[Federal Register Volume 60, Number 231 (Friday, December 1, 1995)]
[Rules and Regulations]
[Pages 61662-61664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29089]



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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90

[PR Docket No. 92-235, DA 95-2354]


Private Land Mobile Radio Services

AGENCY: Federal Communications Commission.

ACTION: Final rule; denial of requests for stay.

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SUMMARY: On June 15, 1995, the Commission adopted a Report and Order 
which established technical rules and guidelines aimed at improving the 
efficiency of the PLMR spectrum and facilitating the introduction of 
advanced technologies into the private mobile services (60 FR 37152, 
July 19, 1995). In addition, the Report and Order mandated the 
consolidation of the Part 90 Private Land Mobile Radio (PLMR) services, 
including the Public Safety Radio Services. The PLMR industry was given 
three months from the effective date of the rules in the Report and 
Order to develop and submit a comprehensive consolidation consensus 
plan. The Report and Order stated that the industry report on radio 
service consolidation would be required to be submitted on November 20, 
1995. The Public Safety Communications Council, the Association of 
Public-Safety Communications Officials-International, Inc., the 
International Municipal Signal Association, and the International 
Association of Fire Chiefs request that the Commission stay 
consolidation of the Part 90 Public Safety Radio Services until such 
time as the charter of the Public Safety Wireless Advisory Committee 
(Advisory Committee) has expired and the Commission has had the 
opportunity to review and consider the recommendations of the Advisory 
Committee. Included in the work of the Advisory Committee is the 
examination of the definition, structure, functions, and ways to 
enhance telecommunications for the existing Public Safety Radio 
Services. According to its Charter, the Advisory Committee report is 
due by September 11, 1996. This order denies the requests for stay as 
the Petitioners do not meet the standards required for grant of a stay. 
Specifically, Petitioners have failed to make the required showing of 
irreparable harm as both the Advisory Committee and the Commission 
would benefit by the submission of proposals or comments as to how best 
to accomplish the consolidation of the radio services. Second, 
Petitioners' requests for stay will harm other Public Safety Radio 
Services parties and non-public safety radio services as it will remove 
a specific class of land mobile services from the consolidation 
planning process and unnecessarily delay and detrimentally affect the 
PLMR community efforts to achieve more efficient and flexible spectrum 
use. Finally, we find that a stay is contrary to the public interest 
because the Commission should continue its efforts to examine and 
discuss the range of issues facing public safety communications and a 
failure to submit proposals and comments would delay efforts to 
consolidate the radio services.

EFFECTIVE DATE: December 1, 1995.

FOR FURTHER INFORMATION CONTACT:
Sonia Greenaway of the Wireless Telecommunications Bureau at (202) 418-
0680.

SUPPLEMENTARY INFORMATION:

    Adopted: November 20, 1995.
    Released: November 20, 1995.

    By the Deputy Chief, Wireless Telecommunications Bureau.

    1. Introduction. On June 15, 1995, the Commission adopted a Report 
and Order \1\ that, among other matters, mandated consolidation of the 
Part 90 Private Land Mobile Radio (PLMR) services, including the Public 
Safety Radio Services.\2\ The Public Safety Communications Council 
(PSCC),\3\ the Association of Public-Safety Communications Officials-
International, Inc. (APCO), the International Municipal Signal 
Association (IMSA), and the International Association of Fire Chiefs 
(IAFC) request that the Commission stay consolidation of the Part 90 
Public Safety Radio Services until such time as the charter of the 
Public Safety Wireless Advisory Committee (Advisory Committee) has 
expired and the Commission has had the opportunity to review and 
consider the recommendations of the Advisory Committee.\4\ For the 
reasons stated below, we deny the requests for stay.

    \1\ Report and Order, PR Docket No. 92-235, FCC 95-255, 60 FR 
37152 (July 19, 1995).
    \2\ The Part 90 Public Safety Radio Services (subpart B) include 
the Fire, Emergency Medical, Forestry-Conservation, Highway 
Maintenance, Local Government and Police Radio Services, 47 CFR 
subpart B.
    \3\ We note that the Executive Committee members of the Council 
include the Association of Public-Safety Communications Officials-
International, Inc. and the International Municipal Signal 
Association/International Association of Fire Chiefs. PSCC also 
seeks a stay with respect to the Subpart C Special Emergency Radio 
Service.
    \4\ Parties emphasize that this request for stay does not relate 
to non-public safety radio services.

[[Page 61663]]

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    2. Background. The Report and Order established technical rules and 
guidelines aimed at improving the efficiency of the PLMR spectrum and 
facilitating the introduction of advanced technologies into the private 
mobile services. In addition to the technical rules adopted, the 
Commission concluded that the number of PLMR service pools should be 
reduced and consolidated. The Commission decided that maintaining 
twenty service pools is administratively burdensome and that 
consolidating the PLMR services into 2-4 service pools would lead to 
greater operational efficiency for users and promote more flexible use 
of the spectrum.\5\ Instead of dictating a specific plan and structure 
for the radio services under a consolidated system, the Commission 
encouraged the PLMR community, including users, manufacturers, and 
frequency coordinators, to submit a consensus plan that would reflect 
the interests and needs of the community which in turn would assist the 
Commission in consolidating the service pools. The PLMR industry was 
given three months from the effective date of the rules in the Report 
and Order to develop and submit a comprehensive consolidation consensus 
plan. This industry report on radio service consolidation is due 
November 20, 1995. The Commission stated in the Report and Order that 
it would issue its final rule amendments on consolidation approximately 
six months after the effective date of the Report and Order. Further, 
if noted that consolidation of the PLMR services will incorporate the 
PLMR community's recommendations if consensus is achieved but will 
proceed regardless of the participation of the PLMR community.\6\

    \5\ The twenty (20) PLMR services which are the focus of this 
proceeding are the Public Safety Radio Services (Local Government, 
Police, Fire, Highway Maintenance, Forestry-Conservation and 
Emergency Medical) the Special Emergency Radio Service, the 
Industrial Radio Services (Power, Petroleum, Forest Products, Video 
Production, Relay Press, Special Industrial, Business, 
Manufacturers, and Telephone Maintenance), and the Land 
Transportation Radio Services (Motor Carrier, Railroad, Taxicab, and 
Automobile Emergency).
    \6\ Report and Order at para. 55.
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    3. Independently of this rulemaking, the National 
Telecommunications and Information Administration (NTIA) and the 
Commission have established the Advisory Committee to prepare a final 
report to the NTIA and the Commission on operational, technical and 
spectrum requirements of Federal, state and local public safety 
entities through the year 2010. Included in the work of the Advisory 
Committee is the examination of the definition, structure, and 
functions of the existing Public Safety Radio Services. According to 
its Charter, the Advisory Committee will submit a report to the 
Commission within twelve months of the first formal meeting.\7\

    \7\ The first formal meeting of the Advisory Committee was held 
on September 11, 1995. The Advisory Committee report therefore is 
due by September 11, 1996.
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    4. Contention of the Parties. Petitioners each present similar 
reasons in support of their requests for stay of the Public Safety 
Radio Service consolidation, including the filing of a proposal as to 
how best to consolidate the services pursuant to the Commission's 
Report and Order. Petitioners argue that it would be premature and 
inappropriate for the Commission to require the filing of a consensus 
plan and immediate consolidation of the existing Public Safety Radio 
Services before the Advisory Committee has completed its work.\8\ 
According to PSCC ``[i]t would be needlessly expensive and burdensome 
on all involved, including the Commission, for the Public Safety 
services to implement changes * * * and then have to make significant 
changes again at the conclusion of the (Advisory Committee's) studies 
and recommendations.'' \9\ IMSA and IAFC further contend that they are 
entitled to a stay under the four-prong test \10\ set forth in 
Washington Metropolitan Transit Commission v. Holiday Tours, Inc., 559 
F.2d 841 (D.C. Cir. 1977) (Holiday Tours).\11\ We will address each 
applicable ``prong'' below.\12\

    \8\ See, for example, APCO petition at 2, PSCC petition at 4, 
and IMSA/IAFC petition at 2.
    \9\ Public Safety Communication Council comments at 5.
    \10\ Under this test, a party moving for a stay must show: (1) A 
strong likelihood of prevailing on the merits; (2) irreparable harm; 
(3) issuance of a stay will not harm others; and (4) that granting a 
stay will serve the public interest. IMSA/IAFC note, however, that 
its pleading addresses only three prongs of the test as there is no 
underlying litigation and no issue with respect to prevailing on the 
merits.
    \11\ See also Virginia Petroleum Jobbers Ass'n v. Federal Power 
Commission, 259 F.2d 921, 925 (D.C. Cir. 1958).
    \12\ We do not herein address ``likelihood of prevailing on the 
merits.'' This prong is inapposite because these petitions are not 
filed in conjunction with a contested cause of action between 
opposing parties.
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    5. Irreparable Harm. First, IMSA/IAFC contend that failure to allow 
the Advisory Committee to do its job and provide crucial information 
which would determine the best way to consolidate existing stations 
could cause irreparable harm to new applicants as well as existing 
licensees. They argue that a stay will allow the Commission sufficient 
time to ensure that policies developed for the Public Safety Radio 
Services maximize interoperability, efficiency and enhancement of 
public safety telecommunications and minimize chances for interference 
or mismanagement of these important services.\13\

    \13\ IMSA/IAFC comments at 6.
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    6. A stay is an extraordinary remedy which the Commission grants 
upon request in limited circumstances. Based on the factors presented 
by the above parties, we conclude that Petitioners do not meet the 
standards required for grant of a stay. Specifically, we find that 
Petitioners have failed to make the required showing of irreparable 
harm. To show irreparable harm, ``the injury must be both certain and 
great; it must be actual and not theoretical.''\14\ We believe that 
Petitioners overstate the impact of not granting their request.

    \14\ Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 
1985); In the Matter of Cincinnati Bell Telephone Company, Requests 
for Stay of Orders Finding Violations of the Commission's Rate of 
Return Prescriptions, 8 FCC Rcd 6709 (1993).
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    7. The Advisory Committee's work and recommendations will be an 
important vehicle in the Commission's endeavor to ensure that public 
safety communications are effective, efficient and respond to the 
increasing demands placed on the public safety community. The 
consolidation of services is but one of a myriad of issues that the 
Advisory Committee may address within the extremely confined time frame 
it is working under. The Advisory Committee will be meeting throughout 
the coming months to examine issues and make recommendations. The 
resolution of every issue does not necessarily await articulation in 
the Advisory Committee's final report. Throughout the process, a number 
of recommendations may emerge as consensus agreements or be acted upon 
formally. Importantly, because of its time constraints, the Advisory 
Committee itself would benefit by the submission of proposals or 
comments as to how best to accomplish the consolidation of services. 
Moreover, the Commission's review and analysis of consolidation 
alternatives can commence while still affording the Advisory Committee 
an opportunity to make a recommendation on the issue. Under these 
circumstances, as both the Advisory Committee and the Commission would 
benefit by the submission of proposals or views addressing the 
consolidation of services, we find that Petitioners have failed to 

[[Page 61664]]
make the required showing of if irreparable harm.\15\

    \15\ ``The most important of [the] factors is irreparable harm, 
without which other factors need not be considered.'' In the Matter 
of Cincinnati Bell Telephone Company, Requests for Stay of Orders 
Finding Violations of the Commission's Rate of Return Prescriptions, 
8 FCC Rcd at 6710, note 23.
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    8. Harm to Others. Second, IMSA/IAFC allege that the stay will 
benefit, not harm, other Public Safety Radio Service parties because 
the Commission's grant of this request will aid in the establishment of 
a fair and safe frequency coordination process, avoid the 
implementation of a consolidation plan that conflicts with the intent 
and direction of the Advisory Committee report, and avert the 
disruption of dismembering and reconstructing the finalized 
consolidation plan should the plan prove unworkable in light of the 
Advisory Committee's recommendations.\16\ Further, IMSA/IAFC maintain 
that non-public safety radio services will remain unaffected as this 
request for stay does not relate to non-public safety radio services.

    \16\ Comments of IMSA/IAFC at 7.
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    9. As we have stated, we are not faced with the circumstance of 
proceeding in light of contrary recommendations of the Advisory 
Committee. Those recommendations have not been formulated and in fact, 
both the Advisory Committee and Commission would benefit by the 
proposals and comments of industry of how best to accomplish the 
consolidation of services. Significant potential for harm to others in 
the PLMR community will accrue if we were to impose a stay in the 
consolidation of the Public Safety Radio Services. In the Report and 
Order, the Commission noted that it sought a consensus from all users 
in the PLMR community in developing a consolidation plan. The 
Commission recognized that this action represented a significant change 
for all PLMR services. The Commission viewed consolidation as a unified 
effort by the PLMR community to maximize the effective and efficient 
operations of the private services. The Report and Order emphasized the 
importance of developing a consolidation plan for all of the PLMR 
services. A specific comprehensive consolidation plan must include 
clear guidelines for the structure of the Public Safety Radio Services. 
Should the public safety community not participate in discussions to 
develop a consensus for consolidating the radio services, the PLMR 
community efforts to achieve more efficient and flexible spectrum use 
could be unnecessarily delayed and detrimentally affected. In short, 
removing a specific class of land mobile services from the 
consolidation planning process would significantly and adversely affect 
the entire ``Refarming'' initiative.
    10. Public Interest. Third, IMSA/IAFC argue that it is in the 
public interest to use the Advisory Committee to its maximum potential, 
and not to risk conflicting directives from the Advisory Committee and 
the rulemaking proceeding concerning the consolidation of the Public 
Safety Radio Services.\17\ Moreover, these parties state that the delay 
resulting from this request will be minimal. Again, the Commission is 
not at a point where it risks even a potential conflict with a 
recommendation of the Advisory Committee. The Commission is committed 
to a process that provides the Advisory Committee an opportunity to 
examine the range of issues facing public safety communications. Our 
pervading interest is that proposals and comments on the consolidation 
of services be submitted so that the Commission can continue its 
efforts in implementing the Refarming initiative, which includes the 
benefit of any Advisory Committee recommendation addressing the 
consolidation of services. A stay would likely delay these efforts and 
be contrary to the public interest.

    \17\ IMSA/IAFC comments at 8.
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    11. Conclusion. For these reasons, and pursuant to Sec. 1.43 of the 
Commission's rules, the Requests for Stay filed by the Association of 
Public-Safety Communications Officials-International, Inc., the 
International Municipal Signal Association and the International 
Association of Fire Chiefs, and the Public Safety Communications 
Council are denied.
    12. The deadline for filing a consensus plan for consolidation 
remains November 20, 1995. We will consider, however, the views of the 
petitioners and the Advisory Committee in conjunction with the 
recommendations submitted November 20th, prior to issuing a final order 
on consolidation of the PLMR services.

Federal Communications Commission.
Gerald P. Vaughan,
Deputy Chief, Wireless Telecommunications Bureau.
[FR Doc. 95-29089 Filed 11-30-95; 8:45 am]
BILLING CODE 6712-01-M