Federal Communications Commission DA 11-863 1 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Requests for Waiver of Various Petitioners to Allow the Establishment of 700 MHz Interoperable Public Safety Wireless Broadband Networks ) ) ) ) ) ) PS Docket No. 06-229 ORDER Adopted: May 12, 2011 Released: May 12, 2011 By the Chief, Public Safety and Homeland Security Bureau: I. INTRODUCTION 1. By this order we grant, with conditions, the waiver petition filed by the State of Texas (“Texas” or “Petitioner”) seeking early deployment of a statewide public safety wireless broadband network in the 700 MHz public safety broadband spectrum (763-768 MHz and 793-798 MHz).1 We find that Petitioner has generally met the standard for waiver of the Commission’s rules and that so long as the conditions imposed herein are met, grant of this waiver is appropriate in advance of resolution of the broader issues pending in this docket. We act on the Petitioner’s waiver request now in light of its supplemental request for expedition to preserve the specific funding availability identified for its constituent jurisdiction, Harris County, which has secured $10 million in federal funding that must be expended or encumbered by June 30, 2011.2 By enabling early deployment in this band by Petitioner, we take another step towards development of a nationwide, wireless, broadband interoperable public safety network. II. BACKGROUND 2. The spectrum at issue (763-768 MHz/793-798 MHz) is designated for public safety broadband communications.3 This spectrum is held by a single nationwide licensee, the Public Safety Spectrum Trust (“PSST”), which was designated by the Commission as the nationwide Public Safety 1 State of Texas Petition for Expedited Waiver, PS Docket No. 06-229 (filed Sept. 17, 2010) (Texas Waiver). 2 See State of Texas Petition for Expedition, PS Docket No. 06-229, at 1 (filed Feb. 18, 2011) (Texas Expedition Request). We recognize that a number of other public safety entities have sought expedited treatment for their various waiver petitions in this docket. None, however, cited a specific and identifiable need for expedition. Texas has shown a specific deadline that requires our immediate action to secure a concrete funding benefit for its constituent jurisdiction, Harris County. We recognize the generally cited desire by the other Petitioners for prompt action to support public safety and are committed to moving forward to address these issues in the near future. 3 See Service Rules for the 698-746, 747-762 and 777-792 Bands; Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, WT Docket No. 06-150, PS Docket No. 06-229, Second Report and Order, 22 FCC Rcd 15289, 15406 ¶ 322 (Second Report and Order). We also created an internal guard band in the 768-769 MHz and 798-799 MHz bands located between the broadband and narrowband allocations. Id. Federal Communications Commission DA 11-863 2 Broadband Licensee (“PSBL”).4 As originally conceived, the PSBL would partner with a nationwide commercial entity and enter into a mandatory “public-private partnership” governed by a Network Sharing Agreement (“NSA”), under which the commercial entity would construct and operate a nationwide network that would be shared by commercial and public safety users.5 However, that vision did not come to fruition.6 3. Following the Third Further Notice, a number of public safety petitioners sought waiver of the Commission’s rules to allow early deployment of local or regional public safety broadband networks in the public safety broadband spectrum.7 On May 12, 2010, the Commission granted, with conditions, 21 waiver petitions for such early deployment.8 Among other conditions, the Commission required each waiver recipient to utilize Long Term Evolution (“LTE”) as a common air interface, obtain a spectrum lease from the PSST, adhere to certain technical requirements, submit reports on its progress, and work with the Emergency Response Interoperability Center (“ERIC”) to submit an “interoperability showing” detailing how the waiver recipient would ensure operability and interoperability for its network.9 In addition, the Commission provided that the Public Safety and Homeland Security Bureau (“Bureau”) would review these interoperability submissions and, on recommendation from ERIC, adopt baseline technical requirements applicable to those entities submitting interoperability showings.10 4. On December 10, 2010, the Bureau issued an Order establishing these technical requirements.11 The Interoperability Order provided additional detail and further baseline criteria, based on the record and the interoperability showings, designed to ensure interoperability for these early deployed networks. Among other things, this included requirements related to certain baseline LTE interfaces to support roaming and specified applications; a method for obtaining system identifiers; planning for conformance testing; interoperability testing; limitations on fixed use; performance and coverage requirements; standards for reliability, security, and encryption; and methods for interference mitigation.12 4 See Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, PS Docket No. 06-229, Order, 22 FCC Rcd 20453 (2007). 5 Id. 6 See Service Rules for the 698-746, 747-762 and 777-792 Bands; Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, WT Docket No. 06-150, PS Docket No. 06-229, 22 FCC Rcd 8047 (2008) (Second Further Notice); 23 FCC Rcd 14301 (2008) (Third Further Notice); 26 FCC Rcd 733 (2011) (Third Report and Order and Fourth Further Notice). 7 See Public Safety and Homeland Security Bureau Seeks Comment on Petitions for Waiver to Deploy 700 MHz Public Safety Broadband Networks, PS Docket No. 06-229, Public Notice, 24 FCC Rcd 10814 (PSHSB 2009). 8 Requests for Waiver of Various Petitioners to Allow the Establishment of 700 MHz Interoperable Public Safety Wireless Broadband Networks, PS Docket 06-229, Order, 25 FCC Rcd 5145 (2010) (Waiver Order). 9 See generally Waiver Order, 25 FCC Rcd at 5151-66. 10 Id. at 5163-64. 11 Requests for Waiver of Various Petitioners to Allow the Establishment of 700 MHz Interoperable Public Safety Wireless Broadband Networks, PS Docket No. 06-229, Order, 25 FCC Rcd 17156 (PSHSB Dec. 2010) (Interoperability Order). 12 See Interoperability Order, 25 FCC Rcd at 17159-64 ¶¶ 9-26; see also, City of Charlotte, NC; District of Columbia; Iowa Statewide Interoperability Communications Systems Board; State of New Jersey; City of Mesa; State of New Mexico; State of Oregon; City of Seattle, WA, Petition for Reconsideration, PS Docket No. 06-229 (filed Jan. 10, 2011); Utilities Telecom Council, Petition for Reconsideration, PS Docket No. 06-229 (filed Jan. 11, 2011) (seeking reconsideration of the restriction on fixed use). Federal Communications Commission DA 11-863 3 5. Further, on January 25, 2011, the Commission adopted a Third Report and Order and Fourth Further Notice of Proposed Rulemaking, in which the Commission established LTE as the air interface for the nationwide broadband interoperable public safety broadband network and sought comment on additional requirements that would allow the deployment of state, regional, and Tribal networks with common technical characteristics to facilitate interoperability.13 The Commission noted, however, that pending the adoption of final licensing or leasing rules, individual public safety jurisdictions would still require waivers to obtain authority to proceed.14 Accordingly, the Bureau now considers Petitioner’s waiver request. III. DISCUSSION A. Waiver Standard 6. To obtain a waiver of the Commission's rules, a petitioner must demonstrate either that: (i) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the present case and that a grant of the 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.15 We find that the waiver, as conditioned below, may be granted under either prong of this standard. 7. Under the first prong, we find that the underlying purpose of the rules, whether intact, inoperative or stayed, would not be served by applying them to the instant case and that a conditional grant is in the public interest. The general purpose of the rules in question is to facilitate a nationwide, wireless, interoperable broadband public safety network. We find that we may still advance the goal of nationwide interoperability by granting the waiver request with appropriate conditions. 8. We find that the waiver standard may also be met under the second prong, because unique or unusual factual circumstances exist that would make application of the rules contrary to the public interest. As the Commission has previously noted, there is a critical public safety need for prompt deployment and access to broadband communications infrastructure that meets public safety’s needs.16 In this particular case, Texas has noted that specific funding secured by Harris County will be lost if its waiver is not acted upon.17 Specifically, Harris County will lose $10 million in federal funding if it is not expended or encumbered by June 30, 2011.18 Absent our prompt action on the Texas request, therefore, such an opportunity would be forfeited.19 Moreover, in the absence of final rules that would enable the Petitioner to obtain operational authority, the Petitioner has no reasonable alternative other than to seek a waiver. 9. In light of the open rulemaking issues in this docket,20 however, we find that the Petition and associated pleadings to date provide a sufficient basis for conditional grant only. We specify these conditions next. 13 See generally Third Report and Order and Fourth Further Notice. 14 Id. at 739 ¶ 14. 15 47 C.F.R. §§ 1.925(b)(3)(i-ii). 16 Waiver Order, 25 FCC Rcd at 5150-51 ¶ 15. 17 Texas Expedition Request at 1. 18 Id. 19 Texas has indicated that it intends to enter into an intergovernmental agreement that will allow Harris County to operate under its statewide waiver. Texas Expedition Waiver at 1. 20 See generally Third Further Notice; Third Report and Order and Fourth Further Notice. Federal Communications Commission DA 11-863 4 B. Timing 10. In the Waiver Public Notice, the Bureau sought comment on the appropriate timeframe for action on the additional waiver requests filed since the Commission issued the initial Waiver Order.21 In particular, the Bureau noted the Commission’s expectation for expeditious action but also recognized a number of additional factors for consideration, including the evolution of the LTE standard, the ongoing development of technical standards for the network, the volume of waivers, and the implications of that volume on interoperability issues such as roaming and the assignment and distribution of network identifiers.22 11. Commenters were split on timing for any additional action on the pending waivers.23 Some favored proceeding immediately.24 Others took note of the increased complexity that would result from granting additional waivers, as well as the possibility of compromising interoperability.25 As with the previous round of waivers, T-Mobile objects to any additional grants until the Commission has completed the pending rulemaking proceedings addressing both the public safety spectrum and the D Block.26 T-Mobile argues that uncertainty related to funding for any networks that would be built pursuant to waivers militates against any further grants, as does the existence of geographically overlapping requests that will impede the ability to achieve nationwide interoperability.27 T-Mobile also cites uncertainty related to interoperability standards and the relationship between the D Block licensee(s) and the public safety broadband licensee as reasons to delay action.28 12. For the same reasons cited by the Commission in the prior Waiver Order, we find that we can proceed with this Petition without imperiling the Commission’s overall interoperability goals. Furthermore, we find that expedited grant of the Texas petition, with conditions, does not implicate the concerns the Waiver Public Notice and commenters identified. As described below, all of the Texas jurisdictions with current waivers from, or pending waivers before, the Commission have issued letters of support and cooperation, which indicates that the state and its constituent jurisdictions have a solid working relationship that will facilitate technical and operational interoperability and which also addresses any concerns with respect to geographic overlap. Texas has specifically indicated that it is the 21 See Public Safety and Homeland Security Bureau Seeks Comment on Petitions for Waiver to Deploy 700 MHz Public Safety Broadband Network, DA 10-1748, 25, Public Notice, FCC Rcd 13155, 13157 (PSHSB 2010) (Waiver Public Notice); see also, Public Safety and Homeland Security Bureau Seeks Comment on Additional Petition for Waiver to Deploy 700 MHz Public Safety Broadband Network, DA 10-1796, Public Notice, 22 FCC Rcd 13364 (PSHSB 2010) (Texas Public Notice). The Texas Public Notice sought comments on the same issues presented in the Waiver Public Notice. 22 Waiver Public Notice at 13157. 23 Comments cited herein were filed in PS Docket No. 06-229 unless otherwise indicated. 24 Comments by the City of Pembroke Pines at 2 (filed Oct. 18, 2010); Comments of the City of Philadelphia at 7-9 (filed Oct. 18, 2010), Comments of the Telecommunications Industry Association at 9-10 (filed Oct. 18, 2010), Comments of Great River Energy at 2 (filed Oct. 18, 2010), Comments of the Public Safety Spectrum Trust at 3-5 (filed Oct. 18, 2010) (recommending grant to those entities that can demonstrate adequate funding). 25 Comments by the City of Seattle at 9 (filed Oct. 18, 2010); Comments of the San Francisco Bay Area Urban Area at 2 (filed Oct. 18, 2010), Comments of the State of Florida Department of Management Services at 6 (filed Oct. 18, 2010), Comments of Adams County Communications Center at 4 (filed Oct. 18, 2010), Comments of Harris Corporation at 12-13 (filed Oct. 18, 2010), Comments of APCO at 3 (filed Oct. 18, 2010) (noting the difficulty with limited PLMN IDs). 26 See Comments of T-Mobile USA, Inc. (filed Oct 18, 2010). 27 Id. at 4-5. 28 Id. at 5. Federal Communications Commission DA 11-863 5 intent of Petitioner and Harris County to “execute an inter-government agreement to permit Harris County to operate…under the requested waiver submitted by [Texas].”29 13. Moreover, we find that the conditions required herein and the Commission’s recent decision in the Third Report and Order and Fourth Further Notice address the harms cited by commenters such as T-Mobile, including providing a Commission-established air interface and providing detailed information on technical considerations under review by the Commission to establish a solid baseline for interoperability. We also note the recent filing by Motorola Solutions, Inc. (“Motorola”), including an amendment to Motorola’s contract with Harris County, in which certain system specifications were amended to conform to the Bureau’s Interoperability Order and which specifically obligated Motorola to comply with the Commission’s and Bureau’s orders in this docket, as well as all applicable future rules and orders.30 Accordingly, we find that we may proceed with addressing the Texas petition in advance of the resolution of the broader rulemaking issues. C. Conditions 14. Incorporation of Prior Conditions. We find that it is appropriate, during the pendency of the Commission’s underlying rulemaking proceeding, to require Petitioner to adhere to the same cumulative conditions as those imposed on the initial group of waiver recipients, including the technical, operational, and leasing provisions of those prior orders.31 Moreover, while we note that the rules adopted in the Third Report and Order have not yet become effective, we also condition Petitioner’s waiver on adherence to these rules.32 We emphasize certain of those conditions below and explain their applicability to Petitioner as necessary. 15. Technical Conditions, Reporting, and Certifications. To ensure a continuing baseline for interoperability, we require Petitioner to adhere to the technical conditions to which each of the prior waiver recipients is subject, as well as submission of an interoperability showing for its statewide network33 and the certifications and reporting associated with the planning, implementation and deployment of the networks.34 We find that this requirement will ensure consistency and interoperability among the waiver jurisdictions and within the state and will provide a common operability baseline. 16. Constituent Jurisdictions. In granting this waiver, we are particularly cognizant of the Commission’s expressed preference for state-level waiver requests.35 In this respect, the Texas waiver request shows clear evidence of state leadership and cooperation among the constituent jurisdictions that 29 Texas Expedition Petition at 1. 30 Letter from Robert L. Pettit, Counsel to Motorola Solutions, Inc., to Marlene H. Dortch, Secretary, Federal Communications Commission, PS Docket No. 06-229 (filed Apr. 8, 2011). 31 See, e.g., Waiver Order; Interoperability Order; Fourth Report and Order and Third Further Notice. 32 See, e.g., Third Report and Order and Fourth Further Notice. We note that the prior waiver recipients are already subject to the LTE requirements adopted in the Third Report and Order by virtue of the conditions imposed by the Waiver Order. 33 To the extent that Texas plans to deploy its network in phases, we expect that each phase would carry independent obligations to submit an interoperability showing under this Order. 34 See, e.g., Waiver Order, Interoperability Order, Fourth Report and Order and Third Further Notice. On June 18, 2010, the Office of Management and Budget granted emergency approval of the information collections contained in the Waiver Order. See Office of Management and Budget Grants Emergency Approval For Information Collection Mandated Under 700 MHZ Waiver Petition Order in PS Docket 06-229, Public Notice, DA 10-1097 (PSHSB 2010). The new or modified information collections contained in the Interoperability Order and Fourth Report and Order will be become effective upon the approval of the Office of Management and Budget. 35 Waiver Order, 25 FCC Rcd 5162-63 ¶¶ 50-52. Federal Communications Commission DA 11-863 6 had sought relief prior to the state’s filing.36 Specifically, while the Texas waiver request seeks statewide authority, it also included letters of support and collaboration from GHC 9-1-1, Harris County, the City of Houston, and the City of San Antonio.37 We find this showing persuasive and require, as a condition of waiver, that Texas continue to cooperate fully with its constituent jurisdictions to ensure that any deployments by constituent jurisdictions not only adhere to the Commission’s requirements, but also conform to a statewide plan for deployment. In this respect, we also expect that constituent jurisdictions will work with the state to minimize duplicative expenses and facilities where appropriate, in order to limit the need for multiple system identifiers or other impediments to interoperability. We find these requirements to be consistent with the Commission’s treatment of waiver requests from New York State and New York City, the Commission’s prior requirement that waiver recipients serve all eligible entities within their geographies,38 and comments filed regarding the waiver request from the State of Texas.39 17. Lease and Administrative Fee. In the Public Notice, the Bureau sought comment on how to address administrative fees for the leasing of spectrum licensed to the PSST, particularly in light of the previously approved PSST budget.40 Some parties advocate simply applying the same obligations the Commission imposed on prior waiver recipients.41 Others advocate re-evaluating the lease payment structure in the event the Commission grants additional waivers42 or suggest that the Commission should reduce the obligations of prior waiver recipients.43 The PSST suggests that the PSST should submit a new budget and revised fee proposal if the Commission grants any further waivers and that the Commission should not “commingle” any new fees with previously collected funds.44 18. As we are only acting on the Texas petition at this time, we find it appropriate and reasonable to require that Texas be required to submit the same lease and same fee ($15,000) to the PSST as did all prior waiver recipients. We also find this to be appropriate in light of the fact that the initial budget year for the PSST with respect to its administration of the waiver leases is partially lapsed, and we expect the Commission may consider changes in the PSST’s second year budget assessment.45 Consistent with the prior waiver recipients, we will require that the lease be executed and submitted to the Bureau 36 Texas Waiver at 2, 5-6, and appended letters from Harris County, the City of Houston, GHC 9-1-1, and the City of San Antonio. GHC 9-1-1 has since withdrawn its separate pending petition for waiver. See Letter from Stan Jeffernan, Chief Operations Officer, to the Federal Communications Commission, PS Docket No. 06-229 (filed Mar. 14, 2011). 37 Id. 38 Waiver Order, 25 FCC Rcd at 5161-63 ¶¶ 49-54. We also expect that San Antonio, which previously received a waiver from the Commission, will work together with Texas in this respect, consistent with the representations of both the City of San Antonio and the State of Texas. Texas Waiver at 2, and appended letter from San Antonio. We also find this to be consistent with the Commission’s treatment of the State of New York and New York City. 39 See, e.g., New York State Comments at 1. 40 Waiver Public Notice at 13157. 41 Comments of APCO at 3. 42 Comments of the Bay Area Urban Area at 2. 43 Comments of the State of New York at 2. 44 Comments of the PSST at 9. 45 Implementing a Nationwide Broadband Interoperable Public Safety Network in the 700 MHz Band, PS Docket No. 06-229, Order, 25 FCC Rcd 10813, 10817-18 app. A, (PSHSB 2010) (“Budget Order”). Federal Communications Commission DA 11-863 7 within 60 days of the date of release of this order.46 Also as before, we require the lease administrative fee to be submitted within 60 days of the date of the Bureau’s approval of the lease.47 19. Incumbent Narrowband Operations. As previously required by the Commission, we reiterate that Petitioner is responsible for protection or relocation, at its own expense, of any narrowband operations currently authorized in the broadband spectrum within the geography of intended operations, as well as coordination with any operations in adjacent regions.48 20. Eligibility. In seeking comment on the recent waiver petitions, the Bureau asked how to address those petitions that included signatories such as investor-owned utilities or other entities whose eligibility under Section 337 was not readily apparent.49 We received a number of comments on this issue. Adams County advocates strictly adhering to the requirement that all users of the network provide public safety services, arguing that expanding eligibility will reduce the amount of spectrum available for first responders.50 New York State similarly urges adhering to the terms of the Waiver Order with respect to eligible entities.51 APCO “generally supports public/private partnerships for public safety communications systems” but acknowledges the limitations of Section 337.52 APCO recommends allowing the amending of petitions with signatories whose eligibility is unclear.53 While Motorola cites the benefits of an expansion of eligibility, it also points to legislative solutions to this issue.54 Others urge the expansion of eligibility. Alcatel Lucent urges eligibility for hospitals, health care facilities, and emergency medical services departments, as well as critical infrastructure.55 Harris Corporation seeks “a more flexible interpretation of Section 337(f)” that would allow waiver grantees to determine access to their networks.56 The State of New Mexico argues that the Commission should allow agreements between waiver recipients and utilities and other critical infrastructure and that such partnerships are permissible under Section 337(f).57 21. We note, however, that since these questions were posed in the Waiver Public Notice, the Commission has sought additional specific comment on eligibility issues in its recent Fourth Further Notice.58 Accordingly, we find it appropriate at this time to impose the same limitations on Petitioner as those imposed in the Waiver Order. Therefore, consistent with the Commission’s prior tentative 46 Waiver Order at ¶ 27, 25 FCC Rcd at 5154. As the Office of Management and Budget has already approved this information collection, we find it appropriate for this time to run from the release date of this order. 47 See, e.g., Budget Order at 10817-18 app. A. 48 Waiver Order, 25 FCC Rcd at 5168 ¶¶ 72-73. 49 Waiver Public Notice at 13156-57. 50 Comments of the Adams County Communications Center at 3-4. 51 Comments of the State of New York at 1. 52 Comments of APCO at 2. 53 Id. 54 Comments of Motorola, Inc. at 4-5 (filed Oct. 18, 2010). 55 Comments of Alcatel Lucent at 3-4 (filed Oct. 18, 2010). 56 Comments of Harris Corporation at 5-12. 57 See generally, Comments of the State of New Mexico (filed Oct. 18, 2010). See also, Comments by the Counties of Calumet, Outagamie, and Winnebago, Wisconsin at 1-2 (filed Oct. 18, 2010), Comments of Mesa, Arizona at 1-2 (filed Oct. 18, 2010), Comments of the Utilities Telecom Council (filed Oct. 18, 2010). 58 Third Report and Order and Fourth Further Notice, 26 FCC Rcd at 769-71 ¶¶ 134-40. Federal Communications Commission DA 11-863 8 conclusion in the Third Further Notice, non-public safety users are not eligible to use the 700 MHz public safety spectrum.59 IV. PROCEDURAL MATTERS 22. Paperwork Reduction Act of 1995. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore it does not contain any new or modified “information burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198. V. ORDERING CLAUSES 23. Accordingly, IT IS ORDERED that pursuant to sections 1, 4(i), 301, 303, 332, and 337 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 301, 303, 332, and 337, and Section 1.925 of the Commission’s rules, 47 C.F.R. § 1.925, THIS ORDER in PS Docket No. 06-229 is ADOPTED. 24. IT IS FURTHER ORDERED that the Waiver Request filed by the State of Texas is GRANTED WITH CONDITIONS, as specified herein. 25. This action is taken under delegated authority pursuant to Sections 0.191 and 0.392 of the Commission’s rules, 47 C.F.R. §§ 0.191, 0.392. FEDERAL COMMUNICATIONS COMMISSION James Arden Barnett, Jr., Rear Admiral (Ret.) Chief, Public Safety and Homeland Security Bureau 59 Waiver Order, 25 FCC Rcd at 5155 ¶ 34.