Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of ) PS Docket No. 06-229

)
Request by the City and County of San )
Francisco, City of Oakland, and City of San )
Jose for Waiver of the Commission’s Rules to )
Allow Establishment of a 700 MHz )
Interoperable Mobile Public Safety Broadband )
Network )

REQUEST FOR WAIVER

CITY AND COUNTY OF SAN FRANCISCO CITY OF OAKLAND

MAYOR GAVIN NEWSOM MAYOR RON DELLUMS

By and through its attorney: By and through its attorney:

DENNIS J. HERRERA JOHN A. RUSSO

City Attorney City Attorney
THERESA L. MUELLER CELSO ORTIZ
THOMAS J. LONG Deputy City Attorney
Deputy City Attorneys 1 Frank Ogawa Plaza, 6TH FL.
City Hall Oakland, California 94612
1 Dr. Carlton B. Goodlett Place, Suite 234 Telephone: (510) 238-6236
San Francisco, California 94102-5408 Fax: (510) 238-6500
Telephone: (415) 554-6548 E-Mail: cortiz@oaklandcityattorney.org
E-Mail: thomas.long@sfgov.org

CITY OF SAN JOSE

CITY MANAGER DEBRA FIGONE

By and through its attorney:

RICHARD DOYLE
City Attorney
BRIAN DOYLE
Senior Deputy City Attorney
200 East Santa Clara Street
San Jose, CA 95113
Telephone: (408) 535-1908
E-mail: brian.doyle@sanjoseca.gov March 24, 2009
 TABLE OF CONTENTS

REQUEST FOR WAIVER ..............................................................................................................1

I. SUMMARY OF REQUEST ....................................................................................1
II. BACKGROUND .....................................................................................................2
A. The Bay Area Cities and the Bay Area UASI..............................................2
B. Bay Area Regional Interoperable Communications Program (BayRICS) ..2
C. Relevant Commission Actions .....................................................................4
D. Uncertainty Regarding the Commission's Plan ...........................................5
III. THE COMMISSION SHOULD GRANT THE REQUESTED WAIVER TO
ALLOW THE SAN FRANCISCO BAY AREA REGION TO CARRY OUT
ITS PLANS TO BUILD AN INTEGRATED INTEROPERABLE VOICE AND
DATA NETWORK FOR PUBLIC SAFETY USERS. ...........................................6
A. Applicable Standard .....................................................................................6
B. Depriving the San Francisco Bay Region of Spectrum that It Needs for
Its Integrated Voice and Data Network Would Not Serve the
Commission's Goals and Would Frustrate the Public Interest .....................7
C. Given the Particular Circumstances of the Bay Region, Depriving the
Region of Spectrum for Its Integrated Voice and Broadband Network
Would Be Contrary to the Public Interest ....................................................9
IV. CONCLUSION ......................................................................................................10
 Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of ) PS Docket No. 06-229

)
Request by the City and County of San )
Francisco, City of Oakland and City of San )
Jose for Waiver of the Commission’s Rules to )
Allow Establishment of a 700 MHz )
Interoperable Mobile Public Safety Broadband )
Network )

REQUEST FOR WAIVER

I. SUMMARY OF REQUEST

Pursuant to Section 47 C.F.R. § 1.925(b)(3), the City and County of San Francisco, the City of

Oakland, and the City of San Jose (“Bay Area Cities”), as members of the Bay Area Urban Area

Security Initiative (“Bay Area UASI”), respectfully submit this Request for Waiver of the

Commission’s rules to allow the Bay Area Cities to use the public safety broadband spectrum in the

700 MHz band to deploy a regional, mobile, interoperable public safety broadband network.

The Bay Area UASI, a regional cooperation organization which includes the ten Bay Area

counties, is poised to begin design and construction of an interoperable public safety voice and data

network in the San Francisco Bay Area Region (“Region”). Granting the requested waiver would

allow the Bay Area Cities, in conjunction with the Bay Area UASI, to move ahead with the design and

construction of both the voice network and an integrated public safety broadband network at the same

time. The result would be significant cost savings, efficiency benefits, and the accelerated availability

of an integrated voice and broadband public safety network serving more than 7,000,000 people in

Northern California, all of which strongly serves the public interest and supports the Commission's

goals.

Accordingly, the Bay Area Cities seek a waiver of the Commission’s rules to grant them the

authorization to use the public safety broadband 700 MHz spectrum (763-768/793-798 MHz). This

1
waiver would enable the Bay Area Cities, working with the Bay Area UASI, to immediately begin

planning and implementation of a regional public safety wireless broadband network and begin

serving first responders within two years from the granting of the waiver.

Upon approval of the waiver request, the Bay Area Cities would submit the appropriate forms

and pleadings to effectuate the necessary licensing changes.

II. BACKGROUND
A. The Bay Area Cities and the Bay Area UASI

The parties submitting this request, the Bay Area Cities, are the three largest cities in the
Region. In turn, the Bay Area Cities are three of the principal members of the Bay Area UASI, a

regional cooperation organization. In addition to Oakland, San Francisco, and San Jose, the Bay Area

UASI comprises ten counties (Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa

Clara, Santa Cruz, Solano, and Sonoma), more than 100 incorporated cities, four port districts, a

number of special districts, and over ten regional transportation agencies. The UASI was established in

January of 2006, when the federal government consolidated the urban areas of San Francisco, Oakland

and San Jose, along with the surrounding ten counties, into a single region for purposes of allocating

UASI grant money.

The Region is the nation’s fifth largest urban area with a population over 7,000,000. Over 250

public safety agencies serve the Region. These agencies provide comprehensive public safety services

to the Bay Area residents. Communications are an integral part of this function.

The Bay Area UASI is dedicated to regional cooperation in building and operating public

safety infrastructure to provide the highest feasible level of prevention, protection, response and

recovery from acts of terrorism and other catastrophic events in the Bay Area region. The Bay Area

UASI manages $153 Million in Federal and State Grants, and has a governance structure in place to

effectively manage the implementation of projects throughout the region.

B. Bay Area Regional Interoperable Communications Program (BayRICS)

Since 2004, the local governments comprising the Region have been planning and

building for a mission-critical interoperable voice and data system. To achieve this goal, in 2007, the

2
Region established the Bay Area Regional Interoperable Communications System (BayRICS)

program, which is a collaborative initiative of the three Bay Area Cities and the surrounding ten

counties.

The Bay Area UASI has secured federal and state grant funding for the BayRICS program and

will soon launch competitive solicitations for the design and construction of the network. As part of

the BayRICS program, the Region plans to take advantage of millions of dollars in existing assets to

build, own and operate an interoperable Project 25 Land Mobile Radio System for voice

communications. The existing capital available for the program includes sites, towers, backhaul,
power systems, infrastructure, and personnel. In the Bay Area Cities, infrastructure investments for

the network have begun, with the intention to take advantage of the 700MHz narrowband spectrum

recently made available to public safety users.

The Region could deploy a broadband data system with a relatively small incremental

investment beyond the funding needed for the Land Mobile Radio network, by taking advantage of the

same capital and resources utilized in deploying the voice network. Should the waiver be granted, the

Region has the ability to utilize the 10 MHz of public safety broadband spectrum to supplement the

Project 25 Voice Radio Network, and to deploy an integrated and interoperable voice and data

network for the San Francisco Bay Area. Upon the approval of this request, the Bay Area Cities

would work with the Bay Area UASI toward the goal of deploying such an integrated and

interoperable network.

To accomplish an accelerated deployment of a 700MHz voice and broadband system

throughout the Bay Area, the Region could take advantage of the regional cooperation permitted by

the Bay Area UASI and utilize a combined competitive procurement process to obtain the equipment

and services necessary to build out a regional voice and broadband system. Funding for the

infrastructure would come from federal and state grant programs, as well as initial investment from the

participating cities and counties. It is estimated that the procurement process would take twelve to 18

months, with build out beginning no later than 2011.

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 The success and effectiveness of the BayRICS program hinges on the ability to provide not just

voice service, but also wireless broadband data service to the Region's first responders and supporting

agencies. Use of the 700MHz public safety broadband spectrum is a critical need for the Region.
C. Relevant Commission Actions

In the Second Report and Order,1 the Commission adopted rules that would establish a public-

private partnership to control the upper portions of the 698-806 MHz band (“700 MHz Band”). The

rules provided that the winning bidder of the commercial license in the Upper 700 MHz D Block (758-

763/788-793 MHz) (“D Block”) would enter into a public-private partnership with the nationwide

licensee of the public safety broadband spectrum (763-768/793-798 MHz) (“Public Safety Broadband

Licensee”) to construct a nationwide broadband network, which would share both the commercial D

Block and public safety spectrum.

The Commission concluded that the public-private partnership would serve its objective “to

maximize public safety access to interoperable, broadband spectrum in the 700 MHz Band, and to

foster and promote the development and deployment of advanced broadband applications using

modern, IP-based system architecture.”2 In particular, the Commission found that this approach would
address "the most significant obstacle to constructing a public safety network – the limited availability

of public funding" and would provide “the most practical means of speeding deployment” of the

desired nationwide, interoperable public safety broadband network.3 Thus, two of the Commission's

key goals in adopting the public-private partnership were overcoming financial hurdles and enabling

public safety agencies to gain the considerable benefits of a broadband network as quickly as

possible.4

1
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150, Second Report and
Order, 22 FCC Rcd 15289 (2007) (Second Report and Order) recon. pending.
2
Id. , ¶ 396
3
Id.
4
The Commission has repeatedly noted the many potential benefits of broadband service to public safety,
including: allowing police officers to exchange mug shots, fingerprints, photographic identification, and enforcement
records; allowing firefighters to have access to floor and building plans and real-time medical information; providing high
resolution photographs and real-time video monitoring of crime scenes to incident command centers. See, e.g., Service
Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150, Third Further Notice of Proposed
Rulemaking, 23 FCC Rcd 14301 (2008) (Third Further Notice), ¶ 51 and fn. 98.

4
 In Auction 73, the auction of commercial 700 MHz licenses that concluded March 18, 2008,

bidding for the D Block license did not meet the applicable reserve price of $1.33 billion. Pursuant to

the Commission’s rules, there was no winning bid for that license. The Commission has since

proposed rules that would maintain the public-private partnership and re-auction the D Block with a

lowered reserve price and reduced build out and service requirements.5

Notably, the Commission has proposed to relax its requirement that the winning bidder commit

to a single nationwide network and has proposed to allow bids for regional networks in the belief that

the goal of nationwide interoperability can still be achieved through roaming and other interoperability

requirements.6 The Commission now recognizes that regional networks can be fully compatible with
the goal of nationwide interoperability.

In addition, the Commission recognizes that regional networks could offer significant benefits,

such as ensuring that public safety communications are “tailored to meet unique local needs in

particular geographic areas.”7 As the Commission explained in the Third Further Notice, a regional

licensee could “take into account regional differences in terrain and public safety needs in determining

how to set up and operate the system, which could be more cost effective in certain respects and better

suited to regional needs than a one-size-fits-all system.”8

D. Uncertainty Regarding the Commission's Plan

One year after the failure of Auction 73 to produce a winning bidder, significant questions

remain about the viability of the Commission's public-private partnership proposal. One potential

bidder, Verizon Wireless, has raised questions about whether it is reasonable to expect carriers to bid

anything at all for the D Block under the public- private partnership approach.9 San Francisco,

Oakland and San Jose, along with several other large cities including New York, Boston, Denver and

5
See generally Third Further Notice.
6
Third Further Notice, ¶¶ 65, 70.
7
Id., ¶ 71.
8
Id.
9
See Third Further Notice, ¶ 56, fn. 107 (quoting comments from Verizon Wireless as follows: “the D Block and
public safety broadband spectrum are not worth nearly enough to offset the massive cost of building a national broadband
network to the mission-critical specifications of public safety . . . even if the D Block were given away for free”).

5
Seattle, have opposed the Commission’s proposed rules, and have generally lost confidence that the

public private partnership plan will be successful as the means for promoting the rapid construction

and deployment of a nationwide, interoperable broadband public safety network. Among other

concerns, San Francisco and Oakland have pointed out that the proposed $48.50 per month fee per

public safety user would be uneconomical compared to the cost of building and operating a network

themselves.10 These cities further believe that if such a network is eventually deployed, it will be

inadequate to serve the public safety and homeland security needs of large urban areas.

The uncertainty surrounding the 700 MHz public safety spectrum is a major roadblock to the

Region’s urgent desire and need to build and operate a public safety broadband network now. Urban

areas such as the Bay Area Region simply cannot afford to wait ten to fifteen years for a nationwide

carrier to build this network -- particularly since there are no assurances that the final result will be

sufficiently hardened, have sufficient capacity, and will be otherwise adequate to serve the Region’s

public safety needs during catastrophic events and disasters.

As described above, the Region has the resources and ability to construct its own network now.

All the Region lacks is the broadband spectrum to complete it.

III. THE COMMISSION SHOULD GRANT THE REQUESTED WAIVER TO ALLOW

THE SAN FRANCISCO BAY AREA REGION TO CARRY OUT ITS PLANS TO
BUILD AN INTEGRATED INTEROPERABLE VOICE AND DATA NETWORK FOR
PUBLIC SAFETY USERS.
A. Applicable Standard

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

present case, and that a grant of the waiver would be in the public interest; 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.11

10
Comments of the Joint Urban Cities and Counties in Response to the Third Further Notice of Proposed
Rulemaking, Nov. 3, 2008, p. 7
11
47 C.F.R. § 1.925(b)(3).

6
An applicant seeking a waiver faces a high hurdle and must plead with particularity the facts and

circumstances that warrant a waiver.12

Although a successful waiver petition needs to satisfy only one of the two tests, the Bay Area

Cities will demonstrate that this request satisfies both tests.

B. Depriving the San Francisco Bay Region of Spectrum that It Needs for Its
Integrated Voice and Data Network Would Not Serve the Commission's Goals and
Would Frustrate the Public Interest

Under the first test, the waiver request should be granted if: (a) denying the Bay Area Cities the

use of the broadband spectrum, in the hope that the public-private partnership plan will succeed, would

not serve the underlying purposes of the Commission's plan, and (b) granting the waiver would be in

the public interest. The waiver request easily meets both requirements.

As shown above, the underlying purposes of the Commission's plans are to overcome the lack

of funding for public safety broadband networks and to speed their deployment. The Commission is

concerned that a lack of appropriated funding sources will prevent the spectrum from ever being

utilized. And recognizing the enormous benefits of wireless broadband services for first responders,

the Commission wisely wishes to have public safety broadband networks available for use as quickly

as possible. These goals drove the Commission to adopt a public-private partnership approach under

which the D Block and public safety spectrum would be shared by national licensees. With the failure

of Auction 73 and the uncertainties regarding the Commission's plan that have been aired by key

stakeholders, it is unclear whether the Commission's current plan will serve its goals.

Whether or not the Commission revamps its general approach, it is clear that, with respect to

the San Francisco Bay Area Region, the current plan does not serve the Commission's purposes. The

Bay Area Region, representing over 7,000,000 people, stands ready to deploy a state-of-the-art

integrated interoperable voice and data network, known as BayRICs. The Region can meet its own

funding needs, without the participation of a commercial partner, by taking advantage of the synergies

resulting from simultaneously designing and building the voice and data parts of the network. As

noted above, the Region has secured funding to build the voice part of the network and is poised to

12
WAIT Radio v. FCC, 413 F.2d 1153, 1157 (D.C. Cir. 1969), 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)).

7
implement that effort. Many of the same steps that are required to build the voice network -- such as

hiring consultants, managing the competitive solicitation process, and installing the communications

infrastructure -- apply equally to building the broadband part of the network. By designing and

constructing an integrated voice and data network at the same time, the Region can avoid duplicated

effort, efficiently marshal its resources and secure the necessary incremental funding. However, the

Region will only be able to make such efficient use of limited federal, state and local resources if the

Commission grants the requested waiver and allows public safety agencies within the Region to use

the public safety broadband spectrum now.

Were the Commission to deny the waiver, the Commission would frustrate its articulated goals.

The Bay Area Region would lose a one-time opportunity to efficiently fund a public safety broadband

network. And, instead of obtaining the benefits of a broadband network in the next few years, the

Region would have to wait an unknown period of time, possibly a decade or longer, for a commercial

provider to build out a network that may be neither cost effective nor adequate to meet public safety

requirements.

Granting the waiver would unequivocally serve the public interest. Above all, 7,000,000

Americans in the nation's fifth largest urban area would benefit from the enhanced abilities of first

responders to prevent and respond to all types of disasters. Critical first responder tools, such as

instant access to criminal databases for suspect information, improved situational awareness using

video technologies, and real time tracking of assets, firefighters and resources, would be available

throughout the region. For example, utilizing a shared voice and broadband data network, a fire chief

at an incident scene could communicate directly with a power utility worker, while downloading

critical building floor plan information, and uploading video to Incident Command. A police

commander could communicate with mutual aid partners, such as the California Highway Patrol, or

federal partners, to secure perimeters and effectively deploy resources.

The public interest benefits would extend beyond the Bay Region. The United States' leading

high-tech hub would become both a testbed and a showcase for the entire nation of the benefits to

public safety from “advanced broadband applications using modern, IP-based system architecture.”13
13
Second Report and Order, ¶ 396.

8
The nation's homeland security would be improved, as a region that is one of the most likely targets of

a potential terrorist attack would be better prepared. And scarce national resources for public safety

would be saved by designing and constructing the broadband network at the same time as the voice

network.

The Bay Area Cities also recognize and support the goal of nationwide interoperability. As the

Commission recognized in its Third Further Notice, a regional network can be made fully compatible

with this goal. To ensure nationwide interoperability, the Bay Area Cities would urge the Region to

deploy standards-based technology, as advised by the Commission and to meet all of the technical
specifications recently proposed by the Commission in its Third Further Notice.14 Further, the Bay

Area Cities would urge the Region to enter into a network sharing and roaming agreement with other

licensees to support the goal of nationwide interoperability.

C. Given the Particular Circumstances of the Bay Region, Depriving the Region of
Spectrum for Its Integrated Voice and Broadband Network Would Be Contrary to
the Public Interest

Under the second test, the waiver request should be granted if, in light of the Region's unique

or unusual circumstances, depriving the Region of spectrum that it needs for an integrated voice and

broadband network would be contrary to the public interest. The request readily meets this standard.

As explained above, the Region is presented with an unusual, one-time opportunity. With a

relatively small incremental amount of funding, the Region can leverage the resources and work effort

required to build a voice network to construct an integrated voice and broadband network. The Region

desperately needs to move ahead with its interoperable voice network; as a result, this opportunity will

pass if the members of the Region are not granted access to the public safety broadband spectrum

soon. Thus, unlike most other cities or regions, the Bay Area Region has a viable funding plan and

the ability to implement a broadband network in the next few years without the need for a commercial

partner. For all the reasons set forth in the previous section, the public interest would not be served by

preventing the Region from taking advantage of this unusual opportunity.

14
See Third Further Notice, ¶¶ 95 – 131.

9
 The second test is also met if the requesting partner demonstrates that it has no reasonable

alternative to seeking a waiver. The Bay Area Cities’ request also satisfies this standard. The public

safety broadband spectrum is the Region's only reasonable option for broadband communications.

Previously, spectrum allocation to public safety has been fragmented throughout the frequency ranges,

and has only been made available for voice communications. Further, the 4.9 GHz spectrum is not

adequate for large scale, wide area deployments, as its propagation characteristics require significant

investment in infrastructure. All other potential spectrum options, including 2.4 GHz wi-fi and

television white space,15 fail to allow for licensing, rendering systems susceptible to interference and

thus unacceptable for public safety use. The 700MHz broadband spectrum is the only viable solution

for a cost effective, regional wireless broadband system.

IV. CONCLUSION

For the reasons set forth above, the Bay Area Cities request that the Commission grant them a

waiver that would allow the San Francisco Bay Region to take advantage of a unique opportunity to

construct a wireless broadband network at the same time the Region builds an interoperable voice

network. To prevent this opportunity from passing, the Bay Area Cities respectfully request that the

15
Unlicensed Operation in the TV Broadcast Bands, ET Docket No. 04-186, Second Report and Order and
Memorandum Opinion and Order, rel. Nov. 4, 2008.

10
Commission act on this petition promptly, so that the Region and the nation can gain all of the public

interest benefits enumerated in this request.

DATED: March 24, 2009 Respectfully submitted,

CITY AND COUNTY CITY OF OAKLAND CITY OF SAN JOSE

OF SAN FRANCISCO

MAYOR GAVIN NEWSOM MAYOR RON DELLUMS DEBRA FIGONE

CITY MANAGER

DENNIS J. HERRERA JOHN RUSSO RICHARD DOYLE

City Attorney City Attorney City Attorney
THERESA L. MUELLER CELSO ORTIZ BRIAN DOYLE
THOMAS J. LONG Deputy City Attorney Senior Deputy City Attorney
Deputy City Attorneys

By: __________/s/________ By: ____/s/___________ By: /s/

THOMAS J. LONG CELSO ORTIZ BRIAN DOYLE
Deputy City Attorney Deputy City Attorney Senior Deputy City
Attorney

11