Subject: [NEXTEL-1] In the Matter of MARATHON COUNTY SHERIFF’S DEPARTMENT

From: "marcel_rf1" <[email-masked]>
Date: Thu, 04 Mar 2004 20:44:44 -0000

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

In the Matter of  MARATHON COUNTY SHERIFF'S DEPARTMENT Request for 
Waiver of Section 101.81 of the Federal Communications Commission 
Rules	) ) ) ) ) )	  FCC File No. 0001391357	

ORDER

   Adopted:  February 27, 2004	Released:  March 4, 2004

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

I.	Introduction
The Marathon County Sheriff's Department (Marathon) has filed an 
application to modify its license for Fixed Microwave Service (FMS) 
Station WNEW985, Marathon County, Wisconsin operating in the 2 GHz 
band.  In connection with the application, Marathon requests a waiver 
of the Commission's Rules that would otherwise result in the 
reauthorization of the subject license on a secondary basis.  For the 
reasons set forth below, we grant Marathon's request to retain 
primary status for its proposed modifications to the facilities of 
Station WNEW985.
II.	BACKGROUND
The Commission has reallocated portions of the 2 GHz band from FMS to 
emerging technology (ET) services, including the personal 
communications services.  To this end, the Commission has adopted 
certain transition rules.  In doing so, the Commission balanced the 
needs of incumbent FMS licensees to continue to operate their systems 
with the need to conserve vacant 2 GHz spectrum for use by ET 
licensees, to provide ET licensees with a stable environment in which 
to plan and implement new services, and to prevent ET licensees from 
bearing any additional costs of relocating FMS licensees.  Thus, 
rather than immediately clearing the 2 GHz band of the incumbent FMS 
users, we permit the incumbents to continue to occupy the band on a 
co-primary basis with the ET licensees for a significant period of 
time, by the end of which the incumbents are to relocate to other 
spectrum.  ET licensees have the option, however, of requiring the 
FMS incumbents to relocate sooner if they pay the additional costs 
caused by the earlier relocation.  In addition, we authorize new FMS 
stations, extensions of existing FMS systems, and major modifications 
of existing FMS stations only on a secondary basis to ET systems.  
Most minor modifications of FMS stations are also authorized on a 
secondary basis unless the licensee can demonstrate that it needs 
primary status and that the modifications will not add to the 
relocation costs to be paid by the ET licensee.  The result is that 
while incumbent FMS licensees are able to continue operating their 
systems with primary status - as those systems currently exist - any 
expansions and most modifications to the systems result in secondary 
status.
Marathon requests a waiver of Section 101.81 of the Commission's 
rules so it can maintain primary status in the 2 GHz band.  Marathon 
acts as a central dispatch for all agencies within the County, the 
largest county in the state, and dispatches police, fire and 
ambulance services.  Marathon seeks waiver for its proposed 
modification, which would transfer Marathon's equipment from a water 
tower designated for demolition by the Village of Athens (Athens) to 
a new water tower in Athens.  Marathon submits that it is compelled 
to make the change in question because Athens has decided to tear 
down its existing water tower and construct a new water tower on 
which the Marathon would install the radio equipment which had been 
previously installed on Athens' old water tower.  
Marathon submits that there is no suitable structure within 200 feet 
of the old water tower on which Marathon could install its radio 
equipment.  Marathon adds that the decision by Athens to tear down 
its existing water tower and construct a new water tower is outside 
of the control of Marathon and is a decision which solely rests 
within Athens' authority and discretion.  Marathon contends that 
installation of the equipment on Athens' water tower is essential to 
maintaining radio communication between central dispatch and the 
western part of Marathon County.  In addition to normal radio 
communications, law enforcement and other personnel use portable 
radios or walkie talkies that would not be able to communicate with 
central dispatch without the equipment on Athens' water tower.  Thus, 
such is critical and essential for emergency and public safety 
communications in the western part of Marathon County.
In support of its waiver request, Marathon submits that the only 
affected path authorized under Station WNEW985 runs from Athens to 
Rib Mountain, Wisconsin and that both locations are in Marathon 
County, Wisconsin.  Further, the purposed modification which would 
transfer the equipment from the old water tower to the new water 
tower would not add to the relocation cost of existing ET licensees.  
In contrast, Marathon contends, there would be substantial financial 
impact to the County taxpayers if Marathon would not retain primary 
status and subsequently be forced to replace its current authorized 
path.  The only change being made is the relocation of the equipment 
because of the decision of Athens to tear down its existing water 
tower and construct a new tower.  Additionally, Marathon submitted a 
supplement purporting to show that its proposed change has been 
coordinated with affected parties or their designated coordination 
agents and that no unresolved interference issues exist.  Therefore, 
Marathon submits, waiving Section 101.81 to allow it to maintain 
primary status would be in the public interest because of the public 
safety and public necessity factors.
III.	DISCUSSION
Marathon's modification application seeks authorization for several 
types of changes.  Some of these changes are major modifications that 
will result in secondary status unless Marathon obtains a waiver.  
Section 101.81 provides that major modifications of 2 GHz band 
facilities will be authorized on a secondary basis to ET systems.  
Other changes, however, are minor modifications that will result in 
secondary status unless Marathon affirmatively justifies primary 
status and establishes that the modification will not add to the 
relocation costs of ET licensees.  Minor modifications will result in 
secondary status unless the incumbent affirmatively justifies primary 
status and establishes that the modification would not add to the 
relocation costs of ET licensees.  Some of the proposed changes, 
however, are technical changes that alone do not affect Marathon's 
ability to maintain primary status. 
Major Modifications.  Under the Commission's Rules, licensees may 
retain primary status if they make "technical" changes in location up 
to two seconds -- approximately 200 feet, or if they make changes in 
location of up to five seconds -- approximately 500 to 550 feet.  All 
changes in location greater than five hundred feet are accorded 
secondary status.  Here, Marathon's proposed change in location is 
approximately 1 mile (6024.48 feet).  Additionally, Marathon's 
associated changes, includes a more than 1 degree change in transmit 
azimuth, which under the Commission's rules is a major change.  
Without a waiver of Section 101.81, Marathon's modified license would 
be granted only on a secondary basis.
We may grant a waiver of a rule (a) when the underlying purpose of 
the rule would not be served by application to the instant case and a 
grant of the waiver is in the public interest, or (b) when in view of 
the unique or unusual circumstances of the case, application of the 
rule would be inequitable, unduly burdensome or contrary to the 
public interest, or the applicant has no reasonable alternative.  
Marathon argues that allowing it to maintain, after modification, 
primary status would serve the public interest.  Based on the record 
before us, we conclude that Marathon has shown that it meets the 
waiver standard.  Therefore, we will grant Marathon's request for 
waiver of Section 101.81 of the Rules.
Under the circumstances presented, we find that application of 
Section 101.81 would be inequitable and contrary to the public 
interest.  Absent a waiver, Section 101.81 would only permit 
authorization for Marathon to operate any substantially modified 2 
GHz band FMS station on a secondary basis to ET users.  Secondary 
licensees must not cause interference to primary licensees and must 
accept interference.  Consequently, there is a concern that 
Marathon's public safety and emergency services communications in a 
large part of the County would be vulnerable to interference.  
Because Marathon's 2 GHz FMS stations are at the center of a public 
safety communications network that police, fire, and other emergency 
services rely on to protect the health, safety and property of 
residents in Wisconsin's largest county, we are persuaded that 
imposition of secondary status on communications of this nature would 
pose a risk of serious adverse consequences to the public.  Further, 
we find it decisionally significant that  Marathon's proposed change 
in location and other associated changes are a direct result of 
Athens' decision to tear down its existing water tower, a decision 
that is outside of the control of Marathon.  Additionally, Marathon 
submits that there are no reasonable alternative sites within 200 
feet of the old tower and that it has coordinated its proposed 
modification with affected parties and no unresolved interference 
issues exist.  We therefore conclude that Marathon has demonstrated 
that grant of  a waiver of the Commission's Rules is warranted. 
Other Changes.  Marathon's modification application proposes numerous 
changes to the technical parameters of Station WNEW985 other than the 
change in location, including changes to the station's EIRP, ground 
elevation/centerline height, antenna height, and structure height. 
Some of these changes are technical changes under Section 101.81, but 
others are minor modifications.  Therefore, regardless of whether we 
decide that some of these changes should be treated as technical 
changes, Marathon must make the showing required by Section 101.81 to 
avoid redesignation to secondary status as a result of these 
modifications.  Moreover, the same showing is necessary to avoid the 
imposition of secondary status due to the changes in antenna height, 
structure height, EIRP, and ground elevation, which if not deemed 
technical changes, would be minor modifications.
As noted above, we believe that allowing Marathon to maintain primary 
status is critical to providing public safety services to the western 
part of the County.  We also find significant that the proposed 
relocation and associated changes in the technical parameters of 
Station WNEW985 are the direct result of Athens' decision to tear 
down Marathon's existing site, a decision outside of Marathon's 
control.  Marathon also stated that it was not adding or upgrading 
any equipment that would increase the potential relocation costs for 
a new licensee.  Indeed, Marathon states that it is transferring its 
equipment from the water tower to the new water tower.  We find that 
under these circumstances, Marathon has demonstrated its need for 
primary status.  We also find, based on the information before us, 
that granting primary status to Station WNEW985 will not add to the 
relocation costs of future ET licensees. Accordingly, we find that 
Marathon has justified maintaining primary status.
IV.	CONCLUSION
We conclude that Marathon has met the requirements of Section 1.925 
and 101.81 of the Commission's Rules.  Under the circumstances 
presented we find that waiver of the Commission's rules is warranted 
for the major modifications that Marathon seeks.  Further Marathon 
has affirmatively justified primary status while seeking Commission 
approval of minor modifications to its license, and established that 
the license modifications would not add to the relocation costs of ET 
licensees.
V.	ORDERING CLAUSES.  
Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the 
Communications Act of 1934, 47 U.S.C. § 154(i), and Sections 101.69 
and 101.81 of the Commission's Rules, 47 C.F.R. §§ 101.69, 101.81, 
the above-captioned applications to modify Marathon County Sheriffs 
Department's license to operate Call Sign WNEW985, SHALL BE PROCESSED 
in accordance with this Order and the applicable Commission Rules.
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 and 
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-04-574A1.doc

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