**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

DATARADIO CORPORATION )

)

Emergency Petition for Waiver of )

Section 90.547 of the Commission\'s Rules )

**ORDER**

**Adopted: November 13, 2000 Released: November 14, 2000**

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

######### I. INTRODUCTION

1\. On December 20, 1999, Dataradio Corporation ("Dataradio") filed an
emergency petition for waiver of Section 90.547 of the Commission\'s
Rules[^1] to permit it to manufacture mobile and portable transmitters
that do not operate on nationwide narrowband interoperability
channels.[^2] For the reasons set forth herein, we deny Dataradio's
Petition.

**II. BACKGROUND**

2\. On September 29, 1998, the Commission established a band plan and
adopted service rules in the public safety spectrum at 764-776 MHz and
794-806 MHz (collectively, the 700 MHz band).[^3] The Commission
apportioned the 700 MHz band use designations as follows: approximately
fifty-three percent for general use, ten percent for
interoperability,[^4] and thirty-seven percent reserved for later
designation.[^5] As part of this action, the Commission required that
all narrowband[^6] mobile and portable 700 MHz band public safety radios
be capable of operating on all of the narrowband nationwide
interoperability channels.[^7] At the same time, the Commission
established the Public Safety National Coordination Committee ("NCC"),
an advisory committee established under the Federal Advisory Committee
Act,[^8] to make recommendations to the Commission regarding standards
concerning equipment to operate on the interoperability channels in the
700 MHz band.

3\. Dataradio develops, manufactures, and implements wireless products
and networks supporting data applications for mobile and fixed uses in
the public safety and private wireless communities.[^9] On December 20,
1999, Dataradio requested a waiver of Section 90.547 to allow it to
manufacture 700 MHz band public safety radios that do not operate on the
nationwide interoperability channels.[^10]

**III. DISCUSSION**

4\. Section 1.925 of the Commission's Rules provides that a rule waiver
will not be granted unless an applicant shows that either: (a) the
underlying purpose of the rule will not be served or would be frustrated
by its application in the particular case, and that grant of the waiver
is in the public interest; or (b) the unique facts or unusual
circumstances of a particular case render application of the rule
inequitable, unduly burdensome, or otherwise contrary to the public
interest, or the applicant has no reasonable alternative.[^11] For the
reasons discussed below, we conclude that Dataradio has not made the
requisite showing that grant of its requested waiver of Section 90.547
is warranted.

5\. *Underlying purpose*. The Commission enacted Section 90.547 to
promote nationwide interoperability in the 700 MHz band, and ultimately
require that all new equipment used in the 700 MHz band be
interoperability-capable. The Commission concluded that the inability of
public safety agencies to communicate efficiently with each other was a
glaring deficiency in existing public safety communications.[^12]
Recognizing interoperability as an essential requirement for the
effective functioning and fulfillment of the missions of public safety
agencies, the Commission adopted this rule to further the development of
a regulatory framework to meet vital current and future public safety
communications needs.[^13] Given this backdrop, we find that Dataradio
has failed to demonstrate that the underlying purpose of Section 90.547
of the Commission's Rules will not be served or would be frustrated by
its application in this case, or that grant of the waiver is in the
public interest.

6\. In its waiver request, Dataradio asserts that requiring it to comply
with Section 90.547 (*i.e.,* to manufacture interoperability-capable
equipment) undermines the purpose of the rule.[^14] Specifically, it
contends that having to wait for 700 MHz interoperability standards to
be adopted by the Commission is tantamount to allowing the
interoperability spectrum to "hold hostage" the entire narrowband
spectrum. Dataradio contends that such application of the rule deprives
public safety users of immediate access to the 700 MHz band General Use
channels, and is contrary to the Commission's underlying intent to
balance the need for interoperability with that for other public safety
communications .[^15]

7\. We believe that Dataradio misinterprets the Commission's intent
regarding Section 90.547 of the Commission's Rules. A significant
benefit of allocating the 700 MHz spectrum to public safety use from
broadcast use is that, once broadcasters have vacated the spectrum,
there will be only public safety communications accommodated in the
spectrum.[^16] In short, the rules for public safety use of this
spectrum, as envisioned by Section 90.547 in particular, are written to
further the best public interest policies for such unused spectrum.
Although a band plan was adopted dividing the use of the public safety
spectrum by designating ten percent for interoperability, the
Commission's overall approach was designed so *all* public safety
agencies would be interoperability-capable.[^17] As a result, we believe
that a decision that creates a lack of interoperability would in fact
undermine the efficiency of the use of the entire spectrum and the
Commission's express goals in establishing rules for the public safety
700 MHz band.[^18]

8\. Dataradio asserts that the shortage of spectrum for public safety
users and the immediate need to access state-of-the-art data equipment
prevents users from accessing the latest narrowband technology.[^19]
Some commenters state that we should allow use of the 700 MHz band
before the Commission adopts interoperability standards in order to
satisfy current needs.[^20] Dataradio argues that delaying licensing of
the General Use channels serves no purpose because not all public safety
entities desire or require interoperability.[^21] In this connection, it
claims that while interoperability, especially for voice use, is
important for some agencies, many data requirements for internal
purposes can be satisfied on the General Use channels.[^22]

9\. We are not persuaded by Dataradio's argument that many public safety
entities do not necessarily require interoperability but merely desire
the option to obtain radios with interoperability features.[^23]
Dataradio's assertion presupposes that any such "option" automatically
justifies its request to manufacture radios prior to interoperability
standards being established, and that immediate manufacture of equipment
(absent standards) should take precedence over the Commission's goals
stated in the *First Report and Third Notice* and the NCC process.[^24]
We disagree. By adopting Section 90.547, the Commission foreclosed users
from the option to elect whether or not to purchase 700 MHz radios
without interoperability capability. We agree with PSWN that public
safety agencies need interoperability channels to effectively perform
their critical, often life-saving missions,[^25] and see no evidence
justifying a departure from the Commission's general policy regarding
all public safety 700 MHz band users having access to interoperability
channels.

10\. Dataradio and some commenters argue that Section 90.547 serves no
purpose under the present circumstances because immediate access to the
General Use channels will not prevent public safety data
interoperability once appropriate standards are developed.[^26] AASHTO,
for example, says that the Commission could simply require all equipment
manufactured after the approval of a data interoperability standard to
meet the requirement.[^27] Ericsson suggests requiring any manufacturer
exercising the requested waiver to agree that non-interoperable radios
either: (1) will be modified to include a capability of operating on any
of the designated nationwide interoperability channels, or

\(2\) will be removed from the air by some date certain.[^28]

11\. We disagree with the contention that granting Dataradio's Petition
would not impact realization of national interoperability. We recognize
that public safety agencies generally operate within limited budgets and
thus are less inclined to replace existing equipment prior to the end of
the equipment's useful life absent extraordinary circumstances.[^29] We
are concerned that if Dataradio's request were granted, it would mean
that when interoperability standards for the 700 MHz band are adopted
and radios manufactured accordingly, those public safety entities that
purchased the "earlier" equipment (*e.g.,* Dataradio's
non-interoperability capable) will be reluctant, perhaps financially
unable, to buy radios that comply with the 700 MHz interoperability
standards. As a result, the overall plan of the Commission to achieve
interoperability on the 700 MHz band would be jeopardized.[^30]
Achieving the Commission's goal requires that only equipment capable of
operating on designated nationwide narrowband interoperability channels
be used. In addition, arguments for "grandfathering" the earlier general
use radios no doubt would be made, and public safety entities would be
even more reluctant to purchase the interoperable equipment. Thus, we
conclude that Dataradio has not made a sufficient showing that grant of
the requested waiver is warranted under Section 1.925(b)(3)(a).

12\. *Unique circumstances.* Alternatively, Section 1.925 allows for
waiver of a rule for unique circumstances when a petitioner demonstrates
that application of the rule would be inequitable, burdensome, or
otherwise contrary to public interest, or the petitioner has no
reasonable alternative.[^31] Here, Dataradio asserts that its case
presents unique or unusual circumstances justifying a waiver, because,
absent a waiver, it will be years before narrowband equipment can be
manufactured and certified, regional plans for the general use channels
developed, and frequency assignments made.[^32]

13\. Dataradio's position is not unique in that it is but one of a
number of companies that develop, manufacture, and implement wireless
products and networks supporting data applications for mobile and fixed
uses in the public safety and private wireless communities. Indeed,
*all* manufacturers of radios intended for use in the 700 MHz band are
under the purview of Section 90.547.[^33] In short, as one commenter
noted, Dataradio's request does not deal with a specific implementation;
rather, the requests seeks blanket authority to manufacture equipment
for the 700 MHz band before complete rules and guidelines are
developed.[^34] It is axiomatic that the Commission must not eviscerate
a rule by a waiver.[^35] We believe that grant of the Dataradio Petition
would eviscerate the underlying purpose of Section 90.457 of the
Commission's Rules. Furthermore, we believe that Dataradio has
reasonable alternatives within the existing Rules. Given Dataradio's
position that there is a critical need for its equipment for public
safety use, we note that it is not foreclosed from manufacturing
equipment for use in public safety bands other than the 700 MHz
band.[^36] However, it does not yet have the option to manufacture
equipment for operation in the 700 MHz band.

14\. Moreover, we reject Dataradio's argument that it will be years
before digital interoperability standards are approved.[^37] Contrary to
Dataradio's suggestion, the record indicates that the process for
establishing relevant narrowband interoperability standards is
proceeding on a timely basis.[^38] On February 25, 2000, the NCC issued
its report recommending, *inter alia*, digital interoperability
standards for both voice and narrowband data communications.[^39] Some
commenters urge quick action in adopting the standards recommended by
the NCC, so that equipment vendors can move forward to develop
interoperable 700 MHz data communications equipment which could be made
available to public safety users in the very near future.[^40] Ericsson
supports Dataradio's Petition until digital television implementation
actually takes place. It believes that the initial NCC recommendations
are not the final answer, and that Dataradio's request is not
obviated.[^41] It also states that imposing requirements on equipment
that, for all intents and purposes, will be unusable on a widespread
basis for many years to come does not seem an appropriate way to
facilitate early entry into the general use portion of the 700 MHz
band.[^42] Dataradio, for its part, believes that the NCC has moved *too
quickly* to adopt what Dataradio considers an obsolescent narrowband
data standard, and that further consideration and discussion are
needed.[^43]

15\. The Commission has begun already to address the NCC's
recommendations. On August 2, 2000, the Commission released a *Fourth
Notice of Proposed Rule Making*[^44] seeking comment on the NCC Report.
In the *Fourth Notice*, the Commission noted its preliminary support for
the NCC recommendations regarding certain narrowband data
interoperability standards.[^45] Simply put, then, the process for
establishing relevant interoperability standards is progressing in a
manner comporting with reasoned decision-making and administrative due
process. [^46] The opportunity to comment will afford interested parties
an opportunity to fully address the substance of the NCC's
recommendations. Thus, we believe it is likely that the Commission will
make its decision regarding interoperability standards in the not too
distant future. We are not persuaded that grant of Dataradio's request
at this time will result in a meaningful expedited delivery of 700 MHz
band public safety equipment.

**IV. CONCULSION**

16\. In summary, we believe that the essential and critical nature of
public safety communications and the benefits associated with public
safety interoperability weigh against granting the waiver in the instant
case. As the Commission stated in the *First Report and Third Notice*,
"interoperability signifies the crowning achievement of this
proceeding."[^47] Therefore, Section 90.547 ensures that, regardless of
the primary communications channel being used in the 700 MHz band,
public safety interoperability, often required at unpredictable times,
can be achieved -- but only when equipment designed under standards
adopted by the NCC and capable of operating on designated nationwide
narrowband interoperability channels approved by the Commission will be
permitted for use. The Commission's adoption of Section 90.547 provides
a unique opportunity to promote interoperability on the 700 MHz band,
whereas granting the Petition would undermine the Commission's efforts
in this regard. Therefore, for the reasons stated herein, we find that
Dataradio has not demonstrated that it has met the burden for grant of
its request for waiver of Section 90.547 of the Commission\'s Rules.

**V. ORDERING CLAUSES**

17\. **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 Emergency
Petition for Waiver filed by Dataradio Corporation on December 20, 1999,
**IS DENIED**.

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

FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

> Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 90.547 provides that "\[m\]obile and portable
    transmitters designed pursuant to standards adopted by the National
    Coordination Committee to operate in the 764-776 MHz and 794-806 MHz
    frequency bands must be capable of operating on any of the
    designated nationwide narrowband interoperability channels approved
    by the Commission."

[^2]: Dataradio Emergency Petition for Waiver (filed Dec. 20, 1999)
    ("Petition").

[^3]: Development of Operational, Technical and Spectrum Requirements
    for Meeting Federal, State and Local Public Safety Agency
    Communication Requirements Through the Year 2010, *First Report and
    Third Notice of Proposed Rule Making*, WT Docket No. 96-86, 14 FCC
    Rcd. 152 (1998) (*First Report and Third Notice*).

[^4]: The term "interoperability" refers to the ability of different
    governmental agencies to communicate across jurisdictions and with
    each other. *See First Report and Third Notice*, 14 FCC Rcd. at
    189-90 ¶ 76.

[^5]: *See* *id.* at 175-76 ¶ 43. The precise allocation is 52.5% for
    general use, 10.8% for interoperability, and 36.7% held in reserve*.
    Id.*

[^6]: The term "narrowband" refers to bandwidth less than or equal to 25
    kHz. 47 C.F.R. § 90.531 sets forth the band plan for the 764-776 MHz
    and 794-806 MHz public safety bands.

[^7]: *First Report and Third Notice*, 14 FCC Rcd. at 213 ¶ 135; *see
    also* 47 C.F.R. § 90.547.

[^8]: 5 U.S.C. , App. 2 (1988).

[^9]: Petition at 3.

[^10]: On February 9, 2000, the Wireless Telecommunications Bureau
    sought public comment on Dataradio's waiver request. Wireless
    Telecommunications Bureau Seeks Comment on Request for Waiver by
    Dataradio Corporation for Exemption From Rule requiring Transmitter
    Capabilities on Interoperability Channels, *Public Notice*, DA
    00-230 (WTB PSPWD rel. Feb. 9, 2000). We received comments and reply
    comments from American Association of State Highway and
    Transportation Officials ("AASHTO"), Association of Public-Safety
    Communications Officials-International, Inc. ("APCO"), Public Safety
    Wireless Network ("PSWN"), and Motorola; reply comments from Com-Net
    Ericsson Critical Radio Systems ("Ericsson"), Dataradio,
    Forestry-Conservation Communications Association (also representing
    its parent organizations, the National Association of State
    Foresters and the International Association of Fish and Wildlife
    Agencies (collectively, "FCCA")), City of Long Beach, California
    ("Long Beach"), County of Los Angeles, California ("Los Angeles"),
    International Association of Fire Chiefs, Inc. and the International
    Municipal Signal Association (collectively, "IAFC/IMSA"), City of
    Mesa, Arizona ("Mesa"), New York State Technology Enterprise
    Corporation, V&L Com Inc. ("V&L"); and ex parte letters and/or
    presentations from Kathleen M.H. Wallman ("Wallman") (which was
    subsequently withdrawn), and Dataradio.

[^11]: 47 C.F.R. § 1.925(b)(3).

[^12]: *First Report and Third Notice*, 14 FCC Rcd. at 156 ¶ 7.

[^13]: *See* Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Agency Communication Requirements Through the Year 2010, *Notice of
    Proposed Rule Making*, WT Docket No. 96-86, 11 FCC Rcd. 12460,
    12468-49 ¶¶ 21-22 (1996) (*First Notice*).

[^14]: Petition at 10-11.

[^15]: *Id*. at 11.

[^16]: Congress has directed that the 700 MHz band be reallocated from
    television broadcast to public safety use. *See* 47 U.S.C. §
    337(b)(1).

[^17]: *See generally First Report and Third Notice*, 14 FCC Rcd. at
    37-39 ¶¶ 73-76.

[^18]: *Id.* at 156 ¶ 7. The Commission noted the importance of
    interoperability when it stated, \"\[I\]nability to communicate
    hinders cooperation and coordination between public safety agencies
    on a day-to-day basis as well as during emergencies. We believe that
    the present inability of public safety agencies to communicate with
    each other is one of the most critical deficiencies in today\'s
    public safety communications.\" *First Notice*, 11 FCC Rcd. at 12469
    ¶ 22; *see also* Development of Operational, Technical and Spectrum
    Requirements for Meeting Federal, State and Local Public Safety
    Agency Communications Requirements through the Year 2010;
    Establishment of Rules and Requirements For Priority Access Service,
    *Second Notice of Proposed Rule Making*, WT Docket No. 96-86, 12 FCC
    Rcd. 17706, 17718-22 ¶¶ 27-33 (1997); *Final Report of the Public
    Safety Wireless Advisory Committee* 19-20, 45-48 (Sept. 11, 1996).

[^19]: Petition at 3.

[^20]: *See* AASHTO Comments at 5-6; FCCA Reply Comments at 1-2;
    IAFC/IMSA Reply Comments at 1; V&L Reply Comments at 1.

[^21]: Petition at 3, 12.

[^22]: *Id*.

[^23]: *See id.* at 12-13.

[^24]: The Commission chartered the NCC, *inter alia*, to advise the
    Commission on national interoperability and technical standards to
    be adopted for use in the 700 MHz band. *See First Report and Third
    Notice*, 14 FCC Rcd. at 197 ¶ 92; *see also* 63 Fed. Reg. 58645
    (1999).

[^25]: *See* PSWN Comments at 4.

[^26]: Petition at 13.

[^27]: AASHTO Comments at 5-6.

[^28]: Ericsson Reply Comments at 4-5.

[^29]: APCO Comments at 3-4.

[^30]: We also note that while Dataradio correctly observes that the
    *PSWAC Final Report* recommended that spectrum for interoperability
    be taken from the 138 MHz and 512 MHz bands and not from a new
    allocation in the 700 MHz band, Petition at 8, the Commission
    nonetheless was well aware of this recommendation when it adopted
    the *First Report and Third Notice* designating 2.6 megahertz of
    spectrum in the 700 MHz band for interoperability purposes.
    Moreover, although the FCC in the *Third Notice* sought comment on
    proposals to promote interoperability on public safety channels
    below 512 MHz, legislation subsequently reclaimed the three
    megahertz of spectrum in the 138--143 MHz band for Government use
    that earlier was reallocated for non-Government use. The NTIA
    originally identified 139.0-140.5 MHz and 141.5-143 MHz, for
    reallocation in response to the Balanced Budget Act of 1997. Pub. L.
    No. 105-33, § 4004, 111 Stat. 251 (1997), 47 U.S.C. § 337(a)(1). In
    the National Defense Authorization Act of FY 2000, Pub. L. No.
    106-65, § 1062, 113 Stat. 767 (1999), however, Congress reclaimed
    that spectrum for exclusive federal use, thereby rendering both the
    issue and that portion of Dataradio's Petition moot.

[^31]: 47 C.F.R. § 1.925(b)(3).

[^32]: Petition at 3, 10.

[^33]: We take administrative notice that Motorola is also a
    communications equipment manufacturer of radios used by the public
    safety community. Moreover, it has a representative on the NCC
    Steering Committee. *See* NCC Report at 3. It is instructive that
    Motorola itself, while not opposed to limited relief for Dataradio
    as described in its waiver request, nonetheless believes that
    additional steps must be taken before manufacturers, including
    Dataradio, can begin implementing solutions for public safety users
    in the 700 MHz band. Motorola Comments at 4.

[^34]: Mesa Comments at 1.

[^35]: Nextel Communications, Inc., *Order*, 14 FCC Rcd. 11678, 11691-92
    ¶ 31 (WTB 1999), review pending (filed Aug. 20, 1999) *citing*
    Riverphone, *Memorandum Opinion and Order*, 3 FCC Rcd. 4690, 4692 ¶
    12 (1988).

[^36]: For example, public safety channels designated for use in the 800
    MHz public safety band channels (*i.e*., 806-824 MHz and 851-869
    MHz); and other channels designated for public safety use (*e.g.,*
    150-174 MHz, 450-470 MHz, and 220-222 MHz.)

[^37]: *See* APCO Comments at 3; Los Angeles Reply Comments at 1-2;
    Motorola Comments at 3 (due to efforts of many devoted public safety
    interests, the NCC standards-setting has proceeded much faster than
    originally expected).

[^38]: When the Commission established the interoperability portion of
    the 700 MHz band and chartered the NCC to recommend a national
    interoperability operational plan for Commission review and approval
    (as well as the technical standards to apply to all public safety
    interoperability channel equipment), the Commission knew the process
    would not be accomplished "immediately." Indeed, the Commission
    expected the NCC to complete its work within four years of the
    release of the *First Report and Third Notice*, 14 FCC Rcd. at 197 ¶
    92. Having established this four-year time frame, the Commission in
    the *First Report* purposely adopted Section 90.547.

[^39]: *See* Public Safety National Coordination Committee,
    Recommendations to the Federal Communications Commission for
    Technical and Operational Standards for Use of the 764-776 MHz and
    794-806 MHz Public Safety Band Pending Development of Final Rules
    (Feb. 25, 2000) ("NCC Report").

[^40]: *See* APCO Comments at 3; Long Beach Reply Comments at 2;
    Motorola Comments at 1, 4.

[^41]: Ericsson Reply Comments at 2-4.

[^42]: *Id*. at 3.

[^43]: Dataradio Reply Comments at 4-5. Regardless of the merits of the
    NCC Report, we are struck by the fact that Dataradio's Petition, on
    the one hand, complains about the length of time it will take in
    arriving at interoperable standards, yet, on the other hand, after
    the NCC Report was submitted to the Commission, Dataradio complains
    about the speed in which the NCC arrived at the recommendations
    contained in the NCC Report. Moreover, Dataradio itself states that
    it has been participating in the meetings of the NCC and has offered
    to assist it in developing appropriate interoperable data standards.
    *Id.* at 6.

[^44]: Development of Operational, Technical and Spectrum Requirements
    for Meeting Federal, State and Local Public Safety Communication
    Requirements Through the Year 2010; Establishment of Rules and
    Requirements of Priority Access Service, *Fourth Notice of Proposed
    Rule Making*, WT Docket No. 96-86, FCC 00-271 (rel. Aug. 2, 2000)
    (*Fourth Notice*).

[^45]: *Id*. at ¶¶ 54-55.

[^46]: We note that, pursuant to the NCC Charter, the NCC was required,
    within one year of the date of the filing of the Charter, to
    formulate and submit for Commission review and approval its
    recommendations for use of the interoperability spectrum, including
    recommendations for Federal Government users' access, that will
    allow public safety licensees to make use of such spectrum until
    final rules are developed. *See* Charter, The Public Safety National
    Coordination Committee, Section B 4 (Charter filed Feb. 25,
    1999)available at
    http://www.fcc.gov/wtb/publicsafety/ncc/charter.html. The NCC met
    its first year's time-frame requirement because it submitted its
    recommendations to the Commission on February 25, 2000. The NCC
    Charter subsequently has been amended (amended Charter filed May 3,
    2000).

[^47]: *First Report and Third Notice*, 14 FCC Rcd. at 156 ¶ 7.