**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | )  |                              |
|                                  |    |                              |
| STATE OF ILLINOIS                | )  |                              |
|                                  |    |                              |
| Request for Waiver of Section    | )  |                              |
| 90.179(a) of the Commission's    |    |                              |
| Rules                            | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: January 17, 2008 Released: January 17, 2008**

By the Chief, Public Safety and Homeland Security Bureau:

# Introduction 

1.  We have before us a request filed by the State of Illinois
    (Illinois) seeking a waiver[^1] of Section 90.179(a) of the
    Commission's rules[^2] to permit it to share use of its 700 MHz and
    800 MHz public safety channels[^3] with AmerenIP, AmerenCIPS and
    AmerenCILCO (collectively Ameren), an electric and gas utility
    service provider in Illinois. The subject frequencies are part of
    Illinois's statewide public safety communications network called
    STARCOM21. Based on the record, we grant the request in part with
    respect to Illinois's 800 MHz public safety channels, and deny the
    request in part with respect to the 700 MHz public safety channels,
    as specified herein.

# Background 

2.  Illinois represents that the STARCOM21 network uses channels in the
    700 MHz and 800 MHz bands to provide public safety communications to
    the Illinois State Police and other federal, state, county and local
    agencies.[^4] Illinois adds that it is expanding the scope of the
    STARCOM21 network to include public utilities such as Ameren.[^5]
    Illinois further states that Ameren operates a wide area radio
    network on Industrial/Business (I/B) channels in the 800 MHz
    band.[^6] Illinois indicates that, as a part of the expansion of the
    STARCOM21 network, Ameren will make its 800 MHz channels and
    stations available for use by public safety entities utilizing the
    network.[^7] In turn, Illinois asks that Ameren be permitted to
    share use of the 700 MHz and 800 MHz public safety frequencies in
    the STARCOM 21 network.

3.  Section 90.179(a) governs sharing of Part 90 frequencies, and
    provides that "persons may share a radio station only on frequencies
    for which they would be eligible for a separate authorization."[^8]
    Illinois concedes that because Ameren is an electric utility company
    licensed for I/B channels in the 800 MHz band, it would not be
    eligible for a separate authorization to use Illinois's 800 MHz
    public safety spectrum.[^9] With respect to the 700 MHz frequencies
    used by the statewide system, however, Illinois asserts that Ameren
    would be eligible to license the frequencies under section 90.523 of
    the Commission's rules, and, by extension, appears to imply that
    Ameren would be permitted to share the Illinois 700 MHz frequencies
    under Section 90.179.[^10] While somewhat unclear, Illinois does
    not, therefore, appear affirmatively to seek a waiver of Section
    90.179(a) for Ameren's use of the 700 MHz frequencies in the
    network, but instead apparently relies only on its assertion of
    Ameren's eligibility.

4.  Illinois believes that a waiver to permit Ameren to share Illinois's
    800 MHz frequencies would be in the public interest. Illinois claims
    that the corresponding addition of Ameren's frequencies to the
    STARCOM21 network would fill in gaps in the network and increase the
    channel capacity of the network, thus enabling more state agencies
    to be served and to have better geographic coverage.[^11] Illinois
    adds that Ameren's communications capabilities would be
    enhanced[^12] and that public safety communications would always
    have priority on the network.[^13] Illinois also believes that its
    proposal is consistent with and supported by Commission precedent
    granting waivers of Section 90.179(a) to permit sharing arrangements
    between public safety and utilities to enhance the operations of
    both entities.[^14] Illinois also states that the Region 13 800 MHz
    Regional Planning Committee (Region 13) has approved Illinois's
    proposal to add Ameren to the STARCOM21 network.[^15] Motorola
    supports the instant waiver request, citing enhanced
    interoperability, more effective emergency response, improved
    spectrum efficiency, and other tangible benefits to Illinois.[^16]

5.  With regard to Ameren's proposed use of Illinois's 700 MHz public
    safety channels, Illinois states only that, under Section 90.523(b),
    Ameren is eligible to share use of these frequencies, because "a
    principal purpose of Ameren's service as an operator of critical
    infrastructure is the protection of life, health and property."[^17]
    Illinois provides no additional information or evidence to support
    this assertion.

6.  Section 90.523(b) implements Section 337(f)(1) of the Act, which
    defines "public safety services" in the 763-775 MHz and 793-805 MHz
    bands.[^18] Under Section 337 of the Act, public safety services are
    services "the sole or principal purpose of which is to protect the
    safety of life, health, or property" that are provided by "State or
    local government entities" or by "nongovernmental organizations that
    are authorized by a governmental entity whose primary mission is the
    provision of such services" and that are "not made commercially
    available to the public by the provider."[^19] In addition to
    implementing the definition of public safety services under Section
    337 of the Act, Section 90.523(b) also specifies certain additional
    criteria that a non-governmental organization (NGO) like Ameren
    would be required to meet in seeking to use frequencies designated
    for public safety services, including maintaining the ongoing
    support of a governmental entity to operate a system, and using such
    a system "solely for transmission of communication essential to
    providing services the sole or principal purpose of which is to
    protect the safety of life, health or property."[^20] Under Section
    90.523, only those entities that meet this definition are eligible
    to hold a Commission authorization for systems operating in the
    public safety frequencies in the 700 MHz band.[^21]

# Discussion

7.  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;[^22] 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.[^23] An
    applicant seeking a waiver faces a high hurdle and must plead with
    particularity the facts and circumstances that warrant a
    waiver.[^24] As discussed below, we find that Illinois has met its
    burden with regard to its proposal to share its 800 MHz channels.
    With respect to the 700 MHz frequencies in question, the information
    provided by Illinois in its application does not support a finding
    that the proposed use of the Illinois 700 MHz frequencies by Ameren
    would meet the definition of providing public safety services.

    **A. 800 MHz Public Safety Channels**

8.  We agree with Illinois that Ameren is not eligible for a separate
    authorization to use Illinois's 800 MHz public safety spectrum under
    Section 90.20, and thus could not share Illinois's public safety
    frequencies, unless we waive Section 90.179(a). Among other things,
    Section 90.179(a) is intended to ensure adequate spectrum for each
    service category (*i.e*., public safety and business/industrial),
    and to avoid interference to communications from incompatible
    services.[^25] Here, Ameren will increase the capacity of the
    STARCOM 21 network by contributing its own 800 MHz channels, so that
    public safety and Ameren can share the network without
    interference.[^26] Further, Ameren has accepted a lower priority on
    the network and communications protocols have been established under
    which public safety communications will always have priority on the
    network.[^27] Additionally, Ameren will be brought onto the system
    after Illinois's users.[^28] Moreover, Motorola and Region 13
    support the sharing proposal. Based on the record, we believe it is
    unlikely that the proposed sharing arrangement would result in a
    shortage of 800 MHz public safety spectrum or interference. We
    therefore find that Illinois has demonstrated that the underlying
    purpose of the rule would not be served or would be frustrated by
    application to the present case.

9.  We also find that a grant of this waiver is consistent with prior
    waivers granted with respect to the use of 800 MHz public safety
    frequencies, and the public interest will be served by enabling an
    arrangement whereby Illinois will be able to benefit from the use of
    Ameren's 800 MHz I/B channels.[^29] In sum, we find that Illinois
    has satisfied the waiver criteria with respect to the 800 MHz
    frequencies used in the STARCOM21 network. Because our decision is
    based on the specific application before us, however, we will
    require separate waivers for other utilities seeking to use 800 MHz
    public safety spectrum in the STARCOM21 network. Additionally, if
    Ameren's use were to extend beyond Region 13, we would require
    Illinois to obtain approval from the relevant RPC and to submit a
    new waiver request.

10. We also seek to ensure that grant of this waiver request does not
    adversely impact 800 MHz rebanding. Under the Commission's rebanding
    orders and rules, Sprint Nextel Corporation (Sprint) is required to
    reband Illinois's facilities operating in the pre-rebanding NPSPAC
    band to replacement channels in the new NPSPAC band (former Channels
    1-120).[^30] Ameren's I/B channels, however, are not subject to
    rebanding, and the timing and cost of making any changes necessary
    to integrate Ameren's channels into the STARCOM21 system are
    contractual matters between Illinois, Motorola, and Ameren.
    Therefore, we find grant of this waiver to be independent of band
    reconfiguration: Sprint is not required to pay any costs associated
    with implementing the waiver, nor may Illinois or Sprint rely on
    this waiver to request a delay in meeting its rebanding obligations.

    **B. 700 MHz Public Safety Channels**

11. With respect to the 700 MHz public safety channels, Illinois asserts
    that, under Section 90.523(b),[^31] Ameren is eligible to use the
    channels because "a principal purpose of Ameren's service as an
    operator of critical infrastructure is the protection of life,
    health and property."[^32] By extension, Illinois appears to imply
    that it should be permitted to share its 700 MHz frequencies with
    Ameren pursuant to Section 90.179. For the reasons discussed below,
    we reject Illinois's contention, and deny its request to share the
    state's 700 MHz frequencies with Ameren.

12. We find that Illinois's request does not support a finding that
    Ameren's use of the Illinois 700 MHz frequencies would satisfy the
    requirements of Section 90.523, which "implements the definition of
    public safety services contained in 47 U.S.C. § 337(f)(1)."[^33]
    Under Section 90.179, in order to share its frequencies, Illinois
    must show that Ameren is eligible to hold such frequencies as a
    licensee. Under Section 90.523 of the Commission's rules and Section
    337 of the Act, nongovernmental organizations that provide services,
    the sole or principal purpose of which is to protect the safety of
    life, health, or property, are eligible to hold an authorization for
    a system operating in the 763-775 MHz and 793-805 MHz frequency
    bands for transmission or reception of communications essential to
    providing such services if (and only for so long as) the NGO, among
    other things, operates such authorized system solely for
    transmission of communication essential to providing services the
    sole or principal purpose of which is to protect the safety of life,
    health, or property.[^34]

13. Illinois provides no explanation as to how or why Section
    90.523(b)'s threshold requirements are met by Ameren. Illinois's
    makes only a single, unsupported statement that "a principal purpose
    of Ameren's service as an operator of critical infrastructure" is
    the protection of life, health and property. Beyond this statement,
    however, Illinois provides no grounds for the conclusion that
    Ameren's use of the 700 MHz frequencies would meet the requirements
    of Section 90.523 and, by extension, Section 337 of the Act.
    Accordingly, we cannot find that the sole or principal purpose of
    Ameren's service is to protect the safety of life, health, or
    property, nor can we further determine that its operations would be
    "solely for transmission of communication essential to providing"
    such services. Because Illinois does not justify how Ameren's use of
    700 MHz public safety frequencies, particularly in the course of its
    normal operations as a provider of electric and gas utility service,
    would meet the definition of "public safety services," we must deny
    Illinois's request.

# conclusion

14. For the reasons stated herein, we grant the Waiver Request in part
    with respect to Illinois's 800 MHz public safety channels and deny
    the Waiver Request in part with respect to the 700 MHz public safety
    channels.

# Ordering Clauses 

15. IT IS ORDERED that pursuant to Sections 4(i), 303(r) and 337 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r)
    and 337, and Sections 90.179(a) and 90.523 of the Commission's
    rules, 47 C.F.R. §§ 90.179(a), 90.523, the Waiver Request by the
    State of Illinois is GRANTED IN PART AND DENIED IN PART to the
    extent indicated herein.

16. 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 and
    0.392.

    FEDERAL COMMUNICATIONS COMMISSION

    Derek K. Poarch\
    Chief\
    Public Safety and Homeland Security Bureau

[^1]: Request for Waiver of Section 90.179 of the FCC's Rules by Ameren
    in the State of Illinois (Dec. 20, 2006) ("Waiver Request").

[^2]: 47 C.F.R. § 90.179(a).

[^3]: Illinois has been issued licenses for 800 MHz channels in the
    Public Safety Radio Pool, including NPSPAC channels, for use in its
    statewide communications system. Illinois also utilizes 700 MHz
    frequencies authorized under a statewide narrowband license,
    WPTZ798.

[^4]: Waiver Request at 3, 23.

[^5]: *Id.* at 3.

[^6]: *Id*. at 4.

[^7]: *Id*. Section 90.179(h) permits licensees of frequencies in the
    Industrial/Business Pool to share facilities with Public Safety Pool
    entities and Federal government entities on a non-profit,
    cost-shared basis. 47 C.F.R. § 90.179(h).

[^8]: 47 C.F.R. § 90.179(a).

[^9]: *See* 47 C.F.R. § 90.20.

[^10]: Waiver Application at 5.

[^11]: *Id.* at 6.

[^12]: *Id.*

[^13]: *Id*.

[^14]: *Id*. at 6 (citing Douglas Electric Cooperative, *Order*, 21 FCC
    Rcd 11298 (PSHSB 2006) (*Douglas*); State of South Carolina and
    SCANA Communications, Inc., *Order*, 13 FCC Rcd 8787 (WTB 1997)
    (*SCANA*)).

[^15]: Waiver Request at 19-22, Attachment C (showing the Region 13
    Regional Conformance Review Committee November Meeting Minutes,
    which include the committee's approval of the Illinois proposal to
    add Ameren to the STARCOM21 network subject to certain legal and
    operational requirements being met, including successful
    negotiations between Ameren and Motorola).

[^16]: *See* *id.* at Attachment D (Letter to Kenneth Moran, Acting
    Chief, Public Safety and Homeland Security Bureau, Federal
    Communications Commission, from Richard O'Herron, STARCOM21 System
    Manager, Motorola (dated Nov. 6, 2006)).

[^17]: Waiver Request at 5.

[^18]: 47 C.F.R. § 90.523.

[^19]: 47 U.S.C. § 337(f)(1).

[^20]: 47 C.F.R. § 90.523(b)

[^21]: 47 C.F.R. § 90.523; 47 U.S.C. §§ 337(a), (f)(1).

[^22]: 47 C.F.R. § 1.925(b)(3)(i).

[^23]: 47 C.F.R. § 1.925(b)(3)(ii).

[^24]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969),
    *aff'd*, 459 F.2d 1203 (D.C. Cir. 1972), *cert. denied*, 409 U.S.
    1027 (1972) (*citing Rio Grande Family Radio Fellowship, Inc. v.
    FCC*, 406 F.2d 664 (D.C. Cir. 1968)); Birach Broadcasting
    Corporation, *Memorandum Opinion and Order,* 18 FCC Rcd 1414, 1415 ¶
    6 (2003).

[^25]: *See* *Douglas*, 21 FCC Rcd at 11298 ¶ 7.

[^26]: Waiver Request at 20-21.

[^27]: *Id.* at 6, 20-21.

[^28]: *Id.* at 21.

[^29]: *See, e.g.,* *SCANA*, 13 FCC Rcd at 8792 ¶ 9. *See also*
    Commonwealth of Pennsylvania and GPU Energy, *Order*, 14 FCC Rcd
    14029 (WTB 1999).

[^30]: *See generally* Improving Public Safety Communications in the 800
    MHz Band, WT Docket 02-55, *Report and Order, Fifth Report and
    Order, Fourth Memorandum Opinion and Order, and Order*, 19 FCC Rcd
    14969 (2004) *as amended by Erratum*, 19 FCC Rcd 19651 (WTB PSCID
    2004) and *Erratum,* 19 FCC Rcd 21818 (WTB PSCID 2004);
    *Supplemental Order and Order on Reconsideration*, 19 FCC Rcd 25120
    (2004); *Memorandum Opinion and Order*, 20 FCC Rcd 16015 (2005), as
    amended by *Erratum*, 20 FCC Rcd 18970 (WTB PSCID 2005); *Second*
    *Memorandum Opinion and Order*, 22 FCC Rcd 10467 (2007) as amended
    by *Erratum*, 22 FCC Rcd 13657 (PSHSB 2007).

[^31]: *See* 47 C.F.R. § 90.523(b).

[^32]: Waiver Request at 5.

[^33]: 47 C.F.R. § 90.523.

[^34]: *See* 47 U.S.C. § 337(f)(1); 47 C.F.R. § 90.523(b).