Subject: [NEXTEL-1] Promotion of Spectrum Efficient Technologies on Certain Part 90 Frequencies- Narrowbanding

From: [email-masked]
Date: Wed, 03 Dec 2003 15:45:15 -0500

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

In the Matter of

Implementation of Sections 309(j) and 337
of the Communications Act of 1934 as Amended

Promotion of Spectrum Efficient Technologies on Certain Part 90 Frequencies

WT Docket No. 99-87

RM-9332

ORDER

Adopted:  December 1, 2003 Released:  December 3, 2003

By the Commission:

I.  INTRODUCTION
1. Before us are four requests to stay the effectiveness of a rule adopted in
the Second Report and Order and Second Further Notice of Proposed Rule Making
(Second Report and Order) in this proceeding.   The Second Report and Order
adopted certain measures intended to facilitate the migration to narrowband
technology in the private land mobile radio (PLMR) service, including a
prohibition on the filing of applications for new wideband operations or
expansions of existing wideband operations, beginning six months after
publication of the Second Report and Order in the Federal Register.  For the
reasons set forth herein, we find that good cause has been shown to stay this
date pending Commission consideration of the petitions for reconsideration filed
in this proceeding.

II. BACKGROUND

2. In 1995, in the Refarming proceeding, the Commission adopted measures to
promote highly effective and efficient use of the PLMR spectrum and facilitate
the introduction of advanced technologies into the PLMR services.   The rules
provided that, in order to effect a transition from a wideband (25 kHz) channel
plan to a narrowband (12.5 kHz and less) channel plan, the Commission would
approve only increasingly spectrally efficient equipment.   Specifically, after
February 14, 1997, the Commission would approve equipment for wideband
operations only if it was capable of operating on 12.5 kHz or narrower
channels.  Further, after January 1, 2005, the Commission would approve
equipment for 25 kHz and/or 12.5 kHz channels only if it was capable of
operating on 6.25 kHz or narrower channels.   At that time, the Commission
specifically declined to implement a comprehensive set of dates mandating strict
manufacturing and licensing requirements,  or to require users to replace
existing wideband systems.

3. In 2000, in the Report and Order and Further Notice of Proposed Rule Making
(FNPRM) in this proceeding,  the Commission, inter alia, sought comment on
certain proposals to promote new spectrally efficient technologies.
Specifically, the Commission sought comment on a petition for rulemaking
proposing that non-public safety licensees in the bands between 222 MHz and 896
MHz be required to deploy technologies that achieve the equivalent of one voice
path per 12.5 kilohertz of spectrum.   In addition, in the FNPRM, the Commission
sought comment on the effectiveness of the rules adopted in the Refarming
proceeding.   The Commission tentatively concluded that the current pace of
migration to more spectrally efficient technologies had not been sufficiently
rapid, and that it should encourage the migration to narrowband technologies by
prohibiting the manufacture or importation of equipment that does not meet
certain efficiency standards by certain dates.   It also tentatively concluded
that requiring the employment of new spectrally efficient technologies by
certain dates, as proposed in the rulemaking petition, would impose unreasonable
burdens on licensees, and that it would be unfair to require users to replace
systems in which they had invested substantial amounts.

4. In 2003, in the Second Report and Order in this proceeding, the Commission
concluded that the Refarming rules had not resulted in the desired efficiency of
use of spectrum in the 150-174 MHz and 421-512 MHz bands, and that further
action was required.   Consequently, the Commission amended its rules to provide
a schedule for the migration of PLMR systems to implementation of narrowband
technologies.  At issue in the subject stay requests is the Commission’s
decision, beginning six months after publication of the Second Report and Order
in the Federal Register, to prohibit any applications for new operations using
wideband channels operating in the 150-174 MHz or 421-512 MHz bands, and to
allow incumbent wideband Part 90 licensees in these bands to make modifications
to their systems only to the extent that their respective authorized
interference contours are not expanded as a result thereof.

5. The Second Report and Order was published in the Federal Register on July 17,
2003.   Thus, under the amended rules, no applications for new wideband systems
or expansions of existing wideband operations may be filed after January 13,
2004.   The Commission received eighteen petitions for reconsideration of the
Second Report and Order.   In addition, four requests for stay of the January
13, 2004 deadline were filed.  This Order addresses only the stay requests.

III.  DISCUSSION

6. In considering requests for stay, the Commission generally considers the four
criteria set forth in Virginia Petroleum Jobbers Association.   These criteria
are (1) a likelihood of success on the merits; (2) the threat of irreparable
harm absent the grant of preliminary relief; (3) the degree of injury to other
parties if relief is granted; and (4) the issuance of the order will further the
public interest.   The Commission then balances these interests in order to
determine an administrative response on a case-by-case basis.   There is no
requirement that there be a showing as to each criterion.   The relative
importance of the four criteria will vary depending upon the circumstances of
the case.   If there is a particularly overwhelming showing in at least one of
the factors, we may find that a stay is warranted notwithstanding the absence of
another one of the factors.   For the reasons set forth below, we agree with the
parties that a stay of the January 13, 2004 date is appropriate under the
circumstances presented.  Specifically, we conclude that the extent to which a
stay will further the public interest, and the fact that no parties will be
injured if relief is granted, merit granting the requested stay.

7. With regard to modifying existing wideband systems, the Public Safety
Petitioners argue that prohibiting expansions after January 13, 2004 will impose
substantial costs on state and local governments by requiring the premature
replacement of entire wideband systems if a system needs to be expanded to
accommodate changes in jurisdictional boundaries or population shifts, or to
fill in gaps in signal coverage.   Similarly, AAR argues that prohibiting
expansion of wideband systems after January 13, 2004 will force the railroad
industry into “mixed mode” communications (i.e., use of both 12.5 kHz and 25 kHz
equipment), which the Federal Railroad Administration recently concluded has the
potential for degrading the quality and intelligibility of voice
communications.   With regard to new systems, the Public Safety Petitioners
argue that prohibiting new wideband systems after January 14, 2004 will harm
efforts to maintain interoperability  among public safety entities, because
users of new narrowband systems would not be able to communicate with users of
existing wideband systems.   API/UTC note that many licensees  in the utility
and petroleum and natural gas industries operate extensive, complex systems;
and, they argue that six months is not sufficient time to plan and budget for
all needed modifications.   IPMobileNet similarly contends that planning complex
new systems takes more than six months.   We concur that a stay of the January
13, 2004 deadline pending further proceedings would further the public interest.

8. In addition, nothing in the record before us suggests that there will be any
injury to any other party if the requested relief is granted.  Over the long
term, implementation of the rules adopted in the Second Report and Order is
intended to relieve congestion and clear space for additional licensees in the
PLMR bands below 512 MHz.  A temporary stay of the January 13, 2004 date pending
the resolution of the petitions for reconsideration of the Second Report and
Order will not exacerbate the problems that the new rules are intended to
address.  A stay would not result in additional congestion among existing
licensees, or preclude the licensing of any new stations that could not be
licensed if the prohibition on new and expanded wideband operations were to take
effect.  Therefore, we agree with API/UTC and IPMobileNet that maintaining the
status quo with respect to licensing wideband systems will not injure any party.

9. In conclusion, we recognize that many PLMR systems are used for extremely
important public safety or critical infrastructure purposes.  We also are
persuaded that six months may not be sufficient time for all licensees to plan
all the necessary modifications to their existing wideband systems, or to plan
new wideband systems that must be compatible with existing wideband systems, in
compliance with the January 13, 2004 deadline.  As a result, based on the record
before us, we are concerned that retaining such deadline would not further the
public interest, because it would adversely affect public safety communications
and critical infrastructure operations.  We also believe that a temporary stay
of the deadline would not injure any party.  We therefore conclude that a stay
of the January 13, 2004 date is appropriate.  For the foregoing reasons,
therefore, we will stay the January 13, 2004 deadline for filing applications
for new wideband systems or expansions of existing wideband systems in Section
90.209(b)(6) of the Commission’s Rules.  We grant this stay pending resolution
of the petitions for reconsideration of the Second Report and Order.

IV. ORDERING CLAUSE

10. For the aforementioned reasons, IT IS ORDERED pursuant to Sections 4(i), 11,
303(g), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i), 161, 303(g), and 303(r), that the Requests for Stay filed by
IPMobileNet, Inc. on August 11, 2003; the American Association of Railroads on
August 18, 2003; the American Petroleum Institute and the Untied Telecom Council
on August 18, 2003; and the Association of Public-Safety Communications
Officials-International, Inc., the International Association of Fire Chiefs,
Inc., the International Municipal Signal Association, the International
Association of Chiefs of Police, the Major Cities Chiefs Association, the
National Sheriffs’ Association, the Major County Sheriffs’ Association, and the
National Public Safety Telecommunications Council on August 29, 2003, ARE
GRANTED and will remain in effect until resolution of the petitions for
reconsideration filed in this proceeding.
FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch
Secretary
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-306A1.doc

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