While there are a number of recent and ongoing measures, both in Congress and at the FCC, aimed at ensuring that there will be adequate public safety spectrum allocations to meet the critical needs of public safety entities, these measures are unlikely to bear fruit for quite some time. For instance, beginning in several years, the FCC`s refarming and public safety spectrum proceedings may provide some desperately needed relief to the spectrum shortage currently plaguing fire service and other governmental licensees. In addition, Congress currently appears to be moving forward on a bill that ultimately would make available for public safety use 24 MHz of spectrum in the band 746-806 MHz. This spectrum will not satisfy all existing requirements, however, as it is inappropriate for use in certain types of areas, including those of great topographical variation or heavy forestation. Moreover, although the current version of the bill (if enacted) would require the FCC to implement this measure in a relatively quick time frame, it is extremely unlikely that such a schedule realistically could be met.

In the meantime, what can be done to satisfy the immediate spectrum needs for those agencies responsible for preserving and promoting public safety? The most logical solution would be to handle critical public safety spectrum requirements on a case-by-case basis by, for example, using spectrum allocated for non-public safety services. The FCC states that it would do just that in its February 9, 1995, report entitled “Meeting State and Local Government Public Safety Agency Spectrum Needs Through the Year 2010.” In fact, the FCC`s statutory obligation to make spectrum allocation decisions in the public interest arguably necessitates such individualized consideration of public safety needs.

Unfortunately, the FCC has failed in a number of recent instances to follow through on its promise. During the past two

years, public safety entities such as the State of New Hampshire and California`s South Bay Regional Public Communications Authority have been denied requests for waiver of the FCC`s rules to utilize common-carrier frequencies in situations where appropriate public safety channels were unavailable. In an opinion released in the New Hampshire matter in May 1996, the FCC expressly deferred the State`s pressing needs to the FCC`s rule-making proceeding concerning public safety spectrum requirements–a proceeding initiated less than a month before the FCC issued the New Hampshire decision and which cannot be expected, as a practical matter, to offer relief for at least a number of years. At the same time, the FCC accepted and approved a competing application for commercial use of the involved channels, and it did so without requiring any demonstration of need or weighing the relative benefits to the public of the proposed alternative uses of these channels.

Similarly, in its South Bay decision, the FCC ignored the substantial public safety benefits of South Bay`s proposed system while expressing great concern that the granting of South Bay`s waiver request would limit the development of common-carrier paging systems. The FCC also reasoned, without reference to time frame, that additional public safety frequencies would become available through refarming.

Frustrated by the FCC`s handling of the South Bay and New Hampshire applications, U. S. Representatives Jane Harman and Julian Dixon of California introduced a bill on May 15, 1997, to require the licensing of certain unused common-carrier frequencies for public safety uses (H.R. 1626, the “Emergency Broadcast Frequency Assignment Bill”). Specifically, the bill would make it the policy of the FCC to waive licensee eligibility requirements to permit the public safety use of nonbroadcast common-carrier channels in the bands 152-159 MHz and 470-512 MHz by state or local government agencies that can demonstrate that (1) no other existing satisfactory public safety channel is immediately available to satisfy the requested use; (2) the proposed use is technically feasible without causing harmful interference to existing stations entitled to protection from such interference; and (3) the use of the channel for public safety purposes is consistent with other existing public safety channel allocations in the relevant geographic area. In a statement in support of this bill, Representative Harman explains, among other things, that there are no common police and fire voice channels available for interoperability in areas such as South Bay and that interoperability and greater capacity are among the most critical communications problems facing public safety entities.

On June 25, 1997, the floors of the House and Senate each approved budget-reconciliation language that incorporates the Harman/Dixon bill. If this measure were enacted, it could provide immeasurable relief to fire service and other public safety licensees whose immediate spectrum needs are not being met. Public safety agencies with pressing needs for additional channels should consider whether the Harmon/Dixon bill would be of assistance and, if so, act as quickly as possible to make their local representatives aware that this issue is of critical importance not only in California and New Hampshire but in other areas throughout the nation as well. n

MARTIN W. BERCOVICI is a partner at the Washington, DC, law firm of Keller and Heckman LLP.

NICOLE B. DONATH is an attorney in the law firm of Keller and Heckman LLP`s Telecommunications Practice Group.

The law firm of Keller and Heckman LLP, as counsel to the International Association of Fire Chiefs and the International Municipal Signal Association, is heavily involved in public safety telecommunications matters.

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