Subject: [NEXTEL-1] MILWAUKEE METROPOLITAN SEWERAGE DISTRICT - Request for Waiver to Allow Fixed Operations On a Primary Basis in the 450-470 MHz Band

From: [email-masked]
Date: Thu, 12 Feb 2004 17:51:10 -0500

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

In the Matter of Application of

MILWAUKEE METROPOLITAN SEWERAGE DISTRICT

Request for Waiver to Allow Fixed Operations On a Primary Basis in the 450-470
MHz Band

FCC File Nos. 0001181827, 0001190322

ORDER

   Adopted:  February 11, 2004  Released:  February 12, 2004

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

I. INTRODUCTION

1. We have before us two applications and associated requests for waiver of the
Commission’s rules filed by the Milwaukee Metropolitan Sewerage District
(MMSD).   MMSD seeks authority to operate a fixed wireless Supervisory Control
and Data Acquisition (SCADA) system to monitor and control water levels and flow
within its sewer system.  For the reasons discussed below, we grant MMSD’s
waiver request, with the conditions described herein.

II. BACKGROUND

2. In February 2003, MMSD filed the subject applications for fixed operation at
four locations on four frequency pairs  in the 450-470 MHz band, accompanied by
requests for waiver of Section 90.261(a) and (c) of the Commission’s Rules.
Section 90.261(a) permits fixed use in the 450-470 MHz band only on a secondary
basis to land mobile radio operations.   MMSD requests primary status because
the proposed system would not be able to tolerate excessive interference or
service interruptions that might accompany secondary status.   Section 90.261(c)
limits fixed system omnidirectional antennas to unity gain.   MMSD requests a
waiver of this rule section so that it can use gain antennas in order to
adequately cover the intended service area from the proposed sites.
3. On April 15, 2003, the Wireless Telecommunications Bureau’s former Public
Safety and Private Wireless Division  sought comment on MMSD’s applications and
waiver requests.   We received comments from the Industrial Telecommunications
Association (ITA), the American Mobile Telecommunications Association (AMTA),
and the State of Wisconsin Department of Transportation (WisDOT).  MMSD filed
reply comments.

III. DISCUSSION

4. To obtain a waiver of the Commission's Rules, a petitioner must demonstrate
either that the underlying purpose of the rule(s) would not be served or would
be frustrated by application to the present case and that grant of the waiver
would be in the public interest;  or that, 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.   We believe that MMSD has shown that a
waiver is warranted under the circumstances presented.

5. The Commission allocated spectrum in the 450 MHz band and other bands for
private use in 1949 to meet the nation’s mobile communications needs.   The
primary purpose served by the allotment of Part 90 frequencies was and continues
to be provision of spectrum for land mobile communications.

6. Our rules, however, make allowances for fixed use of certain Part 90
frequencies, but only on a secondary basis to mobile operations.  The purpose of
Section 90.261 was to provide some needed spectrum for fixed operations while,
at the same time, to ensure that the 450-470 MHz band is used primarily for
mobile operations.   The rule affording fixed operations in the 450-470 MHz band
only secondary status is intended to avoid interference to mobile operations.
The purpose of the antenna gain limit also is to protect co-channel mobile radio
operations from interference.   Based on the record before us, we conclude that
grant of MMSD’s request would not frustrate this purpose.  The engineering data
submitted with the request demonstrates that no interference would be caused to
land mobile operations, because MMSD would be the only entity using these
channels in the Milwaukee area (except as discussed below regarding WisDOT), and
there is sufficient physical separation between MMSD’s proposed operations and
all licensed adjacent channel operations.   Moreover, no commenter has suggested
that grant of the request would leave inadequate 450-470 MHz spectrum available
to accommodate mobile communications needs in the Milwaukee area.

7. Licensees operating on a secondary basis in the 450-470 MHz spectrum must
cease operations if their transmissions interfere with the mobile operations of
primary users of private land mobile spectrum.   We note that MMSD is requesting
primary status to allow it to work with other licensees to resolve any
interference issues, rather than being forced to shut down immediately at some
point in the future if interference problems with any existing or new licensee
develop.   We find it significant that MMSD acknowledges that primary status
does not necessarily guarantee exclusivity of the channels and understands that
sharing of the channels might be necessary.

8. ITA and AMTA oppose granting MMSD primary status, on the grounds that it
would set a damaging precedent by opening the door for other entities to file
similar waiver requests, thus creating an environment for further degradation in
the band.   We reject the suggestion that no waiver should be granted on the
grounds that granting too many waivers would undermine the purpose of the
rules.  Any future waivers of these rules would be based on the particular
circumstances presented in the waiver requests.  In the event that we receive a
number of waiver requests in the same area, the cumulative effect  of granting
the requested relief would be a relevant factor in our determination of whether
grant of such relief would be in the public interest.

9. Regarding reasonable alternatives, ITA states other spectrum alternatives not
necessitating a waiver are available to MMSD.  In this connection, ITA
identifies VHF spectrum in the 170, 173, 217-219 MHz frequency bands as possible
alternatives.   Similarly, AMTA notes that there is spectrum designated for
telemetry operations as set forth in Section 90.238 of the Commission’s Rules,
and that Multiple Address System (MAS) 900 MHz spectrum  is specifically
designed for point-to-multipoint transmissions and appears ideally suited for
the system described.   MMSD states that it considered the VHF spectrum
identified by ITA, but, because the spectrum is shared by both the Public Safety
and Business Pools, it rejected their use due to potential interference issues
and antenna size considerations.   MMSD states that it also experimented with
the 900 MHz MAS spectrum and found that the propagation characteristics of the
band limited coverage at many locations, which would significantly increase
infrastructure costs at some sites.   While cost alone does not make the
application of the Commission's Rules inequitable, unduly burdensome or contrary
to the public interest, it can be a relevant factor in our determination of
whether grant of a waiver is appropriate under the circumstances presented.

10. Further, we conclude that grant of the subject request is in the public
interest.  In this regard, we note that MMSD’s sewerage system consists of 350
miles of pipes and valves, deep tunnel storage, pumping stations, and two
treatment facilities.   The flow in the system and related water levels must be
continuously monitored and controlled, in order to comply with environmental
regulations, protect the environment and public health, and mitigate flooding.
MMSD contends that its proposed system would be one of the primary methods used
to monitor and control its sewer system, and as such could not tolerate
interference from other users.   Water services, including systems to handle
sewage and wastewater, are primary components of the nation’s critical
infrastructure.   The continued use of spectrum is essential to the current and
future operations of these industries.   Without adequate radio spectrum, we are
concerned that providers of energy, water and railroad services would be unable
to address major service interruptions due to natural disaster, equipment
malfunctions or in some cases, terrorist activities.   Thus, grant of MMSD’s
waiver request promotes the Commission's homeland security objectives.

11. We nonetheless note that WisDOT objects in particular to MMSD’s proposed use
of frequency pairs 453/458.475 and 453/458.925 MHz.   WisDOT is the only
co-channel license on those frequencies in the Milwaukee area.  Specifically, it
is licensed for temporary mobile use of these two frequency pairs statewide
under Call Sign KNJW977, and argues that licensing MMSD on a primary basis would
preclude WisDOT’s use of these frequencies in the Milwaukee area.   Because
WisDOT’s use of the temporary statewide channels would be highly localized and
WisDOT has a fixed system operating in the area on other frequencies, we believe
that MMSD’s use of the channels would have little to no effect, adverse or
otherwise, on WisDOT’s operations.  In addition, MMSD states that it will work
with WisDOT to minimize the impact on WisDOT’s temporary operations.   We
therefore agree with MMSD that WisDOT’s statewide temporary mobile authorization
should not preclude MMSD’s use of the channels.   We also believe, however, that
grant of MMSD’s request should not operate to reduce WisDOT’s flexibility under
its existing license for Call Sign KNJW977.  Therefore, we will impose the
following conditions on MMSD’s license:  1) MMSD must accept interference from
WisDOT’s operations under Call Sign KNJW977; 2) MMSD’s operations must not
interfere with WisDOT’s use of its statewide temporary mobile frequencies
(453/458.475 and 453/458.925 MHz) and, if warranted, MMSD must develop a
mutually agreeable plan with WisDOT to mitigate interference.

12. We conclude, based on the record before us, that the MMSD waiver request
should be granted with the conditions as set forth herein.   The operation of
MMSD affects the health, safety and security of approximately one million people
in southeastern Wisconsin.   We conclude that granting the waivers serves the
public interest because the proposed SCADA system protects the eco-system of
Southeastern Wisconsin by facilitating MMSD’s safety and environmental
operations, such as storm water and wastewater overflow.  The alternative that
MMSD proposes herein was to find unused channels in the Public Safety Pool.
MMSD has demonstrated that grant of a waiver is warranted because at the
requested power levels no interference is anticipated to adjacent or co-channel
users in the area.

IV.        ORDERING CLAUSES

13. Accordingly, pursuant to Sections 4(i) and 309(a) of the Communications Act
of 1934, as amended, 47 U.S.C. §§ 154(i), 309(a), and Section 1.925 of the
Commission’s Rules, 47 C.F.R. § 1.925, IT IS ORDERED that the waiver requests
filed by the Metropolitan Milwaukee Sewage District on February 3, 2003 with
respect to application FCC File No. 0001181827 and on February 10, 2003 with
respect to application FCC File No. 0001190322, ARE GRANTED SUBJECT TO THE
CONDITIONS set forth herein.  The Public Safety and Critical Infrastructure
Division SHALL PROCESS applications FCC File Nos. 0001181827 and 0001190322 in
accordance with this Order and the Commission’s Rules.

14. 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

 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-353A1.doc

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

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