Narrowbanding Waiver Guidance
By Robert Gurss
Does your agency operate on radio frequencies below 512 MHz? If so, is your agency already operating on “narrowband” channels (i.e., 12.5 kHz or the equivalent)? If not, are you aware of the FCC requirement that such systems convert to narrowband no later than Jan. 1, 2013? Will your agency be ready?
If not, your agency may want to consider seeking a waiver of the requirements pursuant to recently released FCC guidelines, and you should try to do so before the end of this year.
On July 13, the FCC issued a Public Notice reiterating its narrowbanding requirements, clarifying related frequency coordination issues and setting forth factors that will be considered in evaluating waiver requests. Importantly, such requests “will be subject to a high level of scrutiny.” Thus, agencies must do much more than simply ask for a waiver.
The FCC’s rules allow it to waive its own rules if “(i) the underlying purpose of the rules(s) would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest,” or “(ii) in view of unique or unusual factual circumstances of the instant case, application of the rules(s) would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative.”
The Public Notice identifies the recommended content for requests for a waiver of the narrowbanding deadline. In particular, licensees should describe what steps have already been taken “to plan for, initiate and complete” narrowbanding. The FCC will probably have a negative view toward licensees that have ignored the well-publicized narrowbanding requirements up to now. Thus, if little has been done so far, you should try to explain why.
Waiver requests should also describe the system size and complexity, and if equipment is narrowband-capable or must be replaced. Note: Most radios purchased since the late 1990s have narrowband capability and need only be retuned to meet the FCC’s requirements (licenses also need to be modified). Older equipment will probably require replacement.
Licensees should describe the funding sources that may be available to pay for narrowbanding and indicate if they’re on a multi-year budgeting process. In the past, FCC staff have indicated that the lack of funding—standing alone—will not justify a waiver. That said, the FCC is well aware of the severe budget constraints facing many local governments. In my view, funding will at least be a relevant factor.
The FCC also wants to know if your narrowbanding schedule is affected by neighboring systems due to interoperability or other issues. Waiver applicants should describe plans to limit the impact of delayed narrowbanding on co-channel and adjacent channel operations. The goal of narrowbanding is to create additional channels for public safety users. Thus, waiver requests should indicate whether waiving the requirement for your agency will stymie another agency’s need for channel capacity. The extent to which channels are otherwise available may be an important mitigating factor.
In some cases, licensees may be reluctant to narrowband their existing systems because they’re in the process of migrating to 700 or 800 MHz systems. If documented, that is likely to be a favorable factor in any waiver consideration, especially if the migration will also lead to the release of current VHF/UHF channels.
The Public Notice further requests that licensees provide a proposed timetable for the completion of narrowbanding, including a description of the project’s current status and the steps that will be completed by Jan. 1, 2013. Specifically, waiver applicant should describe the anticipated dates for the commencement and completion of replacing or retuning of mobiles/portables and infrastructure.
More generally, the FCC recommends that licensees explain how “(i) they have worked diligently and in good faith to narrowband their existing systems expeditiously; (ii) their specific circumstances warrant a temporary extension of the deadline; and (iii) the amount of time for which a waiver is requested is no more than is reasonably necessary to complete the narrowbanding process.” The FCC “strongly” encourages that waiver requests be filed as soon as possible, preferably before the end of 2011.
The Public Notice also reminds licensees that a failure to meet FCC rules can result in “admonishments, license revocation, and/or monetary forfeitures.” Therefore, waiver requests shouldn’t be taken lightly and should be prepared by knowledgeable in-house experts with guidance from technical consultants and legal counsel, if possible.
Robert Gurss is APCO International’s regulatory counsel and an attorney with the telecommunications law firm Fletcher, Heald & Hildreth PLC. Contact him at 202/236-1743, or via e-mail at [email protected] or [email protected].
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