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Federal Communications Commission

DA 12-1483

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
TOWNSHIP OF WOODBRIDGE, NEW JERSEY )
File No. 0004536973
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Request for Waiver of Sections 20.9(a)(6), 22.621, )
22.623(b), 22.625(b)(1), 90.305(a), and 90.307(d)
)
of the Commission’s Rules
)

ORDER

Adopted: September 12, 2012

Released: September 13, 2012

By the Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau:

I.

INTRODUCTION

1.
The Township of Woodbridge, New Jersey (Woodbridge, or the Township), through its
Police Department filed an application and request for waiver to use, for public safety communications
purposes, seven frequency pairs from the 500-506 MHz (TV Channel 19) band located beyond 80
kilometers (50 miles) from Philadelphia, Pennsylvania,1 the maximum distance allowed under the
Commission’s rules.2 The Commission’s rules designate four of the frequencies for Part 22 point-to-
multipoint operations.3 As described herein, the application represents a swap of frequencies to enable
Woodbridge to avoid interference its public safety communications system currently experiences on
frequencies in the 506-512 MHz (TV Channel 20) band. However, a suspension on applications that
change frequencies in the 470-512 MHz band (T-Band) has been in effect since April 26, 2012.4
Accordingly, Woodbridge seeks waiver of this suspension.5 For the reasons stated below, we grant the
Waiver Request.

II.

BACKGROUND

2.
On December 5, 2008, the Public Safety and Homeland Security Bureau’s Policy
Division granted Woodbridge a waiver request to operate on fifteen frequency pairs in the TV Channel 20


1 File No. 0004536973 (filed Dec. 12, 2010, amended July 13, 2011, July 18, 2011, January 18, 2012, April 10, 2012,
and July 11, 2012), attachments entitled, “Application and Waiver Petition of Woodbridge Township, New Jersey”
(Waiver Request); “Supplemental Pleading” (dated Jan. 18, 2012) (Supplemental Pleading). Woodbridge seeks Part
22 frequencies 500.1875, 503.1875, 500.2125, and 503.2125 MHz; and Part 90 frequencies 501.3000, 504.3000,
501.4000, 504.4000, 501.5750, 504.5750, 501.7750, 504.7750, 501.8750, and 504.8750 MHz.
2 Waiver Request at 1; see also 47 C.F.R. § 90.305(a). The maximum base station distance from Philadelphia is
65.2 miles (104.9 kilometers). See Waiver Request at 5.
3 See 47 C.F.R. Part 22.
4 Wireless Telecommunications Bureau and Public Safety and Homeland Security Bureau Suspend the Acceptance
and Processing of Certain Part 22 and 90 Applications for 470-512 MHz (T-Band) Spectrum, Public Notice, 27 FCC
Rcd 4218 (WTB/PSHSB 2012) (Suspension Notice).
5 See File No. 0004536973 “Petition for Waiver of Woodbridge Township, New Jersey” (dated July 10, 2012)
(Suspension Waiver).

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DA 12-1483

band beyond 80 kilometers from Philadelphia, Pennsylvania.6 However, Woodbridge experienced
intermittent interference that it attributes to atmospheric ducting from co-channel digital TV station
WCCT-TV, Waterbury, Connecticut.7 The Township contends that the interference “disables
Woodbridge’s system for an unacceptable periods of time for police, fire and emergency response to rely
on” because “[t]he network’s portable radios are unable to communicate back to the system.”8
3.
The instant application and waiver request represents the second of two applications to
remedy the interference.9 Woodbridge states that “[t]his second application will substitute frequencies
within the 500-506 MHz band segment for the remaining channel 20 frequency pairs still licensed.”10
Woodbridge commits to returning the TV Channel 20 frequencies to the Commission as soon as the
replacement frequencies are deployed and operating.11
4.
In support of its Waiver Request, Woodbridge argues that use of T-Band frequencies will
allow its “investment to be preserved.”12 Woodbridge argues that “examination of the VHF, UHF, 470
MHz, and 800 MHz bands presents no alternatives.”13 Woodbridge states that “[c]hannels in the 700
MHz band were considered,” but “in addition to the challenge that there are more agencies seeking
channels than capacity available and length of the review leading to licensing, Woodbridge’s system was
designed and deployed to use UHF spectrum.”14 Woodbridge asserts that it “knows of no reasoned path
to integrate, in a cost efficient manner, [into] its current infrastructure, 700 MHz frequencies.”15
5.
On July 23, 2012, the Public Safety and Homeland Security Bureau (Bureau) issued a
public notice16 seeking comment on the applications and Waiver Request. The Enterprise Wireless
Alliance filed comments in support of the Township’s request.17

III.

DISCUSSION

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


6 Waiver Request at 2. See Township of Woodbridge, Order, 23 FCC Rcd 17406 (PSHSB PD 2008) (Woodbridge
2008 Order), and licenses for call signs WQJS363 and WQJS365.
7 See Waiver Request at 2. On June 18, 2010, Station WTXX changed its call sign to Station WCCT-TV.
8 Waiver Request at 2.
9 Id. at 2-3. On August 3, 2010, the Policy Division granted the first of the two applications and an associated
waiver request to use six frequency pairs within TV Channel 16. See Township of Woodbridge, New Jersey, Order,
25 FCC Rcd 10917 (PSHSB PD 2010) (Woodbridge 2010 Order), and license for call sign WQMI704.
10 Waiver Request at 3.
11 Id.
12 Waiver Request at 7.
13 Id.
14 Id. As we noted above, Woodbridge is operating on TV Channel 20 band frequencies.
15 Waiver Request at 7.
16 See Public Safety and Homeland Security Bureau Seeks Comment on Request for Waiver Filed By the Township
of Woodbridge, New Jersey to Operate a Trunked Public Safety Communications System Using Part 90 and Part 22
Frequencies in the Television Channel 19 (500-506 MHz) Band, Public Notice, 27 FCC Rcd 8238 (PSHSB 2012).
17 File No. 0004536973, Comments of the Enterprise Wireless Alliance, filed Aug. 7, 2012.
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present case, and that a grant of the waiver would be in the public interest;18 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.19 An
applicant seeking a waiver faces a high hurdle and must plead with particularity the facts and
circumstances that warrant a waiver.20 Based on the information before us, we conclude that a grant of
the Waiver Request is warranted.
7.
Section 90.305. The TV Channel 19 band is available for private land mobile radio
service (PLMRS) entities, including public safety entities, in the Philadelphia, Pennsylvania urbanized
area.21 Because the proposed frequencies are not available for use by PLMRS entities in the Northern
New Jersey area, Woodbridge seeks a waiver of Section 90.305(a).22 This rule provides that base station
transmitter sites must be located within 80 kilometers (50 miles) from the geographic center of an
urbanized area listed in Section 90.303.23 Frequencies in the 500-512 MHz band (TV Channels 19 and
20) are available for assignment to PLMR users with base stations within fifty miles of the City of
Philadelphia, Pennsylvania center coordinates.24 Woodbridge’s base stations are located a maximum of
65.2 miles (104.9 kilometers) from the Philadelphia geographic center coordinates.25 Woodbridge notes
that “the Commission has granted waivers for numerous agencies and private licensees to operate land
mobile operations within 500-506 MHz … throughout NE New Jersey, NW Pennsylvania, and SE New
York.”26 The Township argues that its proposed operations “will be a de minimis addition to the current
500-506 MHz environment.”27
8.
The Commission established these mileage restrictions to protect over-the-air broadcast
operations on TV Channels 14-21 located outside of these cities from harmful interference from PLMR
systems operating in the 470-512 MHz band.28 While this is a concern, we note that Woodbridge entered
into a Memorandum of Understanding with Mountain Broadcasting Corporation, the licensee of adjacent
channel TV Station WMBC, Montclair, New Jersey, on TV Channel 18.29 Moreover, because the
northern New Jersey area is well-populated with public safety agencies that surround Woodbridge and


18 47 C.F.R. § 1.925(b)(3)(i).
19 47 C.F.R. § 1.925(b)(3)(ii).
20 WAIT Radio v. FCC, 413 F.2d 1153, 1157 (D.C. Cir. 1969) (WAIT Radio), aff’d, 459 F.2d 1203 (1973), cert.
denied, 409 U.S. 1027 (1972) (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664 (D.C. Cir.
1968)); Birach Broad. Corp., Memorandum Opinion and Order, 18 FCC Rcd 1414, 1415 (2003).
21 See 47 C.F.R. §§ 90.303, 90.305(a).
22 See Waiver Request at 5.
23 See 47 C.F.R. §§ 90.303, 90.305(a). While these rules apply to the Part 90 frequencies, Woodbridge also would
need a waiver of 47 C.F.R. § 22.625(a)(1) to use the Part 22 frequencies at locations more than 80 kilometers from
Philadelphia.
24 See 47 C.F.R. § 90.303.
25 See Waiver Request at 5.
26 Waiver Request at 4-5.
27 Id. at 5.
28 See Further Sharing of the UHF Television Band by Private Land Mobile Radio Services, Notice of Proposed
Rulemaking, Gen. Docket No. 85-172, 101 F.C.C. 2d 852 (1985).
29 See Waiver Request, Attachment 2, Memorandum of Understanding between the Township of Woodbridge, New
Jersey, and Mountain Broadcasting Corporation (May 11, 2010).
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operate on frequencies in the TV Channel 19 band by waiver, we conclude that the underlying purpose of
Section 90.305 would not be served or would be frustrated by application to the present case.
9.
Section 90.307(d). Because Woodbridge proposes to operate in an area less than 145
kilometers (ninety miles) from the TV Station WMBC, Montclair, New Jersey, it requests a waiver of
Section 90.307(d).30 Woodbridge’s base stations range in distance from 30.9 to 39.7 kilometers from
Station WMBC.31 As we noted above, Woodbridge entered into a Memorandum of Understanding with
Mountain Broadcasting Corporation that permits both parties’ operations to coexist. Accordingly, we
conclude that the underlying purpose of Section 90.307(d) would not be served or would be frustrated by
application to the present case.
10.
Section 22.621. The underlying purpose of Section 22.621 is to reserve certain
frequencies “for assignment to transmitters utilized within point-to-multipoint systems that support
transmitters that provide public mobile service.”32 Accordingly, we evaluate the Part 22 licensing
landscape in the Philadelphia and New York metropolitan areas. There are no Part 22 entities licensed on
the frequencies 500.1875, 503.1875, 500.2125, and 503.2125 MHz in the Philadelphia area. Section
22.621 does not make these frequencies available for point-to-multipoint use in the New York area.
Further, potential use of the frequencies by Part 22 entities would be severely constrained by co-channel
public safety licensees Nassau County Police Department, New York (Nassau) in the New York area, and
the County of Burlington, New Jersey (Burlington) in the Philadelphia area.33 Moreover, The Township
obtained conditional concurrences from Nassau and Burlington.34 Based on the foregoing analysis, we
find that the underlying purposes of Sections 22.621 would not be served or would be frustrated by
application to the present case.
11.
Section 20.9(a)(6). Section 20.9(a)(6) presumes that the proposed frequencies will be
reserved for common carriage services and regulated as commercial mobile radio services.35 Woodbridge
states that “[i]f the Commission determines that Woodbridge’s use of the frequencies for public safety
communications is appropriate, the purpose of section 20.9(a)(6), that Woodbridge’s use be accompanied
by common carriage responsibilities, would not be served” and “would undermine effective public safety
communications.”36 Because we find that it is in the public interest to allow Woodbridge to use
frequencies 500.1875, 503.1875, 500.2125, and 503.2125 MHz for public safety purposes, we conclude
that the underlying purpose of Section 20.9(a)(6) would not be served by its application to the present
case.


30 See id. at 6. See also 47 C.F.R. § 90.307(d). A land mobile base station which has associated mobile units must
be separated from a protected adjacent channel television station by a minimum distance of 145 kilometers (90
miles). Id.
31 Waiver Request at 24-26.
32 47 C.F.R. § 22.621.
33 See Supplemental Pleading at 1-2.
34 See Waiver Request, Attachment 3, Letter from Lieutenant Thomas M. Golder, Nassau County Police Department
to Federal Communications Commission (dated July 13, 2010); File No. 0004536973, attached Letter from Richard
K. Dreby, Director, Public Safety Services, County of Burlington, to Federal Communications Commission (dated
June 23, 2010).
35 See 47 C.F.R. § 20.9(a)(6).
36 Supplemental Pleading at 2.
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12.
Section 22.623(b). Section 22.623(b) requires that the channels may be assigned in an
unpaired configuration only to control base stations in the public mobile service.37 Woodbridge states
that “[t]he purpose of Rule 22.623(b), to format how frequencies are assigned and deployed, would not be
served as it is directed to point to multi point operation services under Part 22” rather than “the public
safety service, where channel pairs for base and mobile operations is the norm.”38 Since the Township
would not be operating a paging control channel on these frequencies, the underlying purpose of Section
22.623(b) would not be served by application to the present case.
13.
Section 22.625(b)(1). Section 22.625(b)(1) requires that control transmitter locations
must be within 80 kilometers (50 miles) of the designated location, in this case, Philadelphia.39 This rule
is the Part 22 counterpart to Section 90.305(a) in Part 90. The underlying purpose of Section
22.625(b)(1) would not be served because we came to the same conclusion for Section 90.305(a).
14.
T-Band Suspension. On April 10, 2012, Woodbridge filed a letter40 to further describe its
request in light of the Middle Class Tax Relief and Job Creation Act of 2012,41 which President Barack
Obama signed into law on February 22, 2012. Woodbridge states that “[a]ll infrastructure and subscriber
equipment supporting the system have been deployed.”42 Woodbridge states that “[m]igration to the
proposed channel 19 frequency pairs requires only software and conformance adjustments to the
infrastructure and subscriber equipment, the cost of which has been authorized and funded.”43
Woodbridge contends that its “proposal, including returning all channel 20 frequency pairs to the
Commission, will not encroach upon the Commission reallocating the 470-512 MHz band to commercial
services or add costs to the relocation process.”44 Woodbridge states, “Public Law 112-96 does not
preclude modifications to public safety licensees in the 470-512 MHz band segment.”45
15.
On April 26, 2012, the Wireless Telecommunications Bureau and the Public Safety and
Homeland Security Bureau (Bureaus) issued a public notice announcing a limited suspension of the
acceptance and processing of certain applications for Part 22 and Part 90 services operating in the 470-
512 MHz spectrum band (T-Band)46 that could alter the spectrum landscape. The purpose of the
suspension is to stabilize the spectral environment while the Commission considers issues surrounding


37 47 C.F.R. § 22.623(b).
38 Supplemental Pleading at 2.
39 47 C.F.R. § 22.625(b)(1).
40 See File No. 0004536973, Letter from Captain Scott Kuzma, Commanding Officer, Information and Technology
Systems, Woodbridge Police Department, to Mr. David Furth, Deputy Chief, Public Safety and Homeland Security
Bureau (dated April 10, 2012) (Kuzma Letter).
41 See Pub. L. No. 112-96, 126 Stat. 156 (2012) (Spectrum Act). Section 6103 of the Spectrum Act provides that,
not later than nine years after the date of enactment, the Commission shall “reallocate the spectrum in the 470-512
MHz band … currently used by public safety eligibles ….” Id., § 6103(a). The Act instructs the Commission to
“begin a system of competitive bidding under Section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j))
to grant new initial licenses for the use of the spectrum.” Id. It also provides that “relocation of public safety
entities from the T-Band Spectrum” shall be completed not later than two years after completion of the system of
competitive bidding.” Id., § 6103(b), (c).
42 See Kuzma Letter at 2.
43 Id. at 2.
44 Id. at 2.
45 Id. at 3.
46 See Suspension Notice.
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future use of the T-Band and implementation of the Spectrum Act.47 The Bureaus “conclude[d] that
prudent spectrum management dictates that we should stabilize the existing spectrum landscape by
suspending the acceptance and processing of T-Band licensing applications that could alter the spectrum
landscape andthereby make implementing the Act more difficult or costly.”48 Specifically, the Bureaus
will not accept or process applications for applications that seek to modify existing licenses by, inter alia,
changing frequencies,49 which affects Woodbridge’s application. The Suspension Notice provides that
applicants may have recourse to the waiver provisions in Section 1.925 to request an exception to the
filing and processing suspension.50
16.
On July 10, 2012, Woodbridge filed a request for waiver of the Suspension Notice.51
Woodbridge details two ducting interference incidents on June 12, and July 3, 2012, that disabled the
public safety radio services operating on the TV Channel 20 frequencies for most of the day.52 The
Township notes that “[e]ach circumstance had a profound and negative [effect] on emergency response
and all government services in Woodbridge and the adjoining municipality the system now serves, and
engages the Township’s senior leadership at each occurrence.”53 Woodbridge reiterates that it has no
reasonable alternative and argues that “channel 19 frequencies are the only path to resolve the difficult
and dangerous environment.”54 Moreover, Woodbridge argues, “[b]y exchanging the channel 20
frequencies, Woodbridge gains no leverage in a transition and relocation from the 470-512 MHz band.”55
Woodbridge continues, “[y]et, its emergency response responsibilities, and that of adjacent
municipalities, will be meaningfully improved because ducting will no longer disable the system’s
portable and mobile radios.”56 The Township states that the channel exchange “will correct an
unacceptable environment endangering the public and responding officers.”57
17.
Although we need only find that Woodbridge satisfies one prong of the waiver standard,
Woodbridge satisfies both prongs. First, based on the record, we find that grant of the application would
not frustrate the purpose of the Suspension Notice and is in the public interest. Because Woodbridge’s
migration to TV Channel 19 frequency pairs requires only software and conformance adjustments to the
infrastructure and subscriber equipment rather than investment in new infrastructure and equipment, grant
of the application would not make implementing the Spectrum Act more costly than it would be if
Woodbridge remained on TV Channel 20. A grant, combined with Woodbridge’s commitment to return
its Channel 20 frequencies, would also decrease the degree to which the T-Band currently is licensed,


47 Id. at 1-2.
48 Id. at 1.
49 See id. at 2.
50 Id., note 4.
51 See File No. 0004536973, attachment entitled, “Petition for Waiver of Woodbridge Township, New Jersey”
(dated July 10, 2012) (T-Band Suspension Waiver).
52 See id. at 4.
53 Id.
54 Id.
55 Id.
56 Id. at 4-5.
57 Id. at 5.
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which is consistent with the intent of the Suspension Notice.58 Second, we find that, in view of unique or
unusual factual circumstances of the instant case, Woodbridge has no reasonable alternative to swapping
frequencies within the T-Band. By detailing recent ducting interference events, Woodbridge adequately
presents the unique and factual circumstances of the instant case. Woodbridge has no alternative in any
other spectrum band that would allow it to preserve its investment in its T-Band communications
system.59 Within the T-Band, the Commission’s rules allow Woodbridge to use frequencies within TV
Channels 14 and 15 (470-482 MHz) within the New York City urbanized area,60 but previous decisions
have found the UHF band, which includes T-Band, to be exhausted in this area.61 Finally, remaining on
TV Channel 20 band spectrum is an untenable option due to the risk of further ducting interference.
18.
Public Interest. We find that the public interest would be served by grant of the
application. The documented cases of interference shows that ducting on TV Channel 20 creates an
unacceptable operating environment that endangers responding officers, and as a result, their ability to
protect the safety of life and property. Migration from TV Channel 20 to TV Channel 19 frequencies,
combined with the Township’s TV Channel 16 operations, will improve the Township’s emergency
response responsibilities because ducting, which appears to be limited to TV Channel 20 based on
anecdotal evidence, will no longer disable the system’s portable and mobile radios. We find it in the
public interest to allow Woodbridge to correct this problem and improve its communications reliability in
the limited yet not fully determined period of time leading up to the impending migration of all public
safety users off the T-Band. Accordingly, we waive the rules listed above and the provisions of the
Suspension Notice.

IV.

ORDERING CLAUSES

19.
Accordingly, IT IS ORDERED pursuant to Sections 4(i) of the Communications Act of
1934, as amended, 47 U.S.C. § 154(i), and Section 1.925 of the Commission’s rules, 47 C.F.R. § 1.925,
that the Waiver Request associated with application File No. 0004536973, filed by the Township of
Woodbridge on December 12, 2010, as amended, IS GRANTED.
20.
IT IS FURTHER ORDERED that application File No. 0004536973 SHALL BE
PROCESSED consistent with this Order and the Commission’s rules.
21.
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
Thomas J. Beers
Chief, Policy and Licensing Division
Public Safety and Homeland Security Bureau


58 See T-Band Suspension Waiver at 2. The Suspension Notice indicates that the Bureaus would not process “any
other application that could increase the degree to which the 470-512 MHz band currently is licensed.” Suspension
Notice at 2.
59 See supra para. 4.
60 See 47 C.F.R. §§ 90.303, 90.305(a).
61 See Woodbridge 2008 Order, Woodbridge 2010 Order.
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