**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

COUNTY OF SAN MATEO, CALIFORNIA ) File No. 0000013680

)

Application and Waiver Request Under )

Section 337(c) for Use of Certain Public )

Land Mobile Service Channels )

**MEMORANDUM OPINION AND ORDER**

**Adopted:** November 10, 1999 **Released:** November 12, 1999

By the Deputy Chief, Wireless Telecommunications Bureau:

**I. INTRODUCTION AND EXECUTIVE SUMMARY**

1\. Before us for consideration is a request by the County of San Mateo,
California (\"San Mateo\" or \"the County\") to waive certain of the
Commission\'s Part 22 and Part 90 Rules[^1] in order to use twenty
currently unassigned Part 22 Public Land Mobile Services (PLMS) paging
control frequencies in the 470-512 MHz band in a public safety
communications system.[^2] San Mateo seeks to provide enhanced and
additional public safety services. In its Waiver Request, San Mateo
asserts that its associated license application should be granted
because it has satisfied the waiver criteria specified by Section 337(c)
of the Communications Act of 1934, as amended (\"the Act\").[^3]

2\. After considering the arguments and evidence presented by San Mateo
and the various commenting parties, we find that the County has properly
invoked the provisions of Section 337(c) of the Act and that it has met
the statutory criteria for granting a waiver of the Commission\'s Rules
under Section 337(c). Specifically, we find that: (a) no spectrum other
than the Part 22 PLMS frequencies at issue is immediately available to
satisfy the County\'s requested public safety service use; (b) the
requested use will not cause harmful interference to other spectrum
users; (c) the proposed use is consistent with other public safety
allocations in the San Francisco Bay Area (\"the Bay Area\"); (d) the
frequencies in question were allocated for their present Part 22 use not
less than two years before this grant of the County\'s application under
Section 337(c); and (e) granting San Mateo\'s application is consistent
with the public interest. With particular regard for the public
interest, we find that San Mateo\'s public safety needs are critical,
that the County has an immediate need for additional frequencies for its
public safety mobile communications system in order to address
potentially dangerous situations, and that obtaining frequencies within
the 470-512 MHz band would promote the achievement of interoperability.
Therefore, we grant San Mateo\'s Waiver Request and the associated
license application pursuant to Section 337(c) of the Act.

**II. BACKGROUND**

3\. On August 5, 1997, Congress enacted the Balanced Budget Act of
1997.[^4] Section 3004 of the Balanced Budget Act amended the
Communications Act to add Section 337.[^5] Subsection (c) of Section 337
provides as follows:

\(c\) Licensing of Unused Frequencies for Public Safety Services.‑‑

\(1\) Use of unused channels for public safety services.‑‑Upon

application by an entity seeking to provide public safety services, the

Commission shall 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 by such entity.

An application shall be granted under this subsection if the Commission

finds that‑‑

\(A\) no other spectrum allocated to public safety services is

immediately available to satisfy the requested public safety service

use;

\(B\) the requested use is technically feasible without causing

harmful interference to other spectrum users entitled to protection

from such interference under the Commission\'s regulations;

\(C\) the use of the unassigned frequency for the provision of

public safety services is consistent with other allocations for the

provision of such services in the geographic area for which the

application is made;

\(D\) the unassigned frequency was allocated for its present use

not less than two years prior to the date on which the application is

granted; and

\(E\) granting such application is consistent with the public

interest.

\(2\) Applicability.‑‑Paragraph (1) shall apply to any application to
provide

public safety services that is pending or filed on or after the date of

enactment of the Balanced Budget Act of 1997.[^6]

4\. On January 28, 1999, San Mateo filed its license application and
Waiver Request. San Mateo requests a waiver, pursuant to Section 337(c)
of the Act, of any and all Commission Rules necessary to grant its
applications.[^7] As a result of a grant of the requested waiver, the
County would be able to use thirty-one frequencies for public safety
purposes that are presently allocated for point-to-multipoint paging
control operations in the Bay Area. San Mateo states that these
frequencies are currently unassigned, and it proposes to utilize this
spectrum in the form of thirteen narrowband (that is, 12.5 kHz
bandwidth) channel pairs.

5\. San Mateo asserts that the subject spectrum will be used to provide
\"public safety services\" as defined by Section 337(f)(1) of the Act,
because it is a local governmental entity proposing a trunked system to
serve its Sheriff\'s Department, Park Police, Emergency Medical Services
Department, and perhaps other public safety agencies within the county.
San Mateo states that the public safety services at issue will not be
made commercially available to the public by the County, and that its
application meets the other requirements of Section 337(c) of the Act in
the following particulars: (a) no existing, suitable frequencies
allocated to public safety are available to satisfy the requested public
safety service use; (b) no harmful interference to other Commission
licensees will occur, and the County\'s proposed channel plan will avoid
any potential for harmful interference; (c) use of the subject
frequencies for public safety services is consistent with other
allocations for the provision of such services in the geographic area
for which the application is made because the band in which the County
has requested frequencies is extensively used for public safety
operations in the Bay Area; (d) the Commission allocated the subject
frequencies for paging control operations over five years prior to the
date of the filing of the Request; and (e) the public interest will be
served because the proposed system will allow the County to provide
effective and efficient communications capability for its public safety
communications operations whereas absent a waiver, the County will
continue to face severe limitations in its ability to protect the safety
of life, health and property.

6\. On March 18, 1999, Wireless Telecommunications Bureau (Bureau)
sought comment on San Mateo\'s Waiver Request.[^8] The Bureau received
comments from four parties.[^9] Two parties filed reply comments.[^10]
Notably, no commenting party questioned the legitimacy of the County\'s
public safety needs.

7\. On May 12, 1999, the County filed a Supplement to its Waiver Request
in which it clarified certain issues and provided additional information
in response to commenting parties. San Mateo now seeks twenty wideband
frequencies, thus leaving eleven frequencies in the Bay Area unassigned
for paging control operations. From those twenty frequencies, San Mateo
would create twenty-six narrowband (12.5 kHz) channels, or thirteen
channel pairs, using narrowband offsets.[^11] Upon grant of its waiver
request and the construction of its proposed trunked system, San Mateo
will relinquish VHF channels at 45.66 and 151.475 MHz, and UHF channels
482/485.5625 and 484/487.4875 MHz.[^12]

8\. San Mateo reports that its current communications system presents a
number of critical service and technical problems.[^13] In this
connection it contends that a lack of additional capacity has created
serious dangers. For example, County Sheriff\'s deputies often must stop
vehicles and take other field actions without first reporting their
locations and proposed actions, due to channel congestion.[^14] The
County avers that this manner of operation is contrary to standard law
enforcement practices, and places the deputies at serious risk.[^15] The
County states that this channel congestion occurs because there are many
users on the Sheriff\'s channel, including the Harbor Master, search and
rescue operations, and certain building security and transportation
personnel.[^16] Further, investigators from the County Coroner\'s and
District Attorney\'s offices share the radio system, but must minimize
their communications in order to avoid interference with police dispatch
operations.[^17] San Mateo contends that it cannot implement mobile data
capability, which severely limits or prohibits the ability of its law
enforcement officers to obtain critical information about outstanding
warrants, vehicle licenses and registration during vehicle stops.[^18]
The County also notes that its Park Police cannot communicate
vehicle-to-vehicle over wide areas, thus necessitating third party
relays which cause a delay in receiving communications.[^19] The
County\'s system is more than twenty years old, and there have been
frequent outages, including a transmitter outage of five weeks, and the
failure of an oscillator on the primary channel, which curtailed the
County\'s coverage for several weeks until a new oscillator could be
delivered and installed.[^20]

**III. DISCUSSION**

9\. In considering requests under Section 337(c) of the Act, initially
we must determine whether Section 337(c) has been properly invoked.[^21]
The Commission is required to take action under this section \"upon
application by an entity seeking to provide public safety
services.\"[^22] We conclude first that San Mateo is an eligible
\"entity seeking to provide public safety services.\"[^23] As to the
threshold inquiry of eligibility to invoke Section 337(c) of the Act,
San Mateo asserts that it seeks the use of the subject PLMS frequencies
in order to operate a public safety communications system for dispatch
and tactical operations for its sheriff\'s department, which would also
permit interoperability with public safety agencies in neighboring
jurisdictions. Based upon the record before us, we find that (a) San
Mateo is a governmental entity, and (b) the purpose underlying San
Mateo\'s request is for the provision of public safety services as
defined in Section 337(f) of the Act. Thus, we conclude that the County
has met the threshold requirement.

10\. We now turn to whether or not San Mateo meets the statutory
criteria for grant of a waiver under Section 337(c)(1) of the Act. The
County contends that the five criteria set forth in Section 337(c)(1)
are satisfied and therefore that the statute compels the grant of its
application. The statutory criteria indicate that Section 337(c)
requires that a public safety applicant request specific unassigned
spectrum. Then, after analysis and consideration of those criteria, we
may either disapprove the request or assign the specifically requested
spectrum to the applicant. The plain language of subsection (c) provides
that grant of a waiver request under this statute is required only upon
a finding that all five conditions are met regarding the spectrum
specifically sought by an applicant.[^24] As discussed *infra*, we find
that all five criteria required by Section 337(c)(1) are met with
respect to San Mateo\'s waiver request for the thirty-one unassigned
paging control frequencies in the 470-512 MHz band. For these reasons,
we grant the County\'s request under Section 337(c) of the Act.

11\. *No other spectrum allocated to public safety services is
immediately available to satisfy the requested public safety service
use.* In this case, San Mateo has submitted a study prepared by a
consulting engineer showing that all Part 90 frequencies in the Bay Area
are licensed, occupied or otherwise unavailable to the County.[^25] In
addition, San Mateo submitted a letter from the local frequency
coordinator certifying that there are currently no UHF, VHF or 800 MHz
channels available in the area that could be assigned for the County\'s
use in constructing a modern, interoperable public safety communications
system.[^26] Based on our analysis of the information submitted in the
Waiver Request and supported by commenting parties, we conclude that San
Mateo has shown that no other public safety spectrum is immediately
available in the Bay Area.

12\. *The requested use is technically feasible without causing harmful
interference to other spectrum users entitled to protection from such
interference under the Commission\'s regulations*. We note that the
requested frequencies are immediately adjacent to frequencies used by
other public safety entities in the Bay Area. In addition, San Mateo
coordinated the use of these frequencies with the local frequency
coordinator for public safety.[^27] We conclude, therefore, that the
County has made a sufficient showing that the use of the frequencies in
question is technically feasible and would not interfere with existing
licensees.

13\. *The use of the unassigned frequencies for the provision of public
safety services is consistent with other allocations for the provision
of such services in the geographic area for which the application is
made*. San Mateo contends that the 470-512 MHz band is generally used by
public safety entities in the Bay Area.[^28] We agree that, in the Bay
Area public safety entities have come to rely upon the 470-512 MHz band
to meet their radio communications requirements. The Commission\'s prior
actions in the Los Angeles, California area, establishing this frequency
band as a primary public safety band,[^29] made the further use of the
470-512 MHz frequency band a potential component in attaining public
safety interoperability in this area. We nonetheless concur with PSI
that the status of public safety spectrum allocations in the 470-512 MHz
frequency band in the Bay Area is not nearly as well-established as the
situation in the Los Angeles, California area.[^30] However, we are not
persuaded by PSI\'s contentions that San Mateo\'s proposed use of the
requested frequencies would be inconsistent with other public safety
spectrum allocations in the Bay Area when the assignment of allocation
of the 470-512 MHz band is considered as a whole.[^31] Considering the
public safety use of the 470-512 frequency band as a whole, we conclude
that San Mateo\'s use of the requested frequencies would be consistent
with the Commission\'s prior general public safety allocations and
assignments in the Bay Area.

14\. *The unassigned frequencies were allocated for their present use
not less than two years prior to the date on which the application will
be granted*. The Commission allocated the requested frequencies for Part
22 point-to-multipoint control channel use on August 2, 1994.[^32] This
allocation became effective on January 1, 1995. Thus, the requested
frequencies were allocated for their present use more than two years
ago.

15\. *Granting the application is consistent with the public interest*.
Based on the record, we conclude that San Mateo has a critical,
immediate and need for additional spectrum capacity for public safety
communications. As discussed earlier, the 470-512 MHz band currently
supports a significant portion of the public safety communications in
the Bay Area. We also believe that denial of San Mateo\'s Waiver Request
and failure to provide some alternative in this frequency band would
deny the County any realistic near-term opportunity to improve its
public safety communications system, an endeavor which we continue to
believe greatly furthers the public interest. In addition, a grant of
the Waiver Request would not appear to harm the continued development of
commercial paging services in the Bay Area. Of the forty-eight PLMS
frequencies allocated for paging control in the Bay Area,[^33] only
seventeen have been assigned to paging operators; thirty-one frequencies
remain unassigned, and if San Mateo\'s request is granted, there still
would be eleven control frequencies remaining.[^34] Having balanced the
competing interests of the County and paging operators with respect to
the protection of life and property in the community, we find that San
Mateo has adequately demonstrated that the grant of its Waiver Request
and associated license application is consistent with the public
interest. Accordingly, we grant San Mateo\'s Waiver Request and license
application pursuant to Section 337(c) of the Act.[^35]

**IV. CONCLUSION**

16\. For the foregoing reasons, we conclude that San Mateo\'s Waiver
Request satisfies the criteria under Section 337(c) of the Act to obtain
a grant of its application for Part 22 PLMS paging control frequencies.
Therefore, we grant the County\'s Request for Waiver and its associated
license application as amended by the May 12, 1999 Supplement, and
permit it to use the subject frequencies for the provision of public
safety services. Because we grant the request, the petition for
reconsideration of the Bureau\'s rescission of the County\'s license for
483/486.4875 MHz and 489/492.4875 MHz is moot. Therefore, we dismiss the
County\'s petition for reconsideration.

**V. ORDERING CLAUSES**

17\. Accordingly, **IT IS ORDERED** that, pursuant to Sections 4(i) and
337(c) of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i) 337(c), the Request for Waiver and associated license application
filed by the County of San Mateo, California, on January 28, 1999, as
amended by the Supplement to Request for Waiver filed on May 12, 1999,
**ARE GRANTED**.

18\. **IT IS FURTHER ORDERED** that the Petition for Reconsideration of
the Bureau\'s rescission of the County\'s license for 483/486.4875 MHz
and 489/492.4875 MHz, filed by the County on May 26, 1998, is moot and
therefore **IS DISMISSED**.

19\. This action is taken pursuant to Sections 0.131 and 0.331 of the
Commission\'s Rules, 47 C.F.R. §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION

Kathleen O\'Brien Ham

Deputy Chief, Wireless Telecommunications Bureau

[^1]:   Specifically, San Mateo has requested waiver of 47 C.F.R. §§
    22.621 (specific 470-512 MHz frequencies allocated for Part 22
    point-to-multipoint control in San Francisco and certain other urban
    areas), 22.501 (frequencies generally allocated for Part 22 use in
    urban areas), 90.303 (470-512 MHz frequencies generally allocated
    for Part 90 use in urban areas), \"and such other of \[the
    Commission\'s\] rules as may be necessary. . . .\" County of San
    Mateo, California, Request for Waiver (\"San Mateo Waiver Request\")
    at 1.

[^2]:   The specific frequencies that San Mateo proposes to use consist
    of thirteen 12.5 kHz channel pairings: 482/485.0125, 482/485.0625,
    482/485.2125, 488/491.0125, 488/491.0875, 488/491.1375,
    488/491.2125, 488/491.2250 (new frequency created through
    narrowbanding), 488/491.2375, 488/491.2500 (new narrowband
    frequency), 488/491.2625, 488/491.2750 (new narrowband frequency),
    and 488/491.2875 MHz. County of San Mateo, California Supplement to
    Request for Waiver (\"San Mateo Supplement\"), filed May 12, 1999,
    Table A4 (revised).

[^3]:   *See* 47 U.S.C. § 337(c); *see also* Balanced Budget Act of
    1997, Pub. L. No. 105-33, 111 Stat. 251 (1997), § 3004 (\"Balanced
    Budget Act\").

[^4]:  Balanced Budget Act, *supra*.

[^5]:   *Id*.

[^6]:   47 U.S.C. § 337(c).

[^7]:   Prior to this request, the County sought a modification of its
    Public Safety Land Mobile Station WIG278 to add two channels,
    namely, 483/486.4875 MHz and 489/492.4875 MHz. The Public Safety and
    Private Wireless Division of the Wireless Telecommunications Bureau
    granted San Mateo\'s application. However, on April 24, 1998, the
    Division rescinded the modification on grounds of administrative
    error. *See* Letter from Michael Regiec to Steve Dupre
    (PS&PWD/LTAB-617). In response, the County filed Petition for
    Reconsideration in the Matter of Applications to Modify Public
    Safety Land Mobile Station WIG278 on May 26, 1998. The construction
    of San Mateo\'s newly proposed system, however, would obviate the
    need for those channels. *See* San Mateo Waiver Request at 5-6.

[^8]:   Wireless Telecommunications Bureau Seeks Comment on Request for
    Waiver by San Mateo County, California, to Obtain a License for
    Thirty-One Frequencies Allocated for Paging Control Operations,
    *Public Notice*, DA 99-537 (released Mar. 18, 1999); *see also* 64
    Fed. Reg. 14915 (1999).

[^9]:   Comments were filed by the Association of Public-Safety
    Communications Officials-International, Inc. (APCO), the Northern
    California Chapter of APCO, Paging Systems, Inc. (PSI), and Joyce &
    Jacobs, Attorneys at Law, L.L.P. (J&J) on behalf of approximately 30
    unnamed client paging operators.

[^10]: Reply comments were filed by San Mateo and Champion Communication
    Services, Inc.

[^11]:   Supplement at 1, and attached Clarifications and Supplemental
    Information to Attachment A of San Mateo County\'s Request for
    Waiver (\"Attachment\").

[^12]:   *Id*. at 2. San Mateo acknowledges that the two UHF channels
    are co-licensed to nearby municipalities and are currently used on a
    very limited basis by the County.

[^13]: *See* San Mateo Waiver Request at 3-5.

[^14]: *Id*.

[^15]: *Id*.

[^16]: *Id*. at 3.

[^17]: *Id*.

[^18]:   *Id*. at 4.

[^19]:   *Id*. at 2-3.

[^20]:   *Id*. at 3-4.

[^21]: License Communications Services, Inc., South Bay Regional Public
    Communications Authority, and Paging Systems, Inc., *Memorandum
    Opinion and Order*, 13 FCC Rcd 23781, 23795 ¶ 31 (1998) (*South
    Bay*).

[^22]:   47 U.S.C. § 337(c)(1); *see also South Bay*, 13 FCC Rcd at
    23795 ¶ 31.

[^23]:   Section 337(f) defines the term \"public safety services\" as
    services \--

    \(A\) the sole or principal purpose of which is to protect the
    safety of life, health, or property;

    \(B\) that are provided ‑‑

    \(i\) by State or local government entities; or

    \(ii\) by nongovernmental organizations that are authorized by

    a governmental entity whose primary mission is the provision of

    such services; and

    \(C\) that are not made commercially available to the public by

    the provider.

[^24]: *See* 47 U.S.C. § 337(c)(1).

[^25]:   San Mateo Waiver Request, Attachment A, at para. 3.1 and
    appendices.

[^26]:   *See* San Mateo Waiver Request at para 3.1, and Attachment A,
    Appendix A4 (Memorandum from Art McDole, APCO Local Frequency
    Advisor for Northern California, dated Dec. 22, 1998); *and*
    Northern California Chapter of APCO Comments.

[^27]:   San Mateo Waiver Request, Attachment A, at para. 3.2.

[^28]:   San Mateo Waiver Request, Attachment A, at para. 3.3 and
    appendices.

[^29]:   *See also* *South Bay*, 13 FCC Rcd at 23797 ¶ 36.

[^30]: PSI Comments at 4-5.

[^31]:   *Cf.* Northern California Chapter of APCO Comments.

[^32]:   Revision of Part 22 of the Commission\'s Rules Governing the
    Public Mobile Services, CC Docket No. 92-115, *Report and Order*, 9
    FCC Rcd 6513, 6635 (1994).

[^33]:   *See* 47 C.F.R. § 22.621.

[^34]:   San Mateo Supplement, Attachment at 3. In addition, we note
    that other spectrum is allocated for paging control use. *See* 47
    C.F.R. § 22.621.

[^35]: The Bureau\'s Public Safety and Private Wireless Division and
    Commercial Wireless Division have carefully coordinated the
    technical aspects of the grant of this waiver in order to protect
    both the County and current and future paging control systems. For
    example, San Mateo\'s use of the subject frequencies shall include a
    70-mile separation standard, *i.e.*, 35-mile noninterference
    contours. Based on the technical parameters of San Mateo\'s system,
    this should provide the County\'s public safety communications with
    ample protection from interference.