**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. 0001750425          |
|                                  | *) |                              |
| COUNTY OF PLACER, CALIFORNIA     | ** | File Nos. 0001775400,        |
|                                  |    | 0001791005                   |
| WARREN C. HAVENS                 | *  |                              |
|                                  | *) | File No. 0001823171          |
| and                              | ** |                              |
|                                  |    |                              |
| MARITEL SOUTHERN PACIFIC, INC.   | *  |                              |
|                                  | *) |                              |
| Request for Waiver of Part 80    | ** |                              |
| Rules to Permit Use of Maritime  |    |                              |
| Frequencies for Private Land     | *  |                              |
| Mobile Radio Communications      | *) |                              |
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| Requests for Waivers of Section  |    |                              |
| 80.773 of the Rules Regarding    | *  |                              |
| Signal Strength                  | *) |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: February 16, 2005 Released: February 16, 2005**

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

1.  *Introduction*. On June 14, 2004, MariTEL Southern Pacific, Inc.
    (MariTEL) filed applications for consent to partition and
    disaggregate portions of its VHF Public Coast (VPC) geographic
    license to the County of Placer, California (Placer)[^1] and
    Warren C. Havens (Havens).[^2] Also filed was a corresponding
    request for waiver of Part 80 of the Commission's Rules to permit
    Placer to use the frequencies that it would receive to upgrade its
    analog public safety communications system. The applications also
    request waivers to implement an agreement among the parties to
    authorize operation at their common borders with higher signal
    strengths than the rules permit. In addition, on June 30 and July
    29, 2004, respectively, Havens[^3] and MariTEL[^4] filed
    applications and waiver requests to modify their adjoining VPC
    geographic license to authorize the signal strength permitted by
    their agreement among the parties. For the reasons that follow, we
    grant the waiver requests to the extent indicated below, and will
    grant the above-captioned applications.

2.  *Background*. Placer is a county in northern California that runs
    from Sacramento County east-northeast to the California-Nevada state
    line. The county is within VPC Service Area (VPCSA) 6, the
    geographic license for which is held by MariTEL under Call Sign
    WPOJ536. Nearby portions of California and Nevada are within
    adjoining VPCSA 34, the geographic license for which is held by
    Havens under Call Sign WPOJ521.

3.  Placer states that its conventional analog public safety radio
    system, which supports 1,800 users associated with a number of
    County departments and agencies, is severely congested, difficult to
    maintain and not capable of meeting, or expanding to meet, its
    public safety and emergency communications needs.[^5] It states that
    the county is experiencing significant population and economic
    growth that has created a need for improved coordination and
    communication.[^6] To address its needs, Placer developed a plan to
    implement a trunked, digital state-of-the-art voice and data
    communications network using narrowband technology to serve Federal,
    state and local agencies.[^7] Placer states that the VHF band offers
    the most workable spectrum for this new system. It also states that,
    because its current system uses VHF frequencies, the continued use
    of the VHF band allows for an easier transition to a new system and
    lower transition costs.[^8] However, according to Placer, sufficient
    Part 90 VHF spectrum is not available.[^9]

4.  Consequently, as permitted under Section 80.60 of the Commission's
    Rules, MariTEL proposes to partition and disaggregate VPC spectrum
    in Placer County to Placer,[^10] which requests that its public
    safety use of the spectrum be licensed under, and governed by, Part
    90 of the Commission's Rules.[^11] Placer emphasizes that it is not
    seeking to use VPC channels in areas where they might otherwise be
    used to meet demand for marine VHF communications and that it does
    not propose to use marine Channel 87B (161.975 MHz), which is one of
    two frequencies allocated internationally for Automatic
    Identification Systems (AIS),[^12] an international maritime
    navigation safety communications system adopted by the International
    Maritime Organization and Safety of Life at Sea Convention intended
    for collision avoidance, monitoring and tracking.[^13]

5.  MariTEL also seeks to assign different VPC spectrum to Havens along
    the border between VPCSAs 6 and 34.[^14] The proposed assignment to
    Havens is pursuant to an agreement among MariTEL, Havens, and Placer
    designed to protect each licensee's operational rights and ensure
    reliable signal strengths in their respective areas of
    operation.[^15] Specifically, Section 80.773(c) of the Commission's
    Rules specifies that VPC geographic area licensees cannot exceed
    field strength of +5 dBu at their service area boundaries, unless
    all affected geographic licensees agree to higher field
    strength.[^16] MariTEL, Placer and Havens have entered into an
    agreement to allow them to exceed the limitation as follows[^17]:

    » Placer would be permitted to operate in the partitioned area[^18]
    on the channel pairs it receives from MariTEL with a signal strength
    of 37 dBu at the boundary between the partitioned area and the
    remainder of VPCSA 6, and with a signal strength of 54 dBu at the
    boundary between the partitioned area and VPCSA 34.

    » Havens would be permitted to operate in the partitioned area[^19]
    and elsewhere in VPCSA 34[^20] on the channel pairs he receives from
    MariTEL with a signal strength of 50 dBu at the boundary between the
    partitioned area and the remainder of VPCSA 6.

    » MariTEL would be permitted to operate on the channel pairs Havens
    receives from it with a field strength of 7 dBu at the boundaries
    between the partitioned area[^21] and the remainder of VPCSA 6.
    [^22]

    Although Section 80.773(c) permits the parties to agree to higher
    field strengths, the parties request a waiver so that their licenses
    will reflect the agreed-upon field strengths, in order to protect
    their rights in the event that one of the parties loses its
    authorization.[^23]

6.  The assignment applications went on public notice on June 23,
    2004.[^24] On July 23, 2004, the National Telecommunications and
    Information Administration (NTIA) filed a petition to deny the
    assignment applications.[^25] On August 5, 2004, Placer and Motorola
    (Placer's equipment vendor) filed a consolidated opposition to
    NTIA's petition,[^26] and MariTEL filed an opposition.[^27]

7.  *Discussion.* Section 1.925 of the Commission\'s Rules provides that
    we may grant a waiver if it is shown that (a) the underlying purpose
    of the rule(s) would not be served or would be frustrated by
    application to the instant case, and grant of the requested waiver
    would be in the public interest; or (b) in light of unique or
    unusual circumstances, application of the rule(s) would be
    inequitable, unduly burdensome, or contrary to the public interest,
    or the applicant has no reasonable alternative.[^28] Based on the
    record before us, we conclude that the waiver requests should be
    granted. Specifically, we grant the waiver requests and conclude
    that the underlying purpose of the subject rules would not be served
    by application to the instant case and grant of the requested
    waivers would be in the public interest.

8.  We have granted similar requests to allow the partitioning and
    disaggregation of VPC spectrum for use in public safety radio
    systems.[^29] NTIA maintains its opposition to assignment
    applications in the VPC band because of potential interference to
    future AIS frequencies, and argues that the present applications
    should be denied or held in abeyance pending the outcome of the
    Commission's pending AIS rulemaking proceeding.[^30] We agree with
    Placer, however, that these applications can be processed without
    prejudice to resolution of the pending AIS issues.[^31] In this
    connection, we note that Placer's operations do not include Channels
    87B or 88B, and they would be subject to any rule changes adopted in
    that proceeding. Moreover, given the existing need for additional
    public safety spectrum that has been demonstrated by Placer, we do
    not believe that it would be in the public interest to defer its use
    of the VPC frequencies in question because of issues involving other
    VPC frequencies. As a result, we believe that the public interest
    would be best served under an approach whereby NTIA's interests in
    resolving the pending AIS issues are accommodated without suspending
    implementation of the proposed transaction.[^32]

9.  NTIA and the Coast Guard state that Placer's proposed operations
    could cause interference to AIS operations, and thus adversely
    affect the safe navigation of vessels in or near Placer's navigable
    waterways, and could impair the Coast Guard's ability to perform its
    missions.[^33] The Coast Guard states that even with the exclusion
    of Channel 87B and the surrounding interstitial channels, Placer's
    proposed operations could cause interference to maritime
    communications.[^34] NTIA and the Coast Guard argue that since the
    applications do not set forth Placer's detailed technical
    parameters, it is not possible to analyze potential interference to
    maritime communications. However, based on Placer's request to have
    field strength of up to +54 dBu at the service area boundaries, and
    the likelihood that antennas will be located on mountaintops, they
    believe Placer's operations could pose a threat of interference to
    maritime communications and AIS operations in areas of Lake Tahoe,
    the Ports of Oakland, San Francisco, Sacramento, and Stockton, and
    the northern California coast.[^35] The Coast Guard asks that we
    require that land mobile operations must not cause any harmful
    interference to current or future maritime communications.[^36] It
    also asks that land mobile operations be subject to prior technical
    coordination with NTIA to assure there is no radio
    interference.[^37]

10. MariTEL[^38] and Placer[^39] contend that the project was engineered
    so as not to interfere with marine communications and AIS
    operations. Placer states that, because of homeland security and
    other reasons, it gave only the boundary coordinates and channel
    pairs associated with the assignment, as required by Section
    80.60[^40] of the Commission's Rules.[^41] Placer indicates that the
    actual technical details of the proposed operations, such as
    locations, antenna heights, power levels and frequency plans will
    vary, and actual power levels will be much lower in many cases than
    levels assumed by the Coast Guard.[^42] It also states that, if
    requested, it is prepared to disclose information to the NTIA and
    Coast Guard regarding its operations.[^43]

11. We recognize the importance of interference-free AIS operations and
    other maritime communications. We do not believe, however, that the
    record before us demonstrates that Placer's proposed operations pose
    a sufficient interference threat to warrant denial of the waiver
    request. Moreover, as noted above, we conclude that the pendency of
    the AIS rulemaking proceeding does not require us to withhold
    approval of Placer's entire request. Instead, we will grant the
    applications for Placer's proposed operation. In addition, we grant
    Placer's request for a waiver of the Part 80 rules to permit its
    public safety operations on VPC spectrum to be governed by Part 90
    of the Commission's Rules. We have granted similar waivers to the
    States of South Dakota and Montana and the Commonwealth of
    Virginia,[^44] and we believe that the same factors that warranted
    grant of those waivers are present in the instant matter.

12. We imposed conditions on the Virginia grant that we did not impose
    on the South Dakota and Montana grants, because the other states
    lack areas of substantial marine activity. Similarly, we will impose
    the same requirements on Placer as we did on Virginia. Specifically,
    in order to address the concerns raised by NTIA and the Coast Guard,
    we expressly condition our grant of the application and waiver
    request on Placer not causing interference to current or future
    marine communications, including but not limited to AIS operations.
    We note that Placer has stated that it is willing to share
    information regarding its operations with Coast Guard and NTIA.[^45]
    Therefore, we will not require prior technical coordination with
    NTIA, but we expect Placer to work closely with the Coast Guard and
    NTIA to ensure that all contemplated operations pose no potential
    for interference to marine communications, and to act quickly in the
    event interference is reported.[^46]

13. NTIA also asserts that granting the requested waiver would amount to
    a reallocation of frequencies from maritime mobile to land mobile
    service in the partitioned areas.[^47] We disagree. As MariTEL
    states, grant of the requested waiver would no more be a *de facto*
    reallocation than would grant of any waiver of otherwise applicable
    service rules.[^48] Indeed, the Commission's rules permit VHF public
    coast licensees to serve units on land.[^49] Further, the Rules
    previously permitted land mobile users to be licensed on VHF public
    coast frequencies in some areas.[^50] We find it decisionally
    significant that neither rule was ever deemed a reallocation of
    spectrum. Taking all of these factors into account, we conclude that
    granting Placer's request for waiver would not affect a reallocation
    of frequencies and, as Placer states,[^51] would promote the
    Commission's goals of providing for flexible and efficient use of
    the spectrum.[^52]

14. Finally, the Coast Guard argues that the requests for waiver of
    Section 80.773, by which the parties seek to ensure that their
    agreement for a reliable signal strengths in each licensees area of
    operation will continue in the event one of the licensees defaults
    on its license obligations, is seeking a new rule and is beyond our
    authority.[^53] We disagree. As Placer notes, its request does not
    inhibit the Commission from making rule changes of general
    applicability should conditions change.[^54] The limited conditions
    they seek are to provide protection to the licensees from any
    disruption of their operations that could result from actions of
    parties outside of their control. We believe that it is in the
    public interest to provide the appropriate protection by applying
    the operational conditions[^55] to the authorizations.

15. *Conclusion*. We grant the assignment applications for the requested
    frequencies. We also grant Placer's request for a waiver of Part 80
    of the Commission's Rules to permit its public safety operations on
    VPC spectrum to be governed by Part 90 of the Commission's Rules,
    and all three parties' requests for waivers of Section 80.773.
    However, because Placer's operations could, in some circumstances,
    present a potential for interference to maritime operations, the
    instant waiver requests are granted on the express condition that no
    interference is caused to current or future marine communications,
    including but not limited to AIS operations.

16. For reasons set forth above, IT IS ORDERED, pursuant to the
    authority of Sections 4(i) and 303(i) of the Communications Act of
    1934, as amended, 47 U.S.C. §§ 154(i), 303(i), and Section 1.925 of
    the Commission\'s Rules, 47 C.F.R. § 1.925, that the Request for
    Waiver filed by County of Placer, California in association with FCC
    File No. 0001750425 on June 14, 2004, IS GRANTED SUBJECT TO THE
    CONDITION THAT no interference is caused to current or future marine
    communications, including but not limited to AIS operations.

17. IT IS FURTHER ORDERED that the Requests for Waiver filed by
    Warren C. Havens in association with FCC File Nos. 0001775400 and
    0001791005 on June 14 and 30, 2004, ARE GRANTED.

18. IT IS FURTHER ORDERED that the Request for Waiver filed by MariTEL
    Southern Pacific, Inc. with FCC File No. 0001823171 on July 29,
    2004, IS GRANTED.

19. IT IS FURTHER ORDERED that applications FCC File Nos. 0001750425,
    0001775400, 0001791005, and 0001823171 SHALL BE PROCESSED consistent
    with this *Order* and the Commission's Rules, and the licenses at
    issue shall be modified accordingly*.*

20. 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

    Michael J. Wilhelm Chief, Public Safety and Critical Infrastructure
    Division Wireless Telecommunications Bureau

[^1]: *See* FCC File No. 0001750425.

[^2]: *See* FCC File No. 0001775400.

[^3]: *See* FCC File No. 0001791005.

[^4]: *See* FCC File No. 0001823171.

[^5]: *See* MariTEL-Placer Waiver Request at 2.

[^6]: *Id.*

[^7]: *Id.* at 3.

[^8]: *Id.* at 4.

[^9]: *Id.*

[^10]: Specifically, MariTEL seeks consent to partition and disaggregate
    ten 12.5 kHz channel pairs (157.2000/161.8000 MHz, 157.2125/161.8125
    MHz, 157.2250/161.8250 MHz, 157.2375/161.8375 MHz, 157.2500/161.8500
    MHz, 157.2625/161.8625 MHz, 157.2750/161.8750 MHz, 157.2875/161.8875
    MHz, 157.3000/161.9000 MHz, 157.3125/161.9125 MHz,) to Placer in
    various portions of the County. *See* FCC File No. 0001750425,
    Schedule C.

[^11]: In the alternative, Placer seeks a waiver of Sections 80.123 and
    80.371(c)(1)(i) of the Commission's Rules to permit use of the
    frequencies for private land mobile radio (PLMR) communications. (We
    note that the Commission has proposed to amend Section 80.123 to
    permit PLMR use of VPC frequencies. *See* Maritel, Inc. and Mobex
    Network Services, LLC, *Notice of Proposed Rule Making*, WT Docket
    No. 04-257, 19 FCC Rcd 15225 (2004).) It also requests a waiver of
    Section 80.123(e) to allow the base station equipment of its system
    to operate with 125 watts transmitter output power and 50 watts
    mobile power, maximum, consistent with the power levels permitted
    for operations licensed under Part 90. Placer also seeks a waiver of
    the Section 80.123(f) prohibition on mobile-to-mobile communications
    on land.

[^12]: *See* MariTEL-Placer Waiver Request at 6.

[^13]: The Commission has proposed to designate Channel 87B exclusively
    for AIS use in maritime VPC service areas, including VPCSA 6. *See
    generally* Amendment of the Commission's Rules Regarding Maritime
    Automatic Identification Systems, *Memorandum Opinion and Order and
    Notice of Proposed Rule Making*, WT Docket No. 04-344, 19 FCC Rcd
    20071 (2004).

[^14]: Specifically, MariTEL seeks consent to partition and disaggregate
    four 25 kHz channel pairs, four 12.5 kHz channel pairs, and one 6.25
    kHz channel pair (157.18750/161.78750 MHz, 157.26250/161.86250 MHz,
    157.28750/161.88750 MHz, 157.31250/161.91250 MHz,
    157.31875/161.91875 MHz, 157.33125/161.93125 MHz,
    157.34375/161.94375 MHz, 157. 35625/161.95625 MHz,
    157.38750/161.98750 MHz) to Havens in various areas along the border
    between VPCSAs 6 and 34. *See* FCC File No. 0001775400, Schedule C.

[^15]: MariTEL-Placer Waiver Request at 17; MariTEL-Havens Waiver
    Request at 2.

[^16]: 47 C.F.R. § 80.773(c).

[^17]: MariTEL-Placer Waiver Request at 18; MariTEL-Havens Waiver
    Request at 3.

[^18]: *I.e.*, the parts of VPCSA 6 in which MariTEL is partitioning and
    disaggregating spectrum to Placer.

[^19]: *I.e.*, the parts of VPCSA 6 in which MariTEL is partitioning and
    disaggregating spectrum to Havens.

[^20]: FCC File No. 0001791005 seeks to modify Havens's license for Call
    Sign WPOJ521 to reflect the agreed-upon higher signal strength.

[^21]: *I.e.*, the parts of VPCSA 6 in which MariTEL is partitioning and
    disaggregating spectrum to Havens.

[^22]: FCC File No. 0001823171 seeks to modify MariTEL's license for
    Call Sign WPOJ536 to reflect the agreed-upon higher signal strength.

[^23]: MariTEL-Placer Waiver Request at 18; MariTEL-Havens Waiver
    Request at 3.

[^24]: *Public Notice*, Report No. 1863 (WTB rel. June 24, 2004).

[^25]: *See* Letter dated July 23, 2004 from Fredrick R. Wentland,
    Associate Administrator, Office of Spectrum Management, NTIA to John
    B. Muleta, Chief, Wireless Telecommunications Bureau (NTIA
    Petition). Petitions to deny assignment applications are due within
    fourteen days of the date of the public notice listing the
    application as accepted for filing. 47 C.F.R. § 1.948(j). Thus,
    petitions to deny in this case were due July 7, 2004. (That the
    applications were removed from streamlined processing (*see Public
    Notice*, Rep. No. 1870 (WTB rel. July 30, 2004)) did not change the
    due date for petitions to deny.) Placer and MariTEL argue that the
    NTIA Petition should therefore be dismissed as untimely. Under the
    circumstances, we conclude that it is in the public interest to
    accept the NTIA Petition, in order to address the critical matters
    of homeland security and maritime safety that it raises. Moreover,
    considering the NTIA Petition is in accord with the agreement
    between the Commission and NTIA to give each other notice of, and an
    opportunity to comment on, relevant proposed actions. *See*
    Memorandum of Understanding Between the Federal Communications
    Commission and the National Telecommunications Administration (dated
    Jan. 31, 2003).

[^26]: Opposition of County of Placer, California and Motorola, Inc. to
    Petition to Deny (filed Aug 5, 2004) (Placer Opposition).

[^27]: Opposition of MariTEL, Inc. to Petition to Deny (filed Aug. 5,
    2004) (MariTEL Opposition).

[^28]: 47 C.F.R. § 1.925(b)(3); *see also* WAIT Radio v. FCC, 418 F. 2d
    1153, 1159 (D.C. Cir. 1969).

[^29]: *See* Commonwealth of Virginia, *Order*, 19 FCC Rcd 15454 (WTB
    PSCID 2004) (assignment from MariTEL to Commonwealth of Virginia)
    (*MariTEL-Virginia Order*); Wireless Telecommunications Bureau
    Assignment of Authorization and Transfer of Control Applications
    Action, *Public Notice*, Report No. 1852 (WTB rel. June 9, 2004)
    (FCC File Nos. 0001662537, 0001662656) (assignment from Havens to
    State of Montana); Wireless Telecommunications Bureau Assignment of
    Authorization and Transfer of Control Applications Action, *Public
    Notice*, Report No. 1411 (rel. Feb. 5, 2003) (FCC File No.
    0001132016) (assignment from MariTEL to State of South Dakota).

[^30]: *See* NTIA Petition at 1-2; *see also supra* n.13.

[^31]: *See* Placer Opposition at 2.

[^32]: *See MariTEL-Virginia Order*, 19 FCC Rcd at 15456-57 ¶ 6.

[^33]: *See* NTIA Petition at 2; Letter dated July 21, 2004 from, B.
    Judge, Commander, U.S. Coast Guard, Chief, Office of Claims and
    Litigation, to Fredrick R. Wentland, Chief Associate Administrator,
    Office of Spectrum Management, NTIA (Coast Guard Letter), attached
    to NTIA Petition.

[^34]: Coast Guard Letter at 2.

[^35]: *Id.* at 3.

[^36]: *Id.*

[^37]: *Id.*

[^38]: MariTEL Opposition at 8.

[^39]: Placer Opposition at 2.

[^40]: *See* 47 C.F.R. § 80.60(b)-(c).

[^41]: Placer Opposition at 3.

[^42]: *Id.* at 4.

[^43]: *Id*.

[^44]: *See supra* n.29.

[^45]: Placer Opposition at 4.

[^46]: *See MariTEL-Virginia Order*, 19 FCC Rcd at 15458-59 ¶ 10.

[^47]: NTIA Petition at 2.

[^48]: MariTEL Opposition at 5.

[^49]: *See* 47 C.F.R. § 80.123.

[^50]: *See* 47 C.F.R. § 90.283 (1997).

[^51]: Placer Opposition at 5 -- 6.

[^52]: *See MariTEL-Virginia Order*, 19 FCC Rcd at 15457 ¶ 7.

[^53]: Coast Guard Letter at 2.

[^54]: Place Opposition at 4.

[^55]: *See supra* ¶ 5.