More rocks to turn over

The city of Chicago had a big problem. It was experiencing unmanageable congestion on its public-safety radio system, which relied on 16 UHF frequency pairs. An expanding population and additional demands placed on the city’s emergency-services organizations by the Department of Homeland Security required the city to secure “a minimum of 20 additional channels … to provide the level of services required to protect the public.”

The city searched for additional frequencies to augment its existing UHF system, but no such frequencies authorized for public-safety use were available in or around Chicago. The city’s plight is not unique. Public-safety communications systems throughout the country have become overloaded in recent years. The state and municipal agencies operating these systems have searched for spectrum to alleviate congestion only to discover that frequencies allocated by the FCC for use by public-safety agencies frequently are unavailable.

As a result, these agencies often are left to search for spectrum that is not dedicated for public-safety use — which requires a waiver of the commission’s rules.

In 1997, Congress enacted Section 337 of the Communications Act of 1934, which permitted the FCC to provide any public-safety agency with unused spectrum to augment congested communications systems.

Specifically, Section 337 allows the commission to waive any requirement of the Act or any regulation pertaining to it — other than those regarding harmful interference — to the “extent necessary to permit the use of unassigned frequencies for the provision of public safety services.”

The city of Chicago was able to leverage Section 337 to secure 20 available UHF frequencies that originally were not allocated for public-safety.

From a practical perspective, Section 337 requires the FCC to assign unused frequencies to provide public-safety service if five factors are met (see sidebar). Public-safety service is defined as a service whose principal purpose is to protect safety of life, health or property, and which is provided by state or local government authorities, or by a non-governmental entity whose primary mission is to provide such services.

Let’s look at each of the five factors.

Factor 1. Historically, the commission has required public-safety agencies to meet this factor by demonstrating there are no unassigned frequencies allocated to public-safety use in any band in the geographic area in which the applicant seeks to provide public-safety service. The commission has denied Section 337 requests if public-safety frequencies are available, even if those frequencies are not in the agency’s desired band.

For example, the city of Chicago sought additional frequencies in the UHF frequency band, but its application demonstrated no public-safety spectrum was available in or around Chicago in various bands containing public safety spectrum (e.g., 150-160 MHz, 450-470 MHz, 470-512 MHz, and 851-869 MHz).

In 2007, after Chicago’s waiver request was granted, the FCC allocated a portion of the 700 MHz band for narrowband public-safety use. This allocation has made subsequent waiver requests under Section 337 more difficult because 700 MHz public-safety spectrum is available in many locations nationwide. The commission historically has rejected requests under Section 337 when public-safety spectrum is available in the geographic area.

For example, the state of Ohio and a county in the state of Montana each sought waivers under Section 337 of the Act seeking additional 800 MHz and VHF frequencies, respectively, to be incorporated into their public-safety systems. The FCC rejected both requests under Section 337 because public-safety spectrum was available in other bands. The commission’s strict interpretation of the statutory language of the act, coupled with the recent 700 MHz public-safety allocation, likely will make it difficult for public-safety agencies to secure spectrum under Section 337.

However, based on FCC precedent, it is likely that public-safety agencies will have more success securing needed spectrum under Section 1.925 of the commission’s rules. As discussed below, both the state of Ohio and the county in Montana were successful under the commission’s Section 1.925 waiver standard.

Factor 2. Several public-safety agencies have met this requirement by conducting a review of all co-channel and adjacent-channel licensees that would have overlapping bandwidths with the agency’s proposed operations. Chicago, for example, demonstrated that there were no co-channel licensees and the risk of interference to adjacent-channel licensees was reduced because the city proposed to use 12.5 kHz-bandwidth equipment on frequencies where 20 kHz-bandwidth is permitted.

Factor 3. To meet this factor, applicants like the city of Chicago have demonstrated that the FCC already has assigned frequencies in the requested band for public-safety service in and around the proposed geographic area of operation.

Factor 4. Many of the commission’s frequency bands were allocated for their present use more than two years ago. For example, the commission allocated the frequencies requested by Chicago in 1994.

Factor 5. Chicago was able to meet this requirement by citing commission precedent, which requires the FCC to provide for the communications needs of the public-safety community and promote interoperability among public-safety agencies.

The FCC has granted only a handful of requests under Section 337 of the Act, and it likely will be more difficult for future licensees to secure spectrum under this provision, in light of the recent 700 MHz public-safety allocation. However, the Congressional intent of Section 337 — to provide spectrum relief to public-safety agencies — continues to be realized, as the FCC has provided dozens of public-safety agencies nationwide with unassigned spectrum under Section 1.925 of the commission’s rules.

This section permits the FCC to waive its rules for any entity (not only public-safety agencies) if either:

• The underlying purpose of the commission’s rules would not be served or would be frustrated by application to the present case, and grant of the waiver would be in the public interest; or
• In view of unique or unusual factual circumstances of the instant case, application of the rules would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative.

The requests for spectrum filed by the state of Ohio, the county in Montana and several other public-safety agencies were denied by the commission under Section 337, but ultimately granted under Section 1.925.

The FCC has denied many Section 337 requests because public-safety frequencies were available in the requested geographic area. However, the commission recognizes that cost constraints and functionality concerns often require public-safety agencies to request specific frequencies in desired bands to the exclusion of public-safety frequencies in other bands that may be unused. The commission’s pragmatic approach has led it to repeatedly interpret Section 1.925 of its rules to provide needed spectrum to public-safety agencies, thereby accomplishing the Congressional intent of Section 337 — despite the recent 700 MHz public safety allocation.

Wes Wright is an associate and Elizabeth Buckley the telecommunications licensing manager at the law firm of Keller and Heckman LLP in Washington, D.C. The firm specializes in wireless licensing and policy matters and is an expert in fixed, mobile and broadband wireless matters.

Did you know?

Spectrum not allocated for use by public-safety agencies still may be licensed to a public-safety agency if:

• No other spectrum allocated to public safety services is immediately available to satisfy the requested public-safety service use;
• The requested use is technically feasible without causing harmful interference to other spectrum users entitled to protection from such interference under the commission’s regulations;
• The use of the unassigned frequency for the provision of public-safety services is consistent with other allocations for the provision of such services in the geographic area for which the application is made;
• The unassigned frequency was allocated for its present use not less than two years prior to the date on which the application is granted; and
• Granting such application is consistent with the public interest.

Source: Section 337, Communications Act of 1934