Region 39 RPC Comments at 2-3.
    *See* 47 C.F.R. § 73.623(c).

[^56]: M/A-COM Reply Comments at 3.

[^57]: NPSTC Reply Comments at 6.

[^58]: *See* Mountain Comments at 1-5; WFUT-TV Comments at 2, 4, 6, 8.

[^59]: *See* Mountain Comments, attached Technical Statement at 3-4.

[^60]: *See* Mountain Comments at 4; WFUT-TV Comments, attached
    Engineering Statement in Support of Comments at 3-5. Further,
    Mountain and WFUT-TV argue that New York's analysis does not take
    into account interference to cable viewers through cable head-ends,
    some of which may receive WMBC-TV and WFUT-TV signals over the air.
    *See* Mountain Comments at 2, n.1; WFUT-TV Comments at 18. Mountain
    and WFUT-TV, however, do not provide evidence that any cable
    head-ends would be affected by New York's operations.

[^61]: Mountain Comments at 2; WFUT-TV Comments at 1.

[^62]: *See* Mountain Comments at 4; WFUT-TV Comments, attached
    Engineering Statement in Support of Comments at 3-5.

[^63]: WFUT-TV Comments at 19.

[^64]: *Id*.

[^65]: Qualcomm Reply Comments at 2.

[^66]: *Id*.

[^67]: *See* First Engineering Supplement.

[^68]: *Id*. at 1.

[^69]: *See* Second Engineering Supplement.

[^70]: *See* *id*. at 5, 7, 10. *See also* New York Reply Comments at
    2-3, 6.

[^71]: *See* Second Engineering Supplement at 1-2, 9.

[^72]: *See id*. at 4; New York Reply Comments at 3. *See also* WFUT-TV
    Comments, attached Engineering Statement in Support of Comments, in
    WT Docket No. 06-18 at 20.

[^73]: Second Engineering Supplement at 4.

[^74]: *Id*. at 6. The new results are based on 120 simultaneous mobile
    transmissions, while the original Engineering Study and First
    Engineering Supplement were based on 300 simultaneous mobile
    transmissions. *See* Engineering Study at 26; First Engineering
    Supplement at 2.

[^75]: *See* Second Engineering Supplement at 6; New York Reply Comments
    at 3.

[^76]: *See* New York Reply Comments at 6-7. New York states that it is
    prepared to accept a condition that it not transmit on 700 MHz
    channels from Base Station Site Number 72 without first taking field
    measurements satisfactory to Mountain to determine whether Station
    WMBC can be viewed over the air in the area surrounding the site. If
    WMBC can be viewed in this area, New York states that it would not
    initiate 700 MHz band service from Base Station Site Number 72 prior
    to February 18, 2009, absent the consent of Mountain. *Id*.

[^77]: *See* Letter from Mark B. Denbo, Counsel to Mountain Broadcasting
    Corporation, Fleischman and Harding LLP, to Ms. Marlene Dortch,
    Secretary, Federal Communications Commission (dated Dec. 14, 2007).

[^78]: *Id.*

[^79]: *See* Letter from Robert M. Gurss, Counsel for State of New York,
    Fletcher, Heald & Hildreth, P.L.C., to Ms. Marlene Dortch,
    Secretary, Federal Communications Commission (dated Dec. 17, 2007).

[^80]: *See supra* para. 13.

[^81]: *See* *Qualcomm*, 21 FCC Rcd at 11686 n.25.

[^82]: *See* 47 C.F.R. § 90.545(c)(1)(ii).

[^83]: *See* Engineering Study at 14. Multiple cells comprise the study
    area used to conduct New York's interference analysis. The study
    area encompasses all interior cells and those cells aligned along
    the Grade B contour. New York states that the TV signal level may be
    less than the Grade B threshold in some study area cells because of
    irregular terrain blockage. *Id.* at 13.

[^84]: *See* Engineering Study at 9-11, 55-66 (Attachment 4). New York
    proposes to operate a total of 99 base stations. *See* Engineering
    Study at 52-54 (Attachment 3). New York provided the number of
    noncompliant base stations that do not meet the geographic
    separation requirements of Section 90.545(c) for each affected
    TV/DTV station ("noncompliant base stations") for each affected
    TV/DTV station operating on TV channels 63, 64, and 65 as follows:
    WMBC -- 76; WNAC -- 0; WPVI -- 35; WQPX -- 61; WEDY -- 72; WUVP --
    0. *See* *id*. at 11. New York also provided the number of
    noncompliant base stations with mobiles for each TV station
    operating on TV channels 68 and 69 as follows: WFMZ -- 71; WFUT --
    99; WPXQ -- 61. *See id*. at 12.

[^85]: *See supra* note Error: Reference source not found for numbers of
    noncompliant base stations.

[^86]: *See* Aloha Partners, *Memorandum Opinion and Order*, 20 FCC Rcd
    3744 (WTB 2005) (*Aloha Partners MO&O*) (granting a conditional
    waiver of Section 27.60 to allow Aloha Partners to implement a
    wireless broadband service from seven base stations within a
    licensed service area, short-spaced to an adjacent channel TV
    station operating on Channel 58).

[^87]: *See* Access Spectrum, LLC, *Memorandum Opinion and Order*, 19
    FCC Rcd 15545 (WTB 2004) (*Access Spectrum MO&O*) (granting a
    conditional waiver of Section 27.60 to allow Access Spectrum, LLC to
    operate a trunked land mobile base station, short-spaced to an
    adjacent channel TV station operating on Channel 61).

[^88]: *See* Mountain Comments at 5.

[^89]: WFUT-TV Comments, attached Engineering Statement in Support of
    Comments at 8.

[^90]: New York Reply Comments at 7.

[^91]: WFUT-TV Comments, attached Engineering Statement in Support of
    Comments at 8.

[^92]: *Id*.

[^93]: *See* Engineering Study at 15-18.

[^94]: Second Engineering Supplement at 2-4.

[^95]: New York Reply Comments at 5.

[^96]: *Id*.

[^97]: *See* Engineering Study at 17.

[^98]: *Id*.

[^99]: *Id*.

[^100]: *Id.* at 17, 22.

[^101]: *Id*.

[^102]: *See supra* note Error: Reference source not found.

[^103]: *See* Engineering Study at 13, 24.

[^104]: *See* *supra* paras. 8-14.

[^105]: Engineering Study at 13-18, 20-21; Second Engineering Supplement
    at 1-2, 9.

[^106]: *See* Engineering Study at 3-4, 52-54 (Attachment 3), 49-51
    (Attachment 2).

[^107]: *See* Second Engineering Supplement at 1-2, 9.

[^108]: *See* Engineering Study at 55, Attachment 4.

[^109]: 47 C.F.R. § 1.925(b)(3)(i).

[^110]: 47 C.F.R. § 1.925(b)(3)(ii).

[^111]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969),
    *aff'd*, 459 F.2d 1203 (D.C. Cir. 1972), *cert. denied*, 409 U.S.
    1027 (1972) (*citing Rio Grande Family Radio Fellowship, Inc. v.
    FCC*, 406 F.2d 664 (D.C. Cir. 1968)); Birach Broadcasting
    Corporation, *Memorandum Opinion and Order*, 18 FCC Rcd 1414, 1415 ¶
    6 (2003).

[^112]: *See* *supra* para. 17; Development of Operational, Technical
    and Spectrum Requirements for Meeting Federal, State and Local
    Public Safety Agency Communications Requirements Through the Year
    2010, WT Docket No. 96-86, *First Report and Order and Third Notice
    of Proposed Rulemaking,* 14 FCC Rcd 152, 224 ¶ 158 (1998) (*Public
    Safety Service Rules Order*).

[^113]: *Public Safety Service Rules Order*, 14 FCC Rcd at 224 ¶ 158.

[^114]: *See supra* para. 19.

[^115]: *See* *infra* Appendix. *See also Qualcomm*, 21 FCC Rcd at 11698
    ¶ 30.

[^116]: *See Qualcomm*, 21 FCC Rcd at 11698 ¶ 30.

[^117]: *See* WFUT-TV Comments at 10-12.

[^118]: *See id*. at 10-11 *citing* Amendment of Parts 73 and 74 of the
    Commission's Rules for Digital Low Power Television, Television
    Translator, and Television Booster Stations and to Amend Rules for
    Digital Class A Television Stations, *Report and Order*, 19 FCC Rcd
    19331, 19367 ¶ 103 (2004).

[^119]: *See* Qualcomm Comments at 6.

[^120]: NPSTC Reply Comments at 4-5; Qualcomm Comments at 7.

[^121]: *See supra* note Error: Reference source not found. Because we
    consider each application on a case-by-case basis, however, we
    decline to specify two percent as the general *de minimis* standard
    in the land mobile-to-TV/DTV context.

[^122]: *See* 47 U.S.C. § 151.

[^123]: We note that our consideration of interference with regard to
    New York's Waiver Request does not extend or otherwise affect the
    provisions for a graduated *de minimis* interference allowance that
    we adopted in *Qualcomm*.

[^124]: *See* *Qualcomm*, 21 FCC Rcd at 11699 ¶ 32.

[^125]: *See supra* para. 3.

[^126]: *See* Waiver Request at 4-7.

[^127]: *Id*. at 5.

[^128]: *Id.* at 8-9.

[^129]: *Id.* at 8.

[^130]: *Qualcomm*, 21 FCC Rcd at 11697 ¶ 28.

[^131]: *See* *Public Notice*, 21 FCC Rcd at 337.

[^132]: Mountain Comments at 6. New York observes in its comments that
    there are numerous potential sources of interference in urban areas
    such as New York, and that addressing every viewer's complaint in
    light of this observation would be unduly burdensome. New York
    states that it is not opposed to a requirement that it make
    reasonable efforts to correct documented interference to TV or DTV
    reception clearly caused by its public safety operations. *See* New
    York Comments at 2.

[^133]: Mountain Comments at 6-7.

[^134]: *See* WFUT-TV Comments, attached Engineering Statement in
    Support of Comments at 8.

[^135]: WFUT-TV Reply Comments at 17; Mountain Comments at 6.

[^136]: For example, New York may be able to cease transmissions at a
    particular site for a short period of time (less than a day, so as
    not to unduly disrupt New York's operations) to allow the TV station
    to test whether New York is or is not the source of interference at
    a particular location.

[^137]: Mountain observes that Section 90.531(a), 47 C.F.R. § 90.531(a),
    permits mobile, portable or control station operation in the lower
    public safety band. *See* Mountain Comments, attached Technical
    Statement at 6. Since New York based its waiver request solely on
    the use of the lower band by fixed base station transmitters,
    Mountain indicates that the Commission should not permit New York to
    operate mobile, portable, or control stations in the entire 700 MHz
    lower public safety band. *Id*. We believe that this condition helps
    to ensure that the percentage of affected population receiving TV
    channels 63, 64, and 65 does not exceed the amounts New York
    predicted in its Engineering Study, as supplemented. We further
    restrict mobile, portable or control stations from operating below
    803.000 MHz to ensure that the percentage of affected population
    receiving TV channel 68 does not exceed the amounts New York
    predicted in its Engineering Study, as supplemented.

[^138]: *See* 47 C.F.R. §§ 1.929, 1.947.

[^139]: New York states that it is prepared to accept a special
    condition for site #72. *See* New York Reply Comments at 6-7.

[^140]: 47 C.F.R. § 73.686.

[^141]: New York agrees to this condition as a control measure. *See*
    Engineering Study at 4-5.

[^142]: Engineering Study at 2, 26, Second Engineering Supplement at 6,
    8, 10.

[^143]: New York's revised analysis reflects 120 simultaneous mobile
    transmission as the worst case rather than 300 transmissions because
    under the revised analysis, New York assumes that its initial
    deployment prior to February 17, 2009 will be limited. Specifically,
    New York anticipates that actual use will be concentrated along
    transportation corridors. *See* New York Reply Comments at 3-4.