**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FCC File No. 0002112329      |
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| COMMONWEALTH OF PENNSYLVANIA     | ** |                              |
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| Request for Waiver of Sections   | *  |                              |
| 90.247(a) and (c) and 90.613 of  | *) |                              |
| the Commission's Rules           | ** |                              |
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**ORDER**

**Adopted: January 30, 2007 Released: January 31, 2007**

By the Deputy Chief, Policy Division, Public Safety and Homeland
Security Bureau:

# Introduction 

1.  We have before us an application and associated waiver request filed
    by the Commonwealth of Pennsylvania (Pennsylvania).[^1] Pennsylvania
    seeks a waiver of Sections 90.247(a) and (c) and 90.613 of the
    Commission\'s rules[^2] to allow vehicular repeater stations to
    operate on certain base station frequencies in the 800 MHz band and
    to allow associated hand-held units to exceed an output power of 2.5
    watts.[^3] For the reasons discussed herein, we grant
    Pennsylvania\'s waiver request.

# Background 

2.  Pennsylvania encompasses a geographic area of approximately 44,817
    square miles and has a population of approximately 12.3 million
    persons. In order to provide public safety services, Pennsylvania
    states that it is developing a statewide public safety radio system
    associated with its homeland security efforts.[^4] The system is
    expected to consist of 500 station sites operating on 800 MHz public
    safety channels.[^5] Pennsylvania notes that it has completed an
    extensive search of the 800 MHz Band and identified ten channel
    pairs[^6] that it states can be used in conjunction with this radio
    system.[^7] Although Pennsylvania states that it already has
    constructed over 200 radio towers, it asserts that there is an
    immediate need for portable coverage that can only be accomplished
    via use of vehicular repeaters at various locations within its
    geographic borders.[^8]

3.  On April 4, 2005, Pennsylvania filed an application and associated
    waiver request, seeking to license a mobile-only radio system in the
    806-816 MHz/851-861 MHz portion of the 800 MHz band.[^9] Subsequent
    to filing its application, Pennsylvania filed its initial request
    for Special Temporary Authority (STA) to operate a vehicular mobile
    radio repeater system.[^10] We granted the STA on July 5, 2005,
    which has been renewed and remains in effect.[^11] On July 29, 2005,
    Pennsylvania amended its application with supplemental
    documentation.[^12] On March 24, 2006, and December 14, 2006,
    Pennsylvania again amended its application with supplemental
    information relating to its Waiver Request.[^13]

4.  In its application, Pennsylvania states that its vehicular repeaters
    have the capability to operate as a local repeater base station when
    its portable units travel outside the communication range of the
    statewide network.[^14] Specifically, it indicates that its portable
    units communicate directly to the fixed base stations in its
    statewide network when the portable unit receives a locking signal
    from a base station.[^15] When the portable units travel outside the
    communication range of the network's base stations, however, the
    portable units will seek to communicate directly to the mobile radio
    repeater.[^16] In this mode, the mobile radio repeater acts as a
    base station repeater.[^17] Pennsylvania indicates that when its
    vehicular repeaters operate as a base station repeater, they require
    a degree of separation between the receive- and transmit-
    frequencies, in order to enable duplex operation.[^18] Thus, in this
    mode of operation, the portable unit will transmit on the mobile
    radio side of the frequency pair (806-816 MHz), while the mobile
    radio repeater station will transmit on the base station side of the
    frequency pair (851-861 MHz).[^19] Pennsylvania asserts that its
    vehicular repeater stations cannot function as base station
    repeaters if the transmit and receive frequencies are limited to the
    mobile radio side of the frequency pair (806-816 MHz).[^20]

5.  Consequently, Pennsylvania seeks a waiver of Sections 90.247(a)
    and (c) and 90.613, in order to allow its vehicular repeater
    stations to transmit on frequencies normally assigned to base
    stations in the 851-860 MHz portion of the band.[^21] Section
    90.247(a) limits the transmit frequencies of mobile repeater
    stations to the mobile side of the base/mobile frequency pair
    (806-816 MHz).[^22] Section 90.613 establishes that only fixed base
    stations may transmit in the 851-860 MHz portion of the band.[^23]
    Because Pennsylvania also seeks to operate its portable radios
    associated with the vehicular repeaters at approximately 3 watts of
    output power,[^24] Pennsylvania seeks a waiver of Section 90.247(c)
    to enable communications from hand-held units to be relayed
    automatically through the vehicular repeater stations.[^25] Section
    90.247(c) limits the output power of hand-held units which transmit
    through a mobile radio repeater to 2.5 watts.[^26]

# Discussion 

6.  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;[^27] 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, or the applicant has no reasonable alternative.[^28] An
    applicant seeking a waiver faces a high hurdle and must plead with
    particularity the facts and circumstances that warrant a
    waiver.[^29] We conclude that Pennsylvania has shown that its
    request should be granted under the first prong of the waiver
    standard.

7.  The underlying purpose of both Sections 90.247 and 90.613 is to
    promote spectrum efficiency by reducing the possibility of harmful
    interference between licensed land mobile radio stations.[^30] For
    instance, the Commission generally designs land mobile radio band
    plans so that the base station transmit frequencies are spectrally
    separate from the mobile radio station transmit frequencies.[^31] In
    this regard, Section 90.613 requires base stations in the 800 MHz
    band to transmit in the 851-869 MHz band, while corresponding mobile
    radio stations must transmit on frequencies forty-five megahertz
    lower in frequency.[^32] Similarly, Section 90.247(a) limits the
    transmission of mobile radio repeater stations to the mobile radio
    side of the base/mobile radio frequency pair (806-816 MHz).[^33] The
    Commission's rules recognize that if a mobile radio station is
    assigned to a frequency that would normally be assigned to a base
    station, the mobile radio station may be subject to interference
    that would otherwise not occur.[^34] It also follows that if a
    mobile radio station transmits on a frequency normally assigned to a
    base station, the mobile radio station could create interference to
    other mobile radio units that are monitoring the base station
    transmit frequency.

8.  Here, Pennsylvania seeks to license mobile radio repeater stations
    on base station transmit frequencies in order to allow the mobile
    radio vehicular units to operate as base station repeaters when the
    portable units travel outside the communication range of the
    statewide network.[^35] Pennsylvania indicates that the mobile radio
    repeater stations are programmed to lock out specific channels if
    the units travel to locations where they might cause co-channel
    interference to existing base station operations.[^36] Once a
    channel is deemed to be available, Pennsylvania states that the
    mobile radio repeater continuously will monitor the channel in use
    and switch to an alternate channel if other station traffic is
    detected.[^37] Thus, Pennsylvania claims that these advanced
    features offer interference protection to existing co-channel
    operations.[^38]

9.  Our engineering staff has reviewed the technical data filed by
    Pennsylvania and confirmed Pennsylvania's claim that sufficient
    co-channel interference protection will be offered to existing
    users.[^39] Specifically, a review of the frequency study filed by
    Pennsylvania indicates that the mobile radio repeater stations would
    exclude the base station frequency of any co-channel licensee if the
    mobile radio repeater enters the county in which that co-channel
    user operates.[^40] Under the circumstances presented, we find that
    granting a waiver of Sections 90.247(a) and 90.613 would not
    frustrate the underlying purpose of these rules because
    Pennsylvania's use of mobile radio repeater stations to transmit on
    base station frequencies would not have an adverse impact on
    spectrum efficiency by creating harmful interference to other users.

10. Moreover, we note that the public interest will be served by grant
    of a waiver of Sections 90.247(a) and 90.613 because it will allow
    Pennsylvania to operate a more flexible public safety communications
    system -- an improvement that will enhance the safety of
    Pennsylvania's citizens and their property. To ensure that our
    decision neither deters existing users from expanding their systems
    or new licensees from beginning operations on these frequencies
    after Pennsylvania has placed its mobile radio repeater units into
    operation, we grant Pennsylvania's request for a waiver of Sections
    90.247(a) and 90.613 on the condition that Pennsylvania may operate
    its mobile radio repeater stations only on a secondary basis, *i.e.*
    they may not cause harmful interference to primary operations, and
    must accept interference from primary operations.

11. Pennsylvania also seeks a waiver of the 2.5 watt power limitation in
    Section 90.247(c) because its hand-held units would operate with a
    maximum output power of 3 watts when communicating via mobile radio
    repeater stations.[^41] In evaluating Pennsylvania's request, we
    note that operation of the handsets at 3 watts is consistent with
    the devices' certification by the Commission.[^42] Furthermore, our
    evaluation of the operational parameters of the handheld units
    indicates that the increased potential for interference between
    Pennsylvania's handheld units operating at 3 watts versus 2.5 watts
    (0.8 dB) is *de minimis* in the context of this particular system.
    In consideration of the increase in the operational performance
    contemplated here and the advanced features of Pennsylvania's system
    to limit harmful co-channel interference we believe that the
    underlying purpose of the power limit in Section 90.247(c) would not
    be frustrated by waiving Section 90.247(c) in this instance. We also
    believe that a grant of the waiver request would serve the public
    interest for the same reasons noted above: it will allow
    Pennsylvania to implement a communications system that will enhance
    the safety of Pennsylvania's citizens and their property.

# CONCLUSION

12. Based on the information before us, we find that Pennsylvania has
    satisfied the Commission's waiver criteria in support of its request
    for a waiver of Sections 90.247(a) and (c) and 90.613, of the
    Commission's rules to operate vehicular repeater stations on base
    station frequencies in the 851-861 MHz portion of the 800 MHz band
    and to operate hand-held units with a maximum output power of 3
    watts when operating through mobile repeaters.

# ordering clauses

13. Accordingly, IT IS ORDERED, 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, that the
    Waiver Request filed by the Commonwealth of Pennsylvania with
    respect to application FCC File No. 0002112329 IS GRANTED SUBJECT TO
    THE CONDITION that operation of mobile radio repeaters is authorized
    only on a secondary basis.

14. IT IS FURTHER ORDERED that application FCC File No. 0002112329 SHALL
    BE PROCESSED in accordance with this *Order* and the Commission's
    rules.

15. This action is taken under delegated authority pursuant to Sections
    0.191 and 0.392 of the Commission's rules, 47 C.F.R. §§ 0.191,
    0.392.

FEDERAL COMMUNICATIONS COMMISSION

Michael J. Wilhelm

Deputy Chief, Policy Division

Public Safety and Homeland Security Bureau

[^1]: FCC File No. 0002112329 and accompanying waiver request (filed
    Apr. 4, 2005; amended Jun. 9, 2005, Jul. 29, 2005, Jan. 3, 2006,
    Mar. 24, 2006, and Dec. 14, 2006) (Waiver Request).

[^2]: 47 C.F.R. §§ 90.247(a), 90.247(c), 90.613.

[^3]: *See* FCC File No. 0002112329 and Waiver Request. Pennsylvania
    also requests a waiver of Section 90.621 of the Commission's Rules,
    47 C.F.R. § 90.621. *See* Waiver Request at 1. Pennsylvania does not
    explain why it requires a a waiver of this rule, and it is not
    apparent to us that it is required. . We therefore do not consider
    Section 90.621 in this Order.

[^4]: *See* "Amendment attachment, including a Request for Waiver and
    Technical Showing, Associated with Vehicular Tactical Repeater
    (VTAC) Network, New FCC License Application File Number 0002112329"
    (filed Mar. 24, 2006) (Waiver Request Amendment).

[^5]: *Id.*

[^6]: Specific frequencies requested for station class MO and MO3 are
    856.2125 MHz, 856.4875 MHz, 857.2125 MHz, 857.4625 MHz, 857.4875
    MHz, 858.4875 MHz, 858.7625 MHz, 859.4875 MHz, 860.4625 MHz, and
    860.7625 MHz. Frequencies requested for station class MO are
    811.2125 MHz, 811.4875 MHz, 812.2125 MHz, 812.4625 MHz, 812.4875
    MHz, 813.4875 MHz, 813.7625 MHz, 814.4875 MHz, 815.4625 MHz, and
    815.7625 MHz. We note that these frequencies are in the interleaved
    portion of the 800 MHz band and are not subject to rebanding under
    the Commission\'s 800 MHz band reconfiguration plan

[^7]: Waiver Request at 1.

[^8]: *See* March 24, 2006 Waiver Request Amendment at 1.

[^9]: *See* FCC File No. 0002112329 (filed Apr. 4, 2005) (inactive).

[^10]: *See* FCC File No. 0002194028 (filed Jun. 9, 2005).

[^11]: *Id*. Pennsylvania applied for, and was granted, its first
    renewal of the STA on October 17, 2005. *See* FCC File No.
    0002348408. Pennsylvania applied for, and was granted, its second
    renewal of the STA on April 7, 2006. *See* FCC File No. 0002559310.
    Pennsylvania applied for, and was granted, its third renewal of the
    STA on October 2, 2006. *See* FCC File No. 0002769446.

[^12]: *See* FCC File No. 0002112329 (amended Jul. 29, 2005) (inactive).

[^13]: *See* FCC File No. 0002112329 (amended Mar. 24, 2006) (inactive);
    "Amendment attachment, supplemental VTAC network operational
    explanation" associated with FCC File No. 0002112329 (amended Dec.
    14, 2006) (Dec. 14, 2006 Waiver Request Amendment).

[^14]: *See id*.

[^15]: *Id.*

[^16]: *Id.*

[^17]: *Id.*

[^18]: *See* FCC File No. 0002112329 (Jan. 3, 2006 Waiver Request
    Amendment) at 2.

[^19]: *See* Dec. 14, 2006 Waiver Request Amendment. Pennsylvania also
    requests "talk-around" capability for its portable units by seeking
    to license the portable units on the output frequencies of its
    vehicular repeater stations. This would permit the portable units to
    communicate without using a fixed base station or a vehicular
    repeater. *Id.*

[^20]: *See* Jan. 3, 2006 Waiver Request Amendment at 2.

[^21]: *Id*. at 1.

[^22]: *See* 47 C.F.R. § 90.247 ("A mobile station authorized to operate
    on a mobile service frequency above 25 MHz may be used as a mobile
    repeater to extend the communications range of hand-carried
    units.").

[^23]: *See* 47 C.F.R. § 90.613. *See also* Inquiry Relative to the
    Future Use of the Frequency Band 806-960 MHz and Amendment of Parts
    2, 18, 21, 73, 74, 89, 91, and 93 of the Rules Relative to
    Operations in the Land Mobile Service Between 806 and 960 MHz,
    Docket No. 18262, *Second Report and Order*, 46 F.C.C. 2d 752, 769 ¶
    61 (1974) (*Land Mobile Second Report and Order*).

[^24]: Mar. 24, 2006 Waiver Request Amendment at 1.

[^25]: *Id.*

[^26]: *See* 47 C.F.R. § 90.247(c).

[^27]: 47 C.F.R. § 1.925(b)(3)(i).

[^28]: 47 C.F.R. § 1.925(b)(3)(ii).

[^29]: *WAIT Radio v. FCC,* 413 F.2d 1153, 1157 (D.C. Cir. 1969) (*WAIT
    Radio*), *aff'd,* 459 F.2d 1203 (1973), *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 Broad. Corp.,
    *Memorandum Opinion and Order,* 18 FCC Rcd 1414, 1415 (2003).

[^30]: *See Land Mobile Second Report and Order*, 46 F.C.C. 2d at 770 ¶
    71.

[^31]: *See* 47 C.F.R. § 90.173(i); *Land Mobile Second Report and
    Order*, 46 F.C.C. 2d at 769 ¶ 61.

[^32]: 47 C.F.R. § 90.613; *Land Mobile Second Report and Order*, 46
    F.C.C. 2d at 769 ¶ 61.

[^33]: 47 C.F.R. § 90.247(a).

[^34]: *See* 47 C.F.R. § 90.173(i).

[^35]: *See* Dec. 14, 2006 Waiver Request Amendment.

[^36]: Waiver Request at 1-2.

[^37]: *Id*. at 2.

[^38]: *Id*.

[^39]: *Id.* at 1.

[^40]: *See* frequency search attachments and VTAC Matrix accompanying
    Waiver Request.

[^41]: *See* Mar. 24, 2006 Waiver Request Amendment at 1.

[^42]: *See* equipment authorization BV8M803VTAC.