Subject: [NEXTEL-1] DUKES COUNTY, MASSACHUSETTS-Waiver of Section 90.20(d)(47) to Use VHF Frequency 166.250 MHz Outside the Regulatory Maximum of 150 miles From New York, N.Y

From: [email-masked]
Date: Thu, 08 Jan 2004 15:24:52 -0500

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

In the Matter of Application of

DUKES COUNTY, MASSACHUSETTS

For Waiver of Section 90.20(d)(47) to Use VHF Frequency 166.250 MHz Outside the
Regulatory Maximum of 150 miles From New York, N.Y. )

FCC File No. 0000819118

MEMORANDUM OPINION AND ORDER

   Adopted:   January 7, 2004 Released:  January 8, 2004

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

1. Introduction.  We have before us a request for waiver of Section 90.20(d)(47)
of the Commission's Rules  filed by the County of Dukes County, Massachusetts,
Office of the Sheriff (Dukes), on June 12, 2002 (Dukes Waiver Request).   Dukes
seeks the waiver in order to utilize frequency 166.250 MHz for public safety
operations 175 miles from New York City.   For the reasons discussed below, we
grant the Dukes Waiver Request.  Furthermore, on our own motion, we grant Dukes
a waiver of Section 2.106, note US11,  of the Commission’s Rules so that it may
utilize frequency 166.250 MHz for public safety operations.
2.  Background.  Frequency 166.250 MHz is allocated to Federal Government
(Government) use on a primary basis.   Additionally, non-Federal Government
(non-Government) operations on this frequency are authorized on a secondary,
non-interference basis to Government operations.   Specifically, non-Government
remote pickup broadcast base and land mobile stations are authorized at points
more than 150 miles of New York City, and non-Government base, fixed and land
mobile stations in the Public Safety Radio Services are authorized at points
within 150 miles of New York City.
3. Dukes is responsible for providing emergency communication services to all
local police, fire and EMS, with all dispatch services emanating from the Dukes
County Sheriff’s Communication Center at Martha’s Vineyard Airport in Martha’s
Vineyard, Massachusetts, approximately 173 miles from New York City.   Dukes
asserts that in an effort to overcome the problem of radio “dead spots” created
by the hilly terrain on the west side of the island, it constructed an antenna
tower on the highest hill in the area, and is in the process of installing
antennas.  However, Dukes asserts that it is experiencing frequency congestion
that could be overcome by use of frequency 166.250 MHz.   Thus, Dukes requests a
waiver of Section 90.20(d)(47).
4. In conjunction with its waiver request, Dukes has filed a memorandum from the
International Municipal Signal Association (IMSA), an FCC-certified frequency
coordinator for the Public Safety Pool, supporting Dukes’ request.   IMSA states
that allowing Dukes to use frequency 166.250 MHz is “an ideal solution to the
difficult problem of finding a suitably clear Public Safety channel for an
island with huge seasonal population differentials and thus communications
needs.”   IMSA further indicates that “[e]xtensive searching revealed that the
extreme congestion in the VHF bands and the susceptibility of Martha’s Vineyard
to radio interference from Cape Cod, Rhode Island, Connecticut and Long Island,
NY based stations preclude…frequency coordination for a Fire or EMS channel, and
for inter-service frequencies from other public safety [frequency
coordinators].”   IMSA also submitted an amendment to its memorandum, including
an attachment setting forth the public safety frequencies, and demonstrating
that none of these frequencies are available or technically feasible.
Furthermore, given its location (four miles off the southern coast of
Massachusetts) and proposed power level (10 watts total power output for the
base station), granting the captioned application “would cause no greater impact
on [remote pickup broadcast licensees]” as compared to the impact from higher
power public safety licensees within 150 miles of New York City.   In this
connection, on October 8, 2003, Dukes filed letters of concurrence from Hall
Communications, Inc. and Sandab Communication, LTD, co-channel licensees
operating on frequency 166.250 MHz in New Bedford, Massachusetts, and
Barnstable, Massachusetts, respectively, acceding to Dukes’ proposed operations.

5. Discussion.  To obtain a waiver of the Commission's Rules, a petitioner must
demonstrate that a grant of the waiver would be in the public interest and the
underlying purpose of the rule(s) would be frustrated or not served by
application to the present case.   Alternatively, a petitioner must show that,
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
that the applicant has no reasonable alternative.  Based on the record in this
proceeding, we find that the request for waiver of Section 90.20(d)(47) of the
Commission's Rules is warranted because Dukes has demonstrated that it is faced
with unique factual circumstances such that application of the rule would be
contrary to the public interest, and Dukes has no reasonable alternative.
6. We find that Dukes’ geographical area of operation presents unique factual
circumstances.  In this regard, we acknowledge Dukes’ representation that it is
attempting to remedy the problem of radio dead spots due to the hilly terrain in
certain areas of Martha’s Vineyard.  Additionally, we credit IMSA’s contention
that the huge seasonal population differentials have resulted in unique
communications needs.  Furthermore, the susceptibility of Martha’s Vineyard to
radio interference from four different areas—namely, Cape Cod, Rhode Island,
Connecticut and Long Island, N.Y.—also place Martha’s Vineyard in a unique
situation.  We also are persuaded that granting the requested waiver is in the
public interest because it would significantly enhance Dukes' coverage, system
reliability, and ability to dispatch emergency communications in the Martha’s
Vineyard area, thereby promoting effective public safety communications.
7. In addition, we find that Dukes has no reasonable alternative.  In this
regard, we note IMSA's assertion, supported by an extensive search of the Public
Safety Pool VHF frequencies, that extreme congestion in the VHF bands and the
susceptibility of Martha’s Vineyard to radio interference from surrounding areas
precluded frequency coordination of a Fire or EMS channel and for inter-service
frequencies from other public safety services to meet the identified
communications need.  We further note that IMSA has provided an annotated
printout of public safety channels from Local Government, Fire, Police, Highway
Maintenance, Emergency Medical, Special Emergency and Forestry Conservation
Radio Services that have been examined and determined to be unavailable or
technically infeasible.   Therefore, we grant Dukes’ request for a waiver of
Section 90.20(d)(47) of the Commission’s Rules.
8. In a related matter, we note that in addition to obtaining a waiver of
Section 90.20(d)(47), Dukes must also obtain a waiver of note US11 to the Table
of Frequency Allocations in Section 2.106 of the Commission’s Rules to operate
on 166.250 MHz.  As discussed above, like Section 90.20(d)(47), note US11
restricts assignment of 166.250 MHz for public safety operations to within 150
miles of New York City.  Although a waiver of note US11 is likewise required,
Dukes has not requested a waiver thereof.  Therefore, on our own motion, we
grant Dukes a waiver of note US11, for reasons discussed above.
9. As noted above, non-Government use of 166.250 MHz is secondary to Government
use.  As such, this waiver is issued subject to the condition that harmful
interference will not be caused to Federal government stations.  Dukes is hereby
advised that Federal government stations may be transitioning to narrowband
operations and most are required to do so by January 1, 2005, i.e., operating
12.5 kHz bandwidth equipment--in some cases using center frequencies "offset"
12.5 kHz from Dukes’ center frequency(s).  Federal government stations are
licensed by the National Telecommunications and Information Administration
(NTIA).  Information on the Federal government's transition to narrowband
operations is available on NTIA's Office of Spectrum Management home page at:
http://www.ntia.doc.gov/osmhome/osmhome.html.  Non-Federal licensees should also
note that operation of "25 kHz equipment" increases the likelihood of causing
interference to Federal government stations.  If interference is caused,
non-Federal users must cease operating and modify operations so as not to cause
harmful interference to Federal government stations.
10. 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 Sections 1.3 and
1.925 of the Commission's Rules, 47 C.F.R. §§ 1.3, 1,925, the Request for Waiver
filed by the County of Dukes County, Massachusetts, on January 18, 2002, IS
GRANTED, as set forth above.
11.   IT IS FURTHER ORDERED, pursuant and Section 4(i) and 309(a) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), 309(a), that the
Licensing and Technical Analysis Branch SHALL PROCESS FCC File No. 0000819118 in
accordance with the Commission’s Rules and this Memorandum Opinion and Order.
Any grant of the captioned application SHALL BE CONDITIONED as set forth in
paragraph 9, above.
12. This action is taken under delegated authority pursuant to Sections 0.131
and 0.331 of the Commission’s Rules, 47 C.F.R. §§ 0.131, 0.331.
     FEDERAL COMMUNICATIONS COMMISSION

     D’wana R. Terry          Chief, Public Safety & Critical Infrastructure
Division                  Wireless Telecommunications Bureau

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