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 Federal  Communications  Commission  DA  04-  3691 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 TELEX  COMMUNICATIONS,  INC. 
 Request  for  Waiver  To  Allow  The  Use  Of  Certificated  Wireless  Intercom  Equipment  at 
 Nuclear  Facilities  for  Security  Operations  near  Reactors 


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 ORDER 
 Adopted:  November  23,  2004  Released:  November  29,  2004 


 By  the  Chief,  Public  Safety  and  Critical  Infrastructure  Division,  Wireless  Telecommunications  Bureau: 
 1.  Introduction.  We  have  before  us  the  above-  captioned  request  for  waiver  filed  by  Telex  Communications,  Inc.  (  Telex).  1  Telex  seeks  a  blanket  waiver  of  the  Commission's  Rules  to  permit 
 operation  of  its  equipment  2  at  certain  nuclear  facilities  in  spectrum  reserved  for  over-  the-  air  television  broadcasting.  3  For  the  reasons  discussed  herein,  we  deny  Telex's  waiver  request. 


 2.  Background.  Telex  is  a  manufacturer  of  wireless  intercom  and  telecommunications  equipment.  4  On  March  13,  2003,  Telex  filed  a  request  for  special  temporary  authority  (STA)  with  the 
 Experimental  Licensing  Branch  of  the  Commission's  Office  of  Engineering  and  Technology  (OET)  to  permit  immediate  and  temporary  use  of  certain  Telex  wireless  headsets  and  intercom  products  at  nuclear 
 facilities  in  the  continental  United  States.  5  The  STA  was  granted  on  April  17,  2003,  and  subsequently  extended.  6  Telex  indicates  in  its  waiver  request  that  the  initial  experimental  STA  was  granted  by  OET 
 contingent  upon  Telex  seeking  a  waiver  for  permanent,  long-  term  use  of  its  devices  at  nuclear  facilities  in  the  United  States.  7 


 1  See  Request  for  Special  Waiver  filed  on  May  6,  2003  by  Telex  Communications,  Inc.  (Telex  waiver  request). 
 2  The  specific  Telex  model  numbers  listed  in  the  waiver  request  are  BTR300,  BTR500,  BTR600,  BTR700,  BTR800, 
 TR300,  TR500,  TR600,  TR700,  TR800,  and  TR825.  Id.  at  3-  4.  3 
 The  requested  frequency  bands  of  operation  are  the  174-  216  MHz,  470-  608  MHz  and  614-  806  MHz  bands,  which  correspond  to  TV  channels  7-  13,  14-  36,  and  38-  69,  respectively.  See  47  C.  F.  R.    73.  603(  a)  for  numerical 


 designation  of  television  channels.  4 
 See  Telex  waiver  request  at  1.  5 
 See  Experimental  Call  Sign  WB9XSY.  See  also  STA  file  numbers  0135-  EX-  ST-  2003  and  0169-  EX-  ST-  2004.  6 
 STA  file  number  0135-  EX-  ST-  2003  was  granted  on  April  7,  2003.  In  addition,  STA  file  number  0169-  EX-  ST-2004  was  granted  on  April  7,  2004  and  is  set  to  expire  on  October  7,  2004. 


 7  See  Telex  waiver  request  at  2.  In  comments  filed  after  the  initial  experimental  STA  request  was  granted,  United 
 Telecom  Council  ("  UTC")  indicated  that  it  supported  Telex's  experimental  STA  request.  See  Letter  dated  April  21,  2003  from  Jill  M.  Lyon,  Vice  President  &  General  Counsel,  UTC,  to  Experimental  Licensing  Branch,  Office  of 
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 3.  On  May  6,  2003,  Telex  filed  a  waiver  request  with  the  Commission's  Wireless  Telecommunications  Bureau's  Public  Safety  and  Private  Wireless  Division.  8  As  justification  for  the 
 waiver  request,  Telex  indicates  that,  due  to  heightened  security  measures  at  nuclear  facilities  across  the  country,  all  current  nuclear  facilities  are  seeking  immediate  deployment  of  secure  wireless  intercom 
 systems.  9  In  addition,  Telex  indicates  that  it  supplies  encrypted  audio  wireless  intercom  devices  to  virtually  all  of  the  nuclear  facilities  in  the  United  States.  10  Further,  Telex  indicates  that  the  equipment 
 will  be  deployed  inside  the  nuclear  facilities  shielded  containment  vessel  or  in  the  cooling  containment  areas  of  the  plants,  which  will  substantially  attenuate  all  the  emissions  outside  the  nuclear  facilities.  11 
 Telex  indicates  that  the  equipment  listed  in  its  waiver  request  is  certificated  under  the  equipment  authorization  provisions  of  the  Commission's  rules  for  use  by  entities  eligible  under  Part  74  of  the 
 Commissions  Rules.  12  Telex  recognizes  that  entities  which  operate  Telexs  equipment  at  nuclear  facilities  fail  to  satisfy  the  eligibility  requirements  contained  in  Part  74  of  the  Commission's  Rules.  13  As  a 
 result,  Telex  seeks  waiver  of  the  Commission's  rules  to  establish  permanent  blanket  licensing  authority  for  Part  90  entities  eligible  for  Business/  Industrial  licenses  to  deploy  its  equipment  on  television 
 broadcasting  spectrum  at  nuclear  facilities  nationwide  on  a  permanent  basis. 
 4.  Discussion.  The  Commission  will  grant  a  waiver  of  its  rules  if  it  is  shown  that  (i)  the  underlying  purpose  of  the  rule(  s)  would  not  be  served  or  would  be  frustrated  by  application  to  the  instant 


 case,  and  that  a  grant  of  the  requested  waiver  would  be  in  the  public  interest;  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.  14  Based  on  the  record  before  us,  we  believe  that  Telex  has  not  made  the  requisite  showing  for  grant  of  a  blanket 
 waiver. 


 Engineering  and  Technology  at  1  (UTC  Letter).  UTC  indicated  that  the  Telex  equipment  has  been  in  use  at  nuclear  facilities  for  some  time,  generally  without  the  knowledge  of  telecommunications  network  managers  for  the  parent 
 utilities  and  that,  once  the  operation  was  discovered,  the  need  for  an  STA  and  a  permanent  rule  waiver  was  self-evident.  It  also  stated  that  it  did  not  anticipate  that  use  of  the  Telex  equipment  at  nuclear  power  plants  would  cause 
 interference  to  broadcast  operations  because  a)  they  would  be  used  mostly  inside  heavily  protected  containment  buildings;  and  b)  nuclear  power  plants  generally  are  located  far  from  population  centers,  on  large  tracts  of  land. 
 UTC  also  said  that  it  would  fully  support  an  anticipated  permanent  request  for  waiver  of  the  Commission's  rules  to  permit  nuclear  plant  employees  use  of  the  equipment  within  nuclear  power  plants. 
 8  The  Commission  reorganized  the  Wireless  Telecommunications  Bureau  effective  November  13,  2003,  and  the 
 relevant  duties  of  the  Public  Safety  and  Private  Wireless  Division  were  assumed  by  the  Public  Safety  and  Critical  Infrastructure  Division.  See  Reorganization  of  the  Wireless  Telecommunications  Bureau,  Order,  18  FCC  Rcd 


 25414,  25414    2  (2003).  9 
 See  Telex  waiver  request  at  2.  10 
 Id.  11 
 Id.  12 
 See  Telex  waiver  request  at  1.  See  also  47  C.  F.  R.    2.901-  2.1093.  13 
 See  Telex  waiver  request  at  1  n.  1.  See  also  47  C.  F.  R.    74.  801.  14 
 See  47  C.  F.  R.    1.  925(  b)(  3). 
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 5.  Section  2.106  of  the  Commission's  rules  contains  the  table  of  frequency  allocations.  15  Within  the  table  of  frequency  allocations,  174-  216  MHz,  470-  608  MHz,  and  614-  806  MHz  frequency  bands  are 
 reserved  for  primary  use  by  over-  the-  air  television  broadcasting  entities  which  are  regulated  under  Parts  73  and  74  of  the  Commission's  rules.  16 


 6.  Telex  requests,  in  essence,  that  equipment  certified  for  use  under  Part  74  of  the  Commissions  Rules  by  broadcast  auxiliary  stations  now  be  regulated  under  Part  90  of  the  Commission's  Rules  to  permit 
 the  blanket  authorization  of  the  operation  of  these  devices  at  nuclear  facilities  nationwide.  Telex  argues  that  grant  of  a  waiver  would  not  frustrate  the  purpose  of  the  Part  73  and  Part  74  rules  because  no 
 interference  would  occur  outside  the  nuclear  facility.  17  It  states  that  this  is  the  case  because  the  equipment  will  be  used  only  inside  the  facilities  shielded  containment  vessel  or  cooling  containment  area,  except 
 possibly  during  brief  periods  when  the  doors  to  those  facilities  are  opened  for  refueling.  18  In  its  comments  to  the  STA  request,  however,  UTC  pointed  out  that  refueling  operations  are  the  most  common 
 use  of  hands-  free  headsets.  19  Telex  itself  concedes  that  signal  attenuation  outside  the  reactor  areas  would  vary  from  facility  to  facility.  20  In  addition,  we  question  whether  we  can  rely  with  certainty  on  Telex's 
 representations  regarding  the  actions  of  nuclear  power  plant  workers  that  Telex  neither  represents  nor  controls. 


 7.  Also,  Telex  has  not  demonstrated  that  Part  90  frequencies    for  which  nuclear  facilities  are  eligible    would  not  suffice  to  provide  the  kind  of  communications  services  asserted  to  be  necessary  in 
 such  facilities.  Moreover  Telex  has  not  shown  that  it  is  incapable  of  adapting  the  instant  equipment    or  producing  new  equipment    to  provide  the  same  functionality  on  Part  90  frequencies.  Finally,  Telex  has 
 not  shown  that  there  is  no  currently  available  equipment,  which  operates  on  Part  90  frequencies,  that  would  safely  satisfy  the  communications  requirements  of  nuclear  facilities. 


 8.  We  conclude  that  a  blanket  waiver  authorizing  use  of  the  subject  Telex  equipment  at  all  nuclear  facilities  in  the  continental  United  States  is  not  supported  by  the  record  currently  before  us.  We 
 therefore  deny  the  Telex  request.  Nuclear  facilities  differ  in  their  designs  and  procedures,  and  in  their  proximity  to  urban  areas  and  over-  the-  air  broadcasters.  We  believe  that  we  would  need  to  evaluate  the 
 relevant  technical  criteria    particularly  the  frequencies  proposed  to  be  used  at  the  facility  vis-  -  vis  the  channels  being  used  by  local  broadcasters    and  the  safeguards  taken  by  each  facility  to  avoid  interference 


 15  See  47  C.  F.  R.    2.106. 
 16  See  generally  47  C.  F.  R.    73.  1-  73.7005,  74.  1-  74.1290. 
 17  See  Telex  waiver  request  at  2. 
 18  Id. 
 19  See  UTC  letter  at  1. 
 20  See  Telex  waiver  request  at  2. 
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 to  over-  the-  air  broadcasting  before  we  could  rule  on  a  particular  waiver  request.  Thus,  were  we  to  grant  such  waivers,  the  requests  would  each  require  a  detailed  technical  analysis  before  they  could  be  granted.  21 
 9.  Accordingly,  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  Commissions  Rules,  47  C.  F.  R.    1.925,  the  waiver  request  filed 
 by  Telex  Communications,  Inc.  on  May  6,  2003  IS  HEREBY  DENIED. 
 10.  This  action  is  taken  under  delegated  authority  pursuant  to  Sections  0.131  and  0.331  of  the  Commissions  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 
 21  We  note  that  there  appear  to  be  several  discrepancies  between  the  operational  specifications  of  the  equipment 
 listed  in  Telex's  waiver  and  the  operational  specifications  listed  on  Telexs  equipment  authorizations.  Telex  should  be  aware  that  if  the  equipment  specified  in  the  waiver  request  has  been  altered  in  any  way  it  will  be  required  to  file 


 an  application  for  a  new  equipment  authorization.  See  47  C.  F.  R.    2.  932(  a).  The  following  table  references  the  model  numbers,  corresponding  equipment  authorizations  and  apparent  discrepancies. 


 Telex  Model  No.  (Equipment 
 Authorization  No.) 
 Data  from  equipment  list  attached  to  waiver  request  Data  from  equipment  authorization 


 BTR700  (B5DM516)  Freq  Band:  470-  608  MHz,  614-  740  MHz 
 Emission  Designator:  190KF1E 
 Freq  Band:  518-  608  MHz 
 Emission  Designator:  160KF3E 


 BTR800  (B5DM514)  Freq  Band:  470-  608  MHz,  614-  740  MHz 
 Emission  Designator:  190KF1E 
 Freq  Band:  518-  608  MHz 
 Emission  Designator:  90K0F3E 


 BTR500  (B5DM505)  Emission  Designator:  190KF1E  Emission  Designator:  180KF3E 


 BTR300  (B5DM510)  Freq  Band:  150-  216  MHz 
 Emission  Designator:  190KF1E 
 Freq  Band:  150-  174  MHz 
 Emission  Designator:  20K4F3E 


 TR825  (B5DM517)  Emission  Designator:  190KF1E  Emission  Designator:  74K0F3E 


 TR700  &  TR800  (B5DM515)  Emission  Designator:  190KF1E  Emission  Designator:  91K03F3 
 TR500  (B5DM506)  Emission  Designator:  190KF1E  Emission  Designator:  180KF3E 
 TR300  (B5DM513)  Freq  Band:  150-  216  MHz 
 Emission  Designator:  190KF1E 
 Freq  Band:  174-  216  MHz 
 Emission  Designator:  44K0F3E 
4