WPC3 2BJZ Courier3|fx6X@KX@HP LaserJet 4 PostScript RM 8010HPLA4POS.PRSx  @hhhh"\{X@26 ZF83|fHP LaserJet 4 PostScript RM 8010HPLA4POS.PRSx  @hhhh"\{X@CourierTimes RomanTimes Roman BoldTimes Roman Italic S- I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#&J\  P6Qx&P#2vpgkkBa8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# 2vtna2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# 2 :   0 a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# 2G    n a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p 2Wy yITech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . 2F7a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   2x3a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155<%%%n%%%%%%%%%%7O1O1O1O1O1bII1C1C1C1C1%%%%O7O7O7O7O7O7O7O7O7O7O1O7O7O7O7O7=7O1O1I1I1I1I1O7C1C1C1C1O7O7O7O7O7O7O7%7%7%%%7+%O7CC%C%C%CO7O7O7O7O7bOI%I%I%=+=+=+=+C%C%C%O7O7O7O7hOO7C1C1N'27%177777"SS7!TT7S!117n%%77l==n%1ni!t>><<>>mBBs,>[N6-msTN[TTTH_<1CPd<d<$8YYdCCddooCYȾinterest.+X% {O-  \#]\  PCP#эxNortheast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see also WAIT Radio v.  {O\-FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969). We find that Southern has met this burden in part, warranting grant of a waiver of Section  x90.629 of the Commission's Rules, but not for the full period requested. Our basis for this determination is set forth below.  S- ` x 10.` ` Unique Circumstances. Southern argues that its circumstances are unique because no other  S- x800 MHz SMR system licensed on a sitebysite basis has such a large footprint, and thus is so burdened  Si- x<by the sitebased construction requirement.l,i% yO -#]\  PCP#эxWaiver Request at 3.l The Personal Communications Industry Association (PCIA),  x=a trade association representing the interests of commercial mobile radio service and private mobile radio  xservice users and businesses, and Forest Industries Telecommunications (FIT), an organization of land  xmobile radio users in the forest products industry, argue that Southern is indistinguishable from all the  S - xother SMR operators that had to rejustify their extended implementation periods, none of whom received  Sj - xmore time than Southern to construct their systems.-j D% {ON-#]\  PCP#эxFIT Comments at 2; PCIA Comments at 34; see also SBT Comments at 67. We, however, believe that the provision of service  xover an unusually large area to a substantial number of public safety users that rely on the system to meet  S - xtheir growing communications needs can be a unique circumstance.#. % {Oz-  #]\  PCP#эxSee, e.g., Texas Utilities Services, Inc., Order, 13 FCC Rcd 4258, 4261 (WTB 1997); State of Florida,  {OD-Order, 12 FCC Rcd 11567, 1157172 (WTB 1997).# The Commission strives to avoid  xunnecessary disruption of critical state, federal, and local governmental public safety functions, and has  S -repeatedly given special recognition to the protection of services that are integral to public safety needs.n/ 2 % {Op-  #]\  PCP#эxSee Advanced Television Systems and Their Impact upon the Existing Television Broadcast Service, Sixth  {O:- xReport and Order, MM Docket No. 87268, 12 FCC Rcd 14588, 1466465 (1997) (tailoring digital television  xallocations to protect public safety land mobile licensees utilizing the 470512 MHz band in the Philadelphia area);  {O- x: Redevelopment of Spectrum to Encourage Innovation in the Use of Telecommunications Technologies, Memorandum  {O- xOpinion and Order, ET Docket No. 929, 9 FCC Rcd 1943 (providing unique relocation procedures to 2 GHz fixed microwave public safety licensees because of the critical nature of their services). nX01Í ÍX01Í Í  S8- ` nx 11.` ` Lack of Reasonable Alternatives. Southern argues that it has no reasonable solution within  xthe existing rules. Small Business in Telecommunications (SBT), an association of small businesses  x]trading throughout the telecommunications marketplace, maintains that, given Southern's financial  xresources, Southern had the alternative of bidding more aggressively in the recent auction of 800 MHz  Sm- xchannels, but simply chose not to compete with Nextel %B  Communications, Inc. (Nextel) %B .0m% {O#-#]\  PCP#эxSBT Comments at 7; see also Nextel Comments at 1516. Southern states  xthat the auction of the upper 200 channels "offered virtually no opportunity for competitors to acquire  xsignificant amounts of new spectrum" because Nextel's incumbent status discouraged others from bidding"D0,l(l(,,b"  S- xjfor the encumbered spectrum.1$% {Oh-  #]\  PCP#эxWaiver Request at 10; see id. at 11, 15. In addition, Southern contends that participating in the scheduled  x<auctions for the General Category and the lower 80 800 MHz SMR channels also is not a reasonable alternative,  {O- xbecause Nextel's incumbent status in those categories will make it difficult for other bidders to compete. Id. at 15, 1718. With respect to this matter, we conclude that what Southern might have  S-done in a past auction does not constitute a current alternative.2% {O!-  #]\  PCP#эxSee Industrial Communications & Electronics, Inc., Order on Reconsideration, 13 FCC Rcd 8417, 8423 (WTB Commercial Wireless Div. 1998).  Sg- ` Bx 12.` ` FIT, PCIA, and SBT argue that Southern can construct its I/LT and Business channels  S4- xwithin the current implementation period.34% yO -#]\  PCP#эxFIT Comments at 2; PCIA Comments at 6; SBT Comments at 2. SBT contends that, under Commission precedent, Southern's  S- xassertion that "this immediate expenditure would not be rational from a business perspective"s4% yO?-#]\  PCP#эxWaiver Request at 17.s because  S- xNthe demand in rural areas does not yet merit a complete buildoutk5. % {O-#]\  PCP#эxId. at 1213.k does not make this alternative  S- xunreasonable.6 % {O-  M#]\  PCP#эxSBT Comments at 24 (citing, e.g., AAT Electronics Corp., 93 FCC 2d 1034, 1047 (1983) (citing Radio Longview, Inc., 19 FCC 2d 966, 968 (1969))). As an initial matter, we note that the cited cases deal with the question of whether the  xyconstruction delay was beyond the licensee's control, warranting an extension pursuant to Section 319(b)  xof the Act, while the issue at hand is whether there is no reasonable alternative, warranting a waiver  S- xpursuant to Section 90.151 of the Commission's Rules.n7% yO-#]\  PCP#эx47 U.S.C.  319(b).n Moreover, as discussed above, there are three  xLplanned or pending proceedings that may ultimately result in Southern's current timebased construction  S - xrequirement being modified. Thus, we find that Southern has no reasonable alternative within the existing rules to an extension of its implementation period.  S - ` x 13.` ` Public Interest. Comments were received from a number of Southern's SMR subscribers,  xurging us to grant the Waiver Request so that Southern may continue to meet their communications  S - xneeds.8b % {O-  z#]\  PCP#э#]\  PCP#xSee AAA Ambulance Service Comments at 1; Alabama Emergency Management Agency Comments at 1;  xyAlabama Forestry Commission Comments at 1; Bayou Concrete Company Comments at 1; Beard Equipment  xCompany Comments at 1; Briggs Equipment Comments at 1; Brinks, Inc. Comments at 1; BudweiserBusch  xDistributing Company Comments at 1; CleanRite, Inc. Comments at 1; Ditch Witch Comments at 1; Floyd Bros.  xZConstruction, Inc. Comments at 1; Gatlin Lumber and Supply Company Comments at 1; Georgia Department of  xPublic Safety Comments at 1; Hosea O. Weaver and Sons, Inc. Comments at 1; Jackson County, Mississippi, Schools  xComments at 1; Jordan Pile Driving, Inc. Comments at 1; KimberlyClark Corporation Southeast Timberlands  xComments at 1; McPhillips Manufacturing Company Comments at 1; Mississippi Department of Transportation  xComments at 1; Mobile County, Alabama, Emergency Management Agency Comments at 1; Okaloosa County,  xFlorida, Department of Emergency Services Comments at 1; Okaloosa County, Florida, Water & Sewer System  xZComments at 1; Santa Rosa County, Florida, Sheriff's Office Comments at 1; Taylor Made Transportation, Inc.,  xComments at 1; Taylor Services, Inc., Comments at 1; Tuscaloosa County, Alabama, Sheriff's Office Comments at"'7,l(l('"  yO-2; Warrior & Gulf Navigation Company Comments at 1.#x6X@KpX@# Many of Southern's subscribers are public safety agencies that have determined that they can" X8,l(l(,,Z"  xybest and most economically meet their communications needs by using Southern's widearea, digital radio  S- xnetwork, rather than each constructing their own system.}9X% yO-#]\  PCP#эxSouthern Reply Comments at 2, 4, 67.} Southern states that its system is wellsuited  x]for public safety communications, because, in order to meet the internal communications needs of  xSouthern's operating companies, the system is designed to provide uninterrupted service even in the wake  S4- xof natural disasters.:"4% {O-  M#]\  PCP#эxId. at 67; see also Tuscaloosa County, Alabama, Sheriff's Office Comments at 1 ("We have experienced  xgreat success with the Southern Linc system through three hazardous storms and numerous law enforcement  xYoperations. During these three storms, noticeable interruptions of various types were experienced with our existing radio system, paging system, and cellular phone service."). In addition, Southern's system provides interoperability among participating  S- xagencies,;% yOs -  #]\  PCP#эxOkaloosa County, Florida, Department of Emergency Services Comments at 1; Tuscaloosa County, Alabama, Sheriff's Office Comments at 1. which the Commission has recognized as one of the most important public safety  S- xcommunications needs.9<(* % {O-  \#]\  PCP#эxSee, e.g., Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State  {Ob- x,and Local Public Safety Agency Communication Requirements Through the Year 2010, Second Notice of Proposed  {O,- xRulemaking, WT Docket No. 9686, 12 FCC Rcd 17706, 1771822 (1997); Public Safety Wireless Advisory Comm.,  {O-Final Report 1920, 4548 (Sept. 1996).9 We conclude that the public interest would be served by a waiver that promotes  S-reliable, stateoftheart widearea public safety communications and promotes interoperability.=&% {OU-  #]\  PCP#эxSee Texas Utilities Services, Inc., Order, 13 FCC Rcd 4258, 426162 (WTB 1997); Central and South West  {O- xServices, Inc., Order, DA 981686, at  911 (WTB Public Safety and Private Wireless Div. rel. Aug. 24, 1998);  {O- xsee also Wackenhut Corp., Order, DA 981196, at  7 (WTB Public Safety and Private Wireless Div. rel. June 19, 1998).  S5- ` ~x 14.` ` We also note that Southern's system serves rural areas, where wireless communications  xare particularly important due to the distances that must be covered and the relative scarceness of wireline  S- xcommunications facilities.m>\% {Ow-  #]\  PCP#эxState of South Carolina, Order, 13 FCC Rcd 8787, 8791 (WTB 1997); Public Utility District No. 1 of  {OA- xSnohomish County, Order, 13 FCC Rcd 7964, 796667 (WTB Public Safety and Private Wireless Div. Policy and Rules Br. 1997).m Southern states, however, that without an extension of its implementation  xperiod, economic realities will compel it to concentrate on constructing channels in urban areas, where  x[there is higher demand, and to relinquish unbuilt channels in rural areas, which will leave Southern unable  S6 - xto meet rural needs when demand grows in those areas.p?6 ,% yO"-#]\  PCP#эxWaiver Request at 1213.p Nor does it appear that any other SMR operator  xwill immediately meet such needs, as we previously have noted that 800 MHz digital SMR providers are" ?,l(l(,, "  S- x.unlikely to begin serving small cities and rural areas in the near future.@% {Oh-  #]\  PCP#эxPittencrieff Communications, Inc., Memorandum Opinion and Order, 13 FCC Rcd 8935, 8952, 895657 (WTB 1997). Thus, the public interest would  S-be served by a waiver that promotes the expeditious delivery of service to rural areas.A"% {O-#]\  PCP#эxSee Echostar DBS Corp., Order, 11 FCC Rcd 16291, 16294 (IB 1996).  S-  Sg- ` Ax15.` ` Several commenters argue in a conclusory manner that unassigned 800 MHz Business and  xI/LT spectrum is scarce, so the public interest requires that Southern's Waiver Request be denied and any  S- xchannels that it fails to construct be made available to Business and I/LT eligibles.B% yOU -  #]\  PCP#эxAPI Comments at 34; FIT Comments at 2; PCIA Comments at 6 and Reply Comments at 3; SBT  {O -Comments at 56; see also LMCC Comments at 4. We agree with  xkSouthern's reply that there is no evidence in the record of any Business or I/LT eligibles in Southern's  S-service area being unable to acquire spectrum.wC% yOI-#]\  PCP#эxSouthern Reply Comments at 34.w  S5- ` x16.` ` After consideration of the record in this proceeding we conclude that the public interest  x=will be served by granting Southern a limited waiver of the Commission's Rules. We find that the public  xinterest would be served by preserving Southern's ability to meet the communications needs of a  S - xsubstantial number of public safety users, particularly in rural areas, and that it would not be served by  Si - x=needlessly disrupting critical public safety communications now or in the immediate future.Di % yO-  _#]\  PCP#эxThe Commission seeks to ensure that sufficient spectrum to accommodate efficient, effective  xtelecommunications facilities and services will be available to satisfy public safety communications needs into the  xwtwentyfirst century. The Development of Operational, Technical and Spectrum Requirements for Meeting Federal,  {O- xState and Local Public Safety Agency Communication Requirements Through the Year 2010, First Report and Order  {O-and Third Notice of Proposed Rulemaking, WT Docket No. 9686, FCC 98191, at  1 (rel. Sept. 29, 1998). While our  xcurrent rules do contemplate the return of unused Business and I/LT channels to their pools for  xreassignment, rather than allow them to be retained for SMR service, the record before us suggests that  xLthe public interest would not be best served by such a decision. The record before us contains primarily  x{conclusory statements about the spectrum needs of particular categories of users. In contrast, the  xupcoming proceeding to implement the Balanced Budget Act will examine the future licensing of these  x\pools and provide commenters with the opportunity to present factbased proposals for meeting the  xspectrum needs of the Business and I/LT community. Therefore, we will extend Southern's  ximplementation period until final rules regarding licensing of the Industrial/Land Transportation  x[frequencies in the context of the Commission's rulemaking proceeding to implement the Balanced Budget  x{Act take effect, or until the Commission takes action pursuant to Southern's other related pending  S8- xrequests. Ez8R % yO*"-  #]\  PCP#эxSouthern, joined by UTC, The Telecommunications Association, which represents electric, gas, and water  xutilities and natural gas pipelines, argues that regulatory symmetry among CMRS providers requires us to bring the  xhconstruction requirement to which Southern is subject more in line with the construction requirement governing 800  x;MHz SMR geographic area licensees, without regard to whether they acquired their spectrum by competitive bidding  xor sitebysite licensing, so granting the requested waiver will serve the public interest by promoting this statutory  xobjective. Waiver Request at 1516 (citing Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 10366,  {O&- xh6002(a)(2)(A), (B), 107 Stat. 312 (largely codified at 47 U.S.C.  332 et seq.)); Letter from Richard T. Yee, UTC,"&D,l(l(%'"  {O- xto Magalie Roman Salas, Secretary, FCC (May 22, 1998). But see API Comments at 6; Nextel Comments at 3;  xPCIA Comments at 4 (each arguing that Southern seeks not equal treatment, but preferential treatment compared to  xother sitebased Business, I/LT, and SMR licensees). The Commission rejected this argument when Southern raised  {O- xit in its petition for reconsideration of the 800 MHz SMR Report and Order, concluding that different construction  xrequirements were appropriate for sitebased and geographic licenses. Amendment of Part 90 of the Commission's  {O|- xRules to Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band, Memorandum Opinion  {OF- xJand Order and Order on Reconsideration, PR Docket No. 93144, 12 FCC Rcd 9927, 9997 (1997). We agree with  xPCIA that an argument that the Commission already has rejected cannot constitute good cause for granting a waiver,  xso we note that we are not relying directly on regulatory parity itself as a grounds for concluding that this temporary  {O-waiver will serve the public interest. See PCIA Comments at 3. Ć In this connection, we conclude that those stations constructed and placed in operation by the"8 j E,l(l(,,c"  x end of the waiver period may be retained by Southern on a sitebysite license basis, but licenses for  S-channels that remain unconstructed at that time will cancel automatically.qFj % yO -#]\  PCP#эx47 C.F.R.  90.629(e).q  Sg- ` _x17.` ` Confidentiality Request. Southern requested that the supplemental information it provided  S5- xbe withheld from public inspection pursuant to Sections 0.457(d) and 0.459 of the Commission's Rules.{G5 % yO-#]\  PCP#эx47 C.F.R.  0.457(d), 0.459.{  xThe materials provide information about system use and the construction status of each frequency and call  xzsign within Southern's system, organized by EA. A request that information be withheld from public  x>inspection shall be granted when the applicant presents a case for nondisclosure consistent with the  Si- xFreedom of Information Act (FOIA).Hi % yO-#]\  PCP#эxThe FOIA is codified at 5 U.S.C.  552. This procedure is outlined at 47 C.F.R.  0.459(d)(2). What is commonly known as "Exemption 4" to the FOIA allows  x=for the withholding of "trade secrets and commercial or financial information obtained from a person and  S- xprivileged or confidential."zI% {O-#]\  PCP#эxSee 5 U.S.C.  552(b)(4).z "Commercial" is broader than information regarding basic commercial  xoperations, such as sales and profits; it includes information about work performed for the purpose of  S - xconducting a business's commercial operations.J^ % {O-  #]\  PCP#эxPublic Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983); see Examination of  {O- xCurrent Policy Concerning the Treatment of Confidential Information Submitted to the Commission, Report and  {O}-Order, GC Docket No. 9655, FCC 98184, at  3 (rel. Aug. 4, 1998) (Confidentiality Report and Order). Because Southern's list of sites and construction  x[information sufficiently relates to its commercial activities in the communications field, we conclude that  xNit satisfies this portion of the test. Information provided voluntarily satisfies the "confidential or  xyprivileged" prong of Exemption 4 "if it is of a kind that the provider would not customarily release to the  S - xNpublic."K % {OC!-  k#]\  PCP#эxCritical Mass Energy Project v. NRC, 975 F.2d 871, 879880 (D.C. Cir. 1992); see Confidentiality Report  {O "-and Order at  4. Because other businesses could use this comprehensive data to Southern's competitive  xdisadvantage, we accept Southern's claims that it is market sensitive data, and we conclude that this is  xinformation that Southern would not customarily release to the public. Accordingly, we will withhold the supplemental information from public inspection.  %B " .K,l(l(,,"  S- %B  IV. CONCLUSION ă  S- ` x18.` ` We find that Southern has met the burden for limited waiver of Section 90.629 of our  Sg- x?Rules. This Memorandum Opinion and Order grants Southern's request for waiver to extend the  ximplementation period for its Business and I/LT channels, but only to the extent discussed herein. The  xaction taken herein serves the public interest in that it will provide improved opportunities for  x\interoperable communications by the public safety community, and encourage the provision of SMR service to rural areas that might otherwise go unserved.  S6- V. ORDERING CLAUSES ă  S- ` x19.` ` IT IS ORDERED that, pursuant to Sections 4(i) and 303(r) of the Communications Act  xof 1934, as amended, 47 U.S.C. 154(i) and 303(r), and Section 90.151 of the Commission's Rules, 47  xC.F.R. 90.151, Southern Company's Request for Waiver of Section 90.629 of the Commission's Rules  xto extend Southern's implementation period IS GRANTED IN PART %B   %B and DENIED IN PART, to the extent indicated herein.  S - ` Px20.` ` This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R. 0.131, 0.331.  S- ` x21.` ` For further information, contact Scot Stone, Public Safety and Private Wireless Division, at (202) 4180680. x` `  hhFEDERAL COMMUNICATIONS COMMISSION  S- x` `  hhDaniel B. Phythyon  S:-x` `  hhChief, Wireless Telecommunications Bureau