Subject: [NEXTEL-1] STATE OF ALASKA Request For Waiver

From: [email-masked]
Date: Thu, 07 Aug 2003 19:15:14 -0400

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of Applications of
STATE OF ALASKA         File Nos. 000103649         0001036497
Request For Waiver of Sections 2.102(c), 2.103(a) )           0001039631
90.20, and 90.173(c) of the Commission’s Rules  )

MEMORANDUM OPINION AND ORDER

   Adopted:    August 7, 2003 Released:  August 7, 2003

By the Chief, Wireless Telecommunications Bureau:

I. INTRODUCTION

1. In this Memorandum Opinion and Order, we address a Request for Waiver of the
Commission’s Rules (Waiver Request) associated with each of the three captioned
applications of the State of Alaska (“Alaska” or “the State”).   The Waiver
Request seeks to allow (a) the use of non-standard channel centers within the
154.65-156.24 MHz “sub-band” of the VHF Public Safety Pool, and (b) non-Federal
Government use of Federal Government spectrum, and vice versa, for intra-agency
public safety operations.   Given a shared frequency usage agreement, the proposed
system represents a unique partnership between the federal, state and local
governments and is likely to be the first statewide, multi-agency,
multi-jurisdiction public safety VHF trunking system in the United States.  While
there has been shared frequency use of common channels by federal, state, and
local entities for interoperability  in the past, we believe that this proposed
system is the first of its kind wherein an entire system is specifically dedicated
to the sharing of VHF Federal and non-Federal spectrum by federal, state, and
local public safety entities statewide.  Granting the Waiver Request promotes the
Commission’s Homeland Security objectives  and comports with the overall spectrum
utilization goals as outlined in the Spectrum Policy Task Force Report.   Based on
the record of the instant proceeding, we conclude that the Waiver Request
associated with the captioned applications should be granted as set forth below.

II. BACKGROUND

2. In Alaska, given the state’s remote location, vast land mass, and sparse
population, federal, state and local governments rely more on mutual assistance
than is the case in the contiguous forty-eight states.   Specifically, the State
notes that the military plays a defining and critical role in providing support to
civil authorities’ first response and sustained recovery operations, and that
Alaskan communities rely heavily on federal government assistance.   In addition,
the State points out that twenty percent of the nation’s oil production, and
critical U.S. Department of Defense (DoD) installations are located in Alaska,
which further drives the need for federal, state and local partnerships among
public safety entities to provide the public assistance and response required to
ensure public safety and security.   To address land mobile radio communication
needs, a cooperative partnership of federal, state and local government entities
formed the Alaska Land Mobile Radio Executive Council (Council).

3. ALMR Executive Council.  The Council is open to all federal, state and
municipal governmental agencies  and administered by four equal “co-chairs” or
“voting members” who are appointed by (and must be empowered to bind and vote for)
one of the following groups:  federal DoD, federal non-DoD,  the State of Alaska,
and the Alaska Municipal League (129 cities and 14 boroughs).  Under the direction
of the Council, a cooperative partnership of federal, state and local government
entities initiated the Alaska Land Mobile Radio Project (ALMR), which explored
various methods to resolve interoperability  and other communications difficulties
facing federal, state and local public safety entities in Alaska.

4. To meet the partnership’s unique spectrum needs, Alaska states that the Council
reviewed three primary solutions:  (1) create two independent trunked systems
(i.e., use existing trunked systems and implement new trunked systems without
regard to a common interface standard); (2) implement a dual site system (i.e.,
implement independent new systems using a common air interface standard, share
site locations and tail circuits, use a segregated Federal channel plan and a
segregated non-Federal spectrum plan); and (3) create one single shared
infrastructure trunked very high frequency (VHF) band system, where state and
federal users would share all repeaters, RF sites, towers, dispatches, and tail
circuits.   The Council concluded that the third solution, a single shared
infrastructure trunked system, would best meet the need for cost effective,
spectrum efficient, and interoperable public safety radio communications.
Consequently, local, state and federal government agencies have worked together to
implement a single, shared infrastructure wide-area trunked radio system in
Alaska.   Federal, state, and municipal agencies identified and agreed upon a
common migration solution and signed a Memorandum of Agreement (MOA), in April,
2001, to implement and operate the proposed system.

5. The Proposed System (ALMR).  Alaska states that the proposed radio system would
be available to all federal, state and local public safety entities in Alaska,
which would share the communications infrastructure of the system and associated
costs.   Implementation of the ALMR system would occur in five phases (“Phases
0-4”), over a projected five-year period, and the system would consist of a total
of 354 repeaters at 87 sites.   The proposed system, which would utilize Project
25 digital technology,  would pair approximately 1.5 megahertz of non-Federal
Public Safety Pool spectrum in the 154.65–156.24 MHz “sub-band” with an equal
amount of Federal Government spectrum in the 138-144 MHz band, to create a
narrowband (12.5 kHz operations) radio system of one-hundred ten (110) channel
pairs, including eighteen (18) to twenty (20) frequencies reserved for
expansion.   The non-Federal Public Safety Pool spectrum would be used for base
stations while the Federal frequencies would be used for mobile units.   All
entities using the system would have access to all spectrum employed in the system
for daily intra-agency use as well as inter-agency interoperability use during
cross-jurisdictional, mutual aid, and task force incidents involving two or more
participating federal, state, and local public safety entities.   The ALMR system
would also facilitate backwards compatibility to legacy conventional and trunked
systems as well as interface to maritime and air ground assets involved in
emergency response.   Alaska states that Congress has appropriated $15 million in
Fiscal Year 2003 funding for implementation of the ALMR system.

6. Alaska asserts that the proposed ALMR system is in the best interest of its
citizens,  and is both the most spectrally and cost efficient solution to the
needs of Federal and non-Federal first responders.   Alaska states that the
cooperative partnership of state, local and federal public safety entities
expended nearly one million dollars in exploring solutions to its communications
shortfalls and devising the proposed system of shared equipment and costs for the
purpose of enhancing interoperability, increasing operational flexibility and
decreasing costs for public safety first responders.   Further, Alaska asserts
that the proposed system promotes effective public safety communications and
enables the entities sharing the system to communicate with one another both on a
day-to-day basis and during emergencies.   Alaska also notes that a shared system
facilitates secure communications between state, local and federal agencies
engaged in homeland defense and security task force missions, which have become a
priority for all public safety entities in the State of Alaska.

7. Captioned applications.  On September 23 and 25, 2002, Alaska filed the
captioned applications for authorization to conduct exclusive (“FB8/MO8”) trunked
operations on numerous frequencies within the VHF Public Safety Pool.   The
captioned applications are three of a total of fifteen applications that the State
anticipates filing in connection with the ALMR system.   Alaska explains that the
captioned applications seek authority for selected sites within Phases 0-2 that
are in more populated areas of the state, given that more users in these areas
require frequencies and because more incumbents in these areas had to be
accommodated.   According to Alaska, the eighteen sites requested in the captioned
applications represent the bulk of the spectrum resource that will be used in the
whole system, i.e., ninety percent of the spectrum resources requested in the
captioned applications will be reused throughout the ALMR system statewide.

8. Request for Waiver of Sections 2.102(c), 90.173(c), and 2.103(a).  The Waiver
Request associated with each of the captioned applications seeks waiver of
Sections 2.102(c),  90.173(c),  and 2.103(a)  of the Commission’s Rules so that
non-Federal entities may utilize the Federal Government spectrum associated with
the proposed system, and vice versa, for day-to-day intra-agency communications.
Grant of the captioned applications requires waivers because these rules restrict
non-Federal Government use of Federal Government spectrum, and vice versa, to
scenarios involving coordination of Federal and non-Federal activities.   Inasmuch
as Alaska seeks to use the subject Governmental frequencies for all of its public
safety communications, regardless of whether the use involves coordinating or
communicating with a Governmental entity, Alaska requires and seeks a waiver of
both Sections 2.102(c) and 90.173(c) to implement its proposed system.
Similarly, waiver of Section 2.103(a) is requested and required, as a policy
matter, because the Federal use of non-Federal Government frequencies would
include intra-agency communications.

9. Request for waiver of Section 90.20. The proposed ALMR system pairs VHF Public
Safety Pool spectrum, which has channel centers spaced every 7.5 kHz, with Federal
spectrum, which has channel centers spaced every 12.5 kHz.  In this connection,
Alaska requests a waiver of Section 90.20(c)(3) of the Commission’s Rules  because
the captioned applications request authority to operate a number of base stations
on Public Safety Pool spectrum using non-standard frequency centers that are
offset +/– 2.5 kHz from standard center frequencies set in the rule.   Alaska also
seeks a waiver because Section 90.20(c)(3) designates certain frequencies for
mobile use that Alaska seeks to use for base stations.   Additionally, Alaska
requests waiver of certain limitations set forth in Section 90.20(d) of the
Commission’s Rules  that designate certain frequencies for specific users.
Because the channels are trunked, the ALMR system would not isolate these
frequencies for specific users; rather, it would give all users on the ALMR system
access to all frequencies on the system.  Thus, Alaska also requests a waiver of
certain limitations delineated therein as to frequencies requested in the
captioned applications that are governed by:  a) Limitation 16, which reserves
certain frequencies for state police agencies; b) Limitation 41, which reserves
applicable frequencies for police emergency communications; and c) Limitation 43,
which reserves applicable frequencies for non-State highway maintenance radio
systems.   We note that a waiver of Limitation 43 is no longer needed because the
Commission deleted this provision after the Waiver Request was filed.

10. On December 20, 2002, the Wireless Telecommunications Bureau’s (WTB) Public
Safety and Private Wireless Division (PSPWD) released a Public Notice seeking
comment on Alaska’s Waiver Request.   All parties that filed comments in response
to the Public Notice support Alaska’s Waiver Request.   In February, 2003, PSPWD
requested that Alaska file a State Interoperability Plan.  In response, on April
22, 2003, Alaska submitted its Interoperability Plan.   On May 21, 2003, PSPWD’s
Licensing and Technical Analysis Branch granted Alaska Special Temporary Authority
(STA) to construct and operate several sites of the ALMR system.   On June 25,
2003, PSPWD requested additional information on Alaska’s captioned applications,
including several questions related to Section 90.187.   On June 30, 2003, Alaska
submitted a response to PSPWD’s request for additional information,  and a
Memorandum of Agreement between DoD and Alaska was filed on July 28, 2003.

III.  DISCUSSION

11. The Commission is responsible for the licensing of radio frequencies to
non-Government entities  and the National Telecommunications and Information
Administration (NTIA) is responsible for the licensing of radio frequencies to
Government departments and agencies.   The Inter-Department Radio Advisory
Committee (IRAC) advises the NTIA in assigning frequencies to U.S. Government
radio stations and in developing and executing policies, programs, procedures, and
technical criteria pertaining to the allocation, management, and use of the
spectrum.   Approximately half of the frequencies requested in the captioned
applications are within the 138-144 MHz band that is allocated exclusively for
Federal Government stations.   The other half of the frequencies requested are
within the 154.65-156.2475 MHz band that is allocated exclusively for non-Federal
Government stations.   By way of clarification, our grants of authority herein
related to non-Federal Government use of Federal Government spectrum are made
subject to the condition that NTIA has approved this non-Federal Government use as
a policy matter.   In addition, our grant of rule waivers related to Federal
Government use of non-Federal Government spectrum is subject to the condition that
any Federal Government entity that uses the non-Federal Government spectrum must
be authorized to do so by NTIA.

12. Pursuant to Section 1.925 of the Commission’s Rules, Alaska may obtain a
waiver of Sections 2.102(c), 90.173(c), and 90.20(c)(3) of the Commission’s Rules
if it demonstrates that:  (1) the underlying purpose of the rules would not be
served or would be frustrated by application to the instant case and that grant of
the requested waivers would be in the public interest; or (2) in view of unique or
unusual factual circumstances, application of the rule(s) would be inequitable,
unduly burdensome, or contrary to the public interest or no reasonable alternative
exists.   Based on our review of the record, including the additional information
submitted in response to PSPWD’s recent request, and the public comments filed in
response to PSPWD’s Public Notice, we conclude that Alaska’s Waiver Request
satisfies all the requirements set forth in Section 1.925.   We discuss the
reasons for our decision more fully below.

13. Underlying Purpose of the Rules.  Sections 2.102(c), 90.173(c)(3), and
2.103(a) serve the important function of facilitating Federal to non-Federal
interoperability, by requiring a finding that the proposed non-Federal use of
Federal spectrum, and vice versa, is necessary for coordination of Government and
non-Government activities.  In this case, however, we agree with Alaska that
granting the Waiver Request will not undermine the purpose of these rules because
the captioned applications propose to pair Federal and non-Federal spectrum to
facilitate repeater operations for a trunked, joint Federal and non-Federal shared
use infrastructure.   Indeed, the Commission encourages voluntary partnering of
FCC-licensed state or local government entities with Federal entities, finding
such partnering is in the public interest for a variety of reasons, including
interoperability, public safety responsiveness to safety of life and safety of
property crises, and spectrum efficiency.   In doing so, the Commission has
expressly noted that developments in trunking technology and other technologies
that maximize spectrum use have made possible radio systems that can accommodate
many users and distinct user groups—each group with its own insulated
communications network—on the same system.   At the same time, however, the
Commission noted that these systems also offer a high level of built-in
interoperability between the distinct user groups sharing a radio system.   Thus,
we find that granting the Waiver Request would make significant strides in Alaska
to further the underlying purpose of these rules. In this connection, we also
consider that Alaska has developed an Interoperability Plan,  and that
facilitating Federal and non-Federal interoperability capability and partnerships
comports with the Homeland Security objectives of the Commission’s Strategic Plan.

14. Section 90.20(c)(3) serves the underlying purpose of promoting efficient use
of the spectrum while preventing harmful interference to licensed operations.  In
particular, Section 90.20(c)(3) designates standard channel centers for public
safety radio operations with VHF band channels spaced every 7.5 kHz.  Waiver of
this rule is necessary because the captioned applications request authority to
operate on nonstandard (as well as standard) center frequencies spaced every 12.5
kHz within the 154.65-156.24 MHz “sub-band” of the VHF Public Safety Pool.  Based
on the record before us, we find that granting the Waiver Request will not
undermine the purpose of this rule because, in this case, 12.5 kHz spacing
facilitates the pairing of non-Federal and Federal spectrum for the spectrally
efficient ALMR system, which will use trunked technology and be designed to serve
the communications needs of all participating public safety agencies.
Furthermore, as discussed in paragraph 15 below, granting the Waiver Request will
not increase the potential for harmful interference. In this connection, these
same considerations support granting the State’s request for waiver of Sections
90.20(d)(16) and 90.20(d)(41) so that these frequencies are available for the
statewide trunked system.  Given that the limitations on these frequencies are for
the benefit of state police agencies or police generally, we also note the support
of the Alaska Department of Public Safety.

15. Based on the information before us, we believe that grant of Alaska’s request
is also consistent with Section 90.20(c)(3) because it will not result in harmful
interference to other licensees.  First, the Association of Public Safety
Communications Officials, Inc. (APCO), an FCC-certified frequency coordinator for
the Public Safety Pool, frequency coordinated the captioned applications. These
reflect APCO’s certification for each frequency and location that Alaska meets the
requirements for trunked, exclusive operation within a protected service area
(e.g., that Alaska obtained the written consent of all licensees that may be
affected by the operations proposed in the captioned applications).   For each
non-standard channel center requested, the record also includes spread sheets
detailing APCO’s analysis.   Furthermore, Alaska certifies that the three
captioned applications meet Section 90.187 and the record includes letters of
consent from incumbent licensees.   As such, based on the record before us, we
conclude that grant of the Waiver Request would not result in interference to
incumbent licensees.  Moreover, given that each of the proposed channels is
bounded on both sides by Public Safety Pool channels, no other service category
will be affected.   We also note that Alaska encompasses more land area than any
other state in the union, including large isolated areas.  Taken with the State’s
geographical separation from the continental United States and the continued
availability of other VHF Public Safety Pool frequencies in Alaska, we find that
the requested use of the subject frequencies would not frustrate Section
90.20(c)(3)’s goal of preventing harmful interference.   Furthermore, given that
the captioned applications meet the requirements for trunked, exclusive operation
within a protected service area, we find that waiver of Section 90.20(c)(3) is
justified to permit base operations on frequencies designated for mobile use.

16. Finally, we note that the use of non-standard channel centers raises concerns
as to whether Alaska’s proposed system would be adequately protected from new
applicants.  Section 90.187 of the Commission’s Rules confers to licensees of
exclusive trunked systems a protected service area whereby a new applicant whose
interference contour overlaps the service contour of the trunked licensee will
only be assigned the same channel as the trunked licensee if the trunked licensee
consents.   Alaska states that Section “90.187 will sufficiently protect ALMR from
new applicants that apply for standard frequencies under the Commission’s Rules
provided ALMR non-standard frequencies are used for determining frequency
separation.”   In this connection, Alaska notes that its requested frequencies
constitute only a portion of the available VHF Public Safety Pool frequencies  and
that if new users cannot be accommodated in another band, or “if ALMR could not be
protected by applying the criteria set forth under [Section] 90.187, [Alaska]
believe[s] there to be sufficient spectrum available and unaffected by the off set
required to pair non-federal spectrum to federal narrowband spectrum in the other
remaining VHF bands.”   Based on the record before, us, we find that Alaska has
satisfied our concerns.  Moreover, we also expect that the public safety
coordinators will make every attempt to assign other portions of the available VHF
Public Safety Pool frequencies in the State of Alaska when processing any future
requests for spectrum that are outside of the ALMR system.  Given the availability
of VHF Public Safety Pool frequencies in the other “subbands” and to minimize the
potential for interference, we will require applicants, for new or modified
facilities, to satisfy Section 90.187 relative to the nonstandard channel centers
authorized to Alaska as well as to the standard channel center that is 2.5 kHz
above or below each nonstandard channel.

17. Unique Circumstances.  We also find that the Waiver Request demonstrates
unique circumstances, given Alaska’s geographical distance from the lower
forty-eight contiguous states, the vastness of the land mass to be covered,
together with the state’s sparse population.   In this connection, we consider
Alaska’s contention that, in the event of a natural or man-made disaster, in-state
resources must provide all first response and recovery operations for up to two
weeks until out-of-state help arrives.   We also find persuasive Alaska’s point
that these circumstances highlight the need for radio communication across
jurisdictional lines on a daily basis.   Alaska’s situation is further unique in
that the military plays a defining and critical role in providing support to first
responders and sustained recovery operations.   These factors demonstrate that
Alaska faces unique public safety operational challenges and has unique response
needs and procedures.  Moreover, we believe Alaska’s proposed system provides a
unique opportunity to advance the potential for shared federal, state, and local
public safety systems in Alaska.  In this connection, we note that the ability to
pair Federal and non-Federal VHF public safety spectrum in Alaska also represents
a unique opportunity to advance public safety radio communication.

18. Public Interest.  We conclude that granting Alaska’s request is in the public
interest. Alaska represents that any interested federal, state or local public
safety entity will have full access to the ALMR system pursuant to the terms of
the MOA.   Thus, grant of Alaska’s Waiver Request would be in the public interest
because it provides for the communications needs of the public safety community.
Additionally, we find that Alaska’s proposed use of trunking technology on the
ALMR system serves the public interest.  The Commission has previously determined
that permitting trunked operations on shared spectrum would allow licensees to
construct systems that are more efficient than conventional systems, thereby
allowing licensees to use fewer channels to provide the same communications
capability.   Thus, the ALMR system will provide users with the opportunity to
reap the benefits of increased utilization of radio channels.

19. We further find it significant that the operating authority sought by Alaska
will expand and improve the coverage of statewide public safety communications by
allowing public safety entities on the state, local and federal levels to
communicate with one another with improved efficiency.  In this connection, the
Commission previously found that a shared statewide trunked system that
facilitates federal, state, and local interoperability communications, while also
facilitating day-to-day inter-agency communications, demonstrates a sufficient
basis for building the system.   Thus, we are concerned that denying the Waiver
Request could undermine efforts in the public safety community to promote shared
systems that foster interoperability and operational flexibility.  Equally
noteworthy is the fact that public safety entities will be sharing costs and
decreasing expenses, a factor that likewise furthers the public interest.  In
summary, we find that the essential and critical nature of public safety
communications and the benefits associated with public safety interoperability
weigh in favor of granting a waiver in the instant case.  We further find that
Alaska has demonstrated that the improved efficiencies in public safety
communications associated with the proposed system will allow Alaska to perform
its critical public safety responsibilities, such as protection of life and
property, more effectively and efficiently, thereby serving the public interest.

20. Lack of Reasonable Alternatives.  We also find that the record in this
proceeding demonstrates that Alaska has no reasonable alternatives within the
existing Rules to implement the proposed system.  As noted above, Alaska has
expended substantial resources considering at least three plans to resolve the
communications difficulties that plague public safety officials in the State.
Alaska asserts that implementation of the first plan, which called for the
creation of two independent trunked systems, would hamper interoperability and
increase costs by approximately forty-five million dollars ($45 million).   Alaska
further states that implementation of the second plan, a dual site system, would
result in increased expenditures of over twenty-four million dollars ($24
million), and present other difficulties such as the increased possibility of
transmitter noise.   Thus, of the three plans considered, Alaska submits that only
the proposed ALMR system at issue constitutes a viable solution.   We are
persuaded that Alaska has made a good faith effort to explore reasonable
alternatives and has found none.

21. Loading.  As discussed above, the ALMR system will utilize approximately
ninety (90) frequencies of non-Federal VHF Public Safety Pool spectrum.  Pursuant
to Section 90.187(e) of the Commission’s Rules, an applicant seeking greater than
ten (10) channels at a site must demonstrate that each channel will be loaded by a
minimum of fifty (50) units within five years.   Because Alaska seeks the use of
90 frequencies, its system must therefore be loaded to a minimum of 4500 units.
Alaska submits that the ALMR system will support 13,867 subscribers.   These
anticipated subscribers will consist of 5601 Federal users who will employ 900
mobiles, 4575 portables, and 126 land stations.   Additionally, the system will be
comprised of 8266 non-Federal users employing 3306 mobiles, 4546 portables, and
414 land stations.   Inasmuch as the anticipated number of units in the ALMR
system utilizing the requested 90 VHF Public Safety Pool frequencies far exceed
the minimum requirement of 4500 units, we find that Alaska’s proposed system meets
the loading requirements of Section 90.187(c).  Given the large amount of spectrum
associated with the ALMR system, we will add a condition to the extended
implementation schedule whereby channels not loaded to at least fifty (50) units
at the end of the extended implementation period cancel automatically.

22. Extended Implementation.  As noted, the three captioned applications reflect
selected sites within Phases 0-2 (2002-2004), and Alaska anticipates filing a
total of fifteen applications for the proposed ALMR system, which is to be built
in five phases (2002-2006).  Generally, licensees of stations operating in the
PLMR service are afforded a one-year period in which to place such stations in
operation.   In this connection, Alaska requests an extended implementation period
for construction of the ALMR system.

23. Section 90.155(b) of the Commission’s Rules permits governmental entities in
the Public Safety Pool to seek extended implementation pursuant to Section
90.629,  which in turn allows applicants to be authorized a period of up to five
(5) years for constructing and operating a system.  The applicant must describe
the proposed system, state the amount of time necessary for construction and
operation, and identify the number of base stations to be constructed and placed
in operation during each year of the extended construction period.   Furthermore,
the applicant must demonstrate that the proposed system will require more than
twelve (12) months to construct because of: 1) the purpose, size or complexity of
the proposed system; or 2) the system is to be part of a coordinated or integrated
wide area system; or 3) the applicant is required by law to follow a multi year
cycle for planning, approving and funding the system.   As discussed more fully
above, Alaska has provided detailed information on the proposed ALMR system,
including a description of the number of mobiles and base station sites,  and
details of its five-year implementation phases.   Furthermore, the record
demonstrates that Alaska’s proposed system will cater to federal, state and local
public safety entities state-wide, and that the proposed ALMR system is
sufficiently massive and complex to justify the extended implementation period.
Thus, based on the record before us, we find that Alaska has justified the
requirements for an extended implementation period.  Given that the three
captioned applications reflect selected sites within Phases 0-2, and that Alaska
anticipates filing a total of fifteen applications over five phases, we clarify
that the extended implementation schedule is as set forth in Alaska’s Extended
Implantation Schedule.  As noted in paragraph 21 above, any discrete frequencies
not loaded to at least fifty (50) units at the end of the extended implementation
period cancel automatically.  For administrative convenience, December 31st will
be the operative date for each yearly benchmark, with December 31, 2006 being the
end of the extended implementation period.

24. Authorizations granted under extended implementation are conditioned upon the
licensee constructing and placing its system in operation within the authorized
implementation period and in accordance with an approved implementation plan of up
to five years.  Licensees must notify the Commission annually using Form 601, that
they are in compliance with their yearly station construction commitments, but
licensees may request amendment to these commitments at the time they file their
annual certification.

25. Sections 90.179, 90.421.  Alaska notes that it will be sharing the ALMR
facilities with other Public Safety Pool eligibles and federal entities on a
non-profit, cost shared basis pursuant to Section 90.179 of the Commission’s
Rules.   Alaska also envisions sharing the use of the radio facilities with
non-Public Safety Pool eligibles, such as utilities, “but only to promote response
and interoperability during incident or emergency response.”   Section 90.179
generally does not authorize public safety licensees to share facilities operating
on Public Safety Pool spectrum with entities (other than federal entities) that
are ineligible to be licensed on such spectrum.   In this connection, Alaska
states that the Council (which also serves as the State Interoperability Executive
Committee)  “will administer and manage these requirements and will certify and
justify this type of sharing with the Commission as stipulated in the State’s
Interoperability Plan.”   Because the Commission generally does not review
interoperability plans, we clarify that in the event that Alaska seeks to enter an
agreement, as described in Section 90.179, to share the use of ALMR facilities
with an ineligible entity, Alaska must request a waiver of Section 90.179.   We
also note that Section 90.421 of the Commission’s Rules  authorizes the operation
of mobiles and portables, under certain circumstances, by persons other than the
licensee because these provisions may provide sufficient authority relative to the
need to communicate with utilities etc. for response and interoperability during
incident or emergency response.

26. Conditions of Grant. As we noted previously, Alaska certifies that it has
complied with Section 90.187(b) in that it has fulfilled all frequency
coordination requirements, and has obtained the written consent of all
licensees.   Nonetheless, out of an abundance of caution to incumbent licensees,
we grant Alaska’s Waiver Request subject to the condition that Alaska must pay to
relocate any “affected licensees,”  who were not identified by the frequency
coordination process, that have not consented to Alaska’s request for the relevant
frequencies.   Alternatively, Alaska may resolve any such post-licensing issue by
modifying the ALMR system.   Furthermore, we note that the July 2003 MOA includes
provisions for revocation or termination of frequencies by either the DoD or
Alaska.   Thus, our grant of the Waiver Request is conditional for the duration of
the July 2003 MOA or any successive MOA between the parties.  Termination of the
July 2003 MOA or successive MOA may be grounds for canceling and/or modifying the
station licenses granted under this waiver.  Moreover, upon any revocation or
termination of frequencies under the MOA, Alaska must notify the Commission in
writing of any changes within 30 days and file for license modifications, if
appropriate.   Our grant is also subject to the condition that Alaska meets its
extended implementation schedule; as noted, channels not loaded to at least fifty
(50) units within the extended implementation period cancel automatically without
specific Commission action.   In addition, given that the ALMR system will involve
approximately fifteen applications in total, we clarify that the instant grant of
the Waiver Request is based on the record developed in this proceeding, which is
limited to the three captioned applications.  Thus, the balance of the
applications for the ALMR system must also request waivers of the Commission’s
Rules, as necessary.  We will look favorably, however, on future applications from
Alaska requiring a waiver if the applications are accompanied by a signed
statement certifying that the stations are (1) part of the ALMR statewide system
described herein, (2) in compliance with this Memorandum Opinion and Order and (3)
in compliance with the July 2003 MOA or successive MOA.
IV.  CONCLUSION

27. For the reasons stated herein, we conclude that grant of Alaska’s Waiver
Request is warranted and furthers the public interest.  We agree with Alaska that
the proposed ALMR system is consistent with the Commission’s policy goals of
attaining spectrum efficiency and interoperability, and the larger public interest
goals of public safety, homeland security, and governmental cost-efficiency.   We,
therefore, conditionally grant Alaska’s Waiver Request as indicated herein to
permit it to construct and operate the ALMR system using the standard and
non-standard channels it seeks in the three captioned applications.

V.  ORDERING CLAUSES

28. Accordingly, 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, that the Request for Waiver associated
with each of the captioned applications filed by the State of Alaska, on September
23 and September 25, 2002, IS  CONDITIONALLY GRANTED to the extent indicated
herein.

29. IT IS FURTHER ORDERED that the captioned applications, FCC File Nos.
0001036496, 0001036497, and 0001039631, SHALL BE REFERRED to the Wireless
Telecommunications Bureau, Public Safety and Private Wireless Division, Licensing
and Technical Analysis Branch, for processing consistent with the Commission’s
Rules and this Memorandum Opinion and Order.

30. IT IS FURTHER ORDERED that the Commission certified frequency coordinators for
the Part 90 Public Safety Pool SHALL frequency coordinate applications for VHF
Public Safety Pool frequencies in Alaska in accordance with paragraph 16 of the
instant Memorandum Opinion and Order.

31. IT IS FURTHER ORDERED that the instant Memorandum Opinion and Order, or a
summary thereof, SHALL BE PUBLISHED in the Notice section of the Federal Register.

32. 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

     John B. Muleta
     Chief, Wireless Telecommunications Bureau

------------------------ Yahoo! Groups Sponsor ---------------------~-->
Buy Ink Cartridges or Refill Kits for Your HP, Epson, Canon or Lexmark
Printer at Myinks.com. Free s/h on orders $50 or more to the US & Canada. http://www.c1tracking.com/l.asp?cid=5511
http://us.click.yahoo.com/l.m7sD/LIdGAA/qnsNAA/61FxlB/TM
---------------------------------------------------------------------~->

Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/