Subject: [NEXTEL-1] Before the Dominion Virginia Power requests to utilize frequencies allotted to the Public Safety Services Pool during emergencies.

From: NEXTEL-1
Date: Fri, 02 Jul 2004 15:03:35 -0400

Before the Dominion Virginia Power requests to utilize frequencies
allotted to the Public Safety Services Pool during emergencies.

Federal Communications Commission
Washington, D.C. 20554
In the Matter of      )
)
Dominion Virginia Power  )
)
Request for Waiver of Section 90.20  )
of the Commission’s Rules   )

ORDER
Adopted: June 30, 2004      Released: July 2, 2004
By the Chief, Public Safety and Critical Infrastructure Division,
Wireless Telecommunications Bureau:
I.  Introduction

1. On October 6, 2003, Dominion Virginia Power (Dominion) filed a
Request for Waiver of Section 90.20 of the Commission’s Rules  to permit
it to be eligible to utilize frequencies allotted to the Public Safety
Services Pool.   Later, on March 10, 2004, Dominion amended its Waiver
Request to include an additional base station and reduce the proposed
transmitting power.   The Waiver Request was placed on public notice on
March 26, 2004.   Based on the record in this proceeding, we conclude
that the waiver request should be granted.  Specifically, we grant the
request to waive the eligibility requirements of Section 90.20 which
will allow Dominion to operate base stations on the frequency 39.54
MHz.  We find it significant that as a direct consequence of our
decision Dominion will be able to use the Public Safety Service Pool
frequency to communicate directly with public safety officials during
emergencies.  As a result, we believe this action fosters
interoperability and promotes effective public safety and emergency
communications.

II.  Background

2. Dominion states that it serves more than two million homes and
businesses in Virginia and North Carolina.   According to Dominion, it
operates two nuclear facilities in Virginia, North Anna in Louisa County
and Hogg’s Neck in Surry County.  Dominion requests waiver of the
eligibility requirements contained in Section 90.20 of the Commission’s
Rules so that it may operate base stations on 39.54 MHz, allowing
Dominion’s security officials at these plants to better coordinate with
public safety entities in the event of an emergency.
3. As a general matter, under the Commission’s Part 90 Rules, entities
are licensed on frequencies in the category or categories for which they
meet the eligibility criteria.  Section 90.20 of the Commission’s Rules
sets out the eligibility requirements for use of frequencies in the
Public Safety Services Pool.   In general, those requirements restrict
use of the frequencies listed in that section to governmental entities
and persons or associations that have a direct role in providing
emergency or medical services.   A waiver of Section 90.20 of the
Commission’s Rules is, therefore, necessary to permit Dominion to
operate base stations on the frequency 39.54 MHz.
4. The Commonwealth of Virginia, Department of State Police (State
Police) has submitted a letter in support of Dominion’s request.   The
subject frequency has been designated by Virginia as its State-wide
Interdepartmental Radio System (SIRS), and is to be used only for
“transmissions of a direct law enforcement nature.”   While the State of
Florida supports the goal of the waiver petition, namely, interoperable
communications between Dominion and public safety in Virginia, it
nonetheless argues that it can be accomplished through use of Section
90.179, “Shared Use of Radio Spectrum,” and therefore, it urges the
Commission to deny the waiver.

III.  Discussion

5. To obtain a waiver of the Commission’s Rules, a petitioner must
demonstrate either that the grant would be in the public interest and
the underlying purpose of the rule would be frustrated or not served by
the application to the present case;  or that in view of unique or
unusual factual circumstances, application of the rule would be
inequitable, unduly burdensome or contrary to the public interest, or
the applicant has no reasonable alternative.
6. We find that Dominion has shown that grant of a waiver of Section
90.20 under the circumstances presented, is in the public interest and
warranted to permit it to operate base stations on 39.54 MHz at its
nuclear facilities.  As Dominion states in its filing, it will use the
proposed frequencies at two of its nuclear power plants to provide
critical infrastructure communications.  Such communications will allow
for increased coordination between Dominion’s security officers and the
responding public safety personnel, by providing Dominion with a radio
system that allows it to communicate directly with the Virginia public
safety community.  The Commission has previously noted the importance of
facilitating such communications when granting similar requests.
7. Further, we are persuaded by the letter of support for this waiver
issued by the State Police.  As noted above, the State Police explains
that the frequency requested by Dominion is currently designated as the
frequency for SIRS.  As such, the use of this frequency is restricted to
coordination of law enforcement activities with local agencies.   As the
State Police recognizes, there are benefits to be derived from having a
means of direct communication between the nuclear plant security
officials and responding law enforcement officers in the event of an
emergency or breach of security.  For these reasons, we conclude that
Dominion’s waiver request does not frustrate the underlying purpose of
the subject rule that spectrum designated for use by public safety
entities be limited to such entities.  Rather, based on the record
before us, we believe that the proposed operation actually enhances and
furthers the Commission’s goal of promoting interoperability and
effective public safety and emergency communication by allowing more
coordination between public safety officers and Dominion.  Specifically,
we believe that grant of the requested relief will result in realization
of a stated goal in the Commission’s Strategic Plan.   As such, we find
it is in the public interest to grant Dominion’s waiver request.
8. Finally, Dominion has demonstrated that there are no reasonable
alternatives within the existing rules to accommodate the described
needs.  As the letter from the State Police indicates, the SIRS, which
is a dedicated state-wide public safety system is available only on this
frequency.   Further, Dominion indicates that alternative communications
are not feasible given the need for long-range mobile communications
that are reliable and secure, particularly given the sensitive nature of
the nuclear facilities it operates.  Therefore, to deny Dominion access
to this frequency would appear to frustrate their ability to engage in
direct communication with the public safety entities in Virginia in the
event of an emergency.
9. Further, Section 90.179, contrary to Florida’s contention, does not
provide these entities an opportunity to share facilities.   Under that
rule, “persons may share a radio station only on frequencies for which
they would be eligible for a separate authorization.”   As Dominion has
shown, it would not be eligible for a license on the 39.54 MHz frequency
because it fails to meet the eligibility requirements contained in
Section 90.20(a).   Therefore, finding no reasonable alternative, we
conclude that granting Dominion’s waiver request is warranted.

IV.  Conclusion

10. For the reasons stated herein, we find that Dominion has met the
burden for grant of waiver of Section 90.20 of the Commission’s Rules.
This Order grants Dominion’s request for waiver to allow it to hold
authorization in the 39.54 MHz frequency, designated for use by entities
eligible for the Public Safety Pool.  The action taken herein serves the
public interest in that it will provide improved opportunities for
interoperable communications by the public safety and public service
community where no reasonable alternative exists.

V.  Ordering Clauses

11. 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 1.925 and
90.20 of the Commission’s Rules, 47 C.F.R. §§ 1.925, 90.20, the Waiver
Request filed by Dominion on October 6, 2003 and amended on March 10,
2004, IS GRANTED as set forth above.
12. This action is taken under delegated authority pursuant to Sections
0.131 and 0.331 of the Commission’s Rules, 47 CFR §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION

D’wana R. Terry
Chief, Public Safety and Critical Infrastructure Division
Wireless Telecommunications Bureau
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-2004A1.doc

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