Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | File Nos. 654521, 654522,    |
|                                  | * | 654523, 654524, 654525,      |
| Applications of                  | ) | 654526, 654527, 654528,      |
|                                  | * | 654529, 654530, 654531,      |
| East River Electric Power        | * | 654532, 654534, 654535,      |
| Cooperative                      |   | 654537                       |
|                                  | * |                              |
| Request for New 800 MHz SMR      | * | File Nos. 9411604803 et al.  |
| Systems                          | ) |                              |
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| OneComm Corporation, N.A.        | * |                              |
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| Applications for Various SMR     | * |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: July 17, 2003 Released: July 30, 2003**

By the Commission:

**I. INTRODUCTION.**

1.  In this *Memorandum Opinion and Order*, we address an Application
    for Review filed by East River Electric Power Cooperative (East
    River), seeking review of the Wireless Telecommunications Bureau's
    (Bureau) dismissal of East River's applications for site-based
    licenses in the 800 MHz Specialized Mobile Radio (SMR) service.[^1]
    We also address a related Petition for Reconsideration filed by East
    River against grants made to OneComm Corporation (OneComm).[^2] As
    discussed below, we grant East River's Application for Review, and
    reinstate its applications, and deny East River's Petition for
    Reconsideration of the grants made to OneComm.

    **II. BACKGROUND.**

2.  East River is a wholesale electric power supply and transmission
    cooperative holding Private Mobile Radio Service (PMRS) and
    Commercial Mobile Radio Service (CMRS) licenses on the 800 MHz band.
    On January 6, 1994, East River submitted applications for 800 MHz
    SMR frequencies at seventeen separate sites in South Dakota and
    Minnesota. Pursuant to the rules then in effect, the applications
    requested specific frequencies.[^3] At that time, SMR licenses were
    granted on a site-by-site, channel-by-channel basis. On August 9,
    1994, however, the Commission adopted the *CMRS Third Report and
    Order*, concluding that the 800 MHz SMR service should be licensed
    on a geographic area basis and subject to the competitive bidding
    process.[^4] The Commission suspended the acceptance of
    site-specific SMR applications as of August 9, 1994, pending the
    adoption of new licensing and service rules for the 800 MHz SMR
    service.[^5]

3.  By the time the Commission imposed the application freeze, however,
    it had a backlog of over 40 thousand applications for 800 MHz
    channels, including East River's applications. In order to expedite
    the application processing, the Land Mobile Branch[^6] requested
    that applicants re-submit their application data in electronic
    format so that it could use computer software developed by a
    coalition of industry trade associations (Industry Coalition).[^7]
    Although the Commission's rules at the time provided that an
    application must either request specific frequencies, or request
    that the Commission assign available frequencies,[^8] it was the
    staff's practice to grant alternative channels if an applicant's
    requested frequencies were not available at the locations specified
    in the applications. This practice came about due to the
    first-in-line nature of application processing for these licenses.
    Due to grants to other applicants with earlier-filed applications,
    it was often the case that an applicant's requested frequencies
    would no longer be available by the time the staff began processing
    its application(s). For example, license grants to one applicant
    would have precluded the grants of any later-filed applications for
    the same frequencies at sites within a 70-mile radius.[^9]
    Accordingly, to avoid requiring applicants to reapply for other
    frequencies, thereby adding to the application backlog, or adding to
    the backlog of wait-listed applications, the staff sought to assign
    available alternative frequencies where possible. The Industry
    Coalition software was programmed to follow this practice, and
    alternative channels were assigned, if possible. On March 17, 1995,
    the Bureau announced that it had granted approximately 4,500
    applications based on the results of this electronic
    processing.[^10] Of the seventeen applications it filed, East River
    received nine multi-channel licenses in South Dakota and Minnesota,
    eight of which were granted by assigning alternative frequencies.

4.  Programming flaws in the software, however, caused errors in the
    processing of the applications. In response to these errors, the
    Industry Coalition sought reconsideration of the grants made in the
    March 17, 1995 Public Notice, and requested permission to make
    modifications to its software so that the Land Mobile Branch could
    reprocess the applications and issue a revised list of granted
    licenses.[^11] In light of the number of authorizations potentially
    affected, the Bureau modified all of the license grants announced in
    the March 17, 1995 Public Notice to be conditional.[^12] The Bureau
    also concluded that certain adjustments to the software were needed,
    and permitted the Industry Coalition to modify the software. The
    modified software, however, did not include the feature that allowed
    applicants to receive grants of alternate frequencies if the
    requested frequencies were not available. The alternate frequency
    option was removed from the modified version of the software in
    order to moderate the complexity of the software processing, and to
    avoid improper authorizations, such as grants to ineligible
    applicants, a problem experienced in the first computer run.
    Further, the removal of the alternative frequency option more
    closely comported with the Commission's rules.

5.  Following modification of the software, the Land Mobile Branch once
    again processed the applications. On October 31, 1995, the Bureau
    released another public notice that superseded the March 17, 1995
    Public Notice, vacated the March 1995 authorizations, and granted
    over 6,300 applications.[^13] Although East River had received
    authorizations with respect to nine applications in the first
    software run, only one of East River's applications was granted when
    applications were reprocessed with the modified Industry Coalition
    software. All applications that were not granted in the October 1995
    Public Notice, including East River's, were placed on a waiting
    list. These wait-listed applications were subsequently dismissed by
    the Commission in the *800 MHz First Report and Order*[^14] and the
    *800 MHz Second Report and Order*.[^15]

6.  East River sought reconsideration of the results of the second
    Industry Coalition software run and the October 31, 1995 Public
    Notice.[^16] East River argued that its applications should not have
    been wait-listed because a number of frequencies at its requested
    sites remained available.[^17] East River noted that it had
    confirmed in a January 1995 letter that it would take alternative
    frequencies if the specific channels it sought were
    unavailable.[^18] The Land Mobile Branch, however, affirmed the
    decision to wait-list East River's applications, stating that East
    River had sought specific frequencies that were no longer available.
    Further, the Land Mobile Branch found that the decision not to grant
    alternative frequencies was reasonable because East River's January
    1995 letter constituted a major amendment that could not be accepted
    because it was submitted after the imposition of the application
    freeze.[^19] In response, East River filed the instant Application
    for Review, arguing, *inter alia*, that because it was common
    practice to review SMR applications for alternative frequencies, the
    Commission should have granted alternative channels to East River.

    **III. DISCUSSION.**

7.  Upon review of the record, we conclude that it is in the public
    interest to grant East River relief that is comparable to the relief
    it seeks in its Application for Review. This decision is based on
    our determination that, at the time East River's applications were
    filed, it was the staff's practice to search for alternative
    frequencies if the channels specified in an application were not
    available for grant. Because this practice was not applied when East
    River's applications were processed pursuant to the second Industry
    Coalition software run, resulting in the eventual dismissal of the
    majority of East River's applications, we find that we should grant
    East River the relief specified below.

8.  We note that the staff's practice of assigning alternative spectrum
    if an applicant's requested frequencies were not available was not
    prescribed by then applicable Commission rules. Former rule section
    90.621(a) required that applicants either seek specific frequencies
    or request that the Commission assign available channels. Further,
    former rule section 90.611(d) provided that applications that could
    not be granted due to the lack of available frequencies were to be
    waitlisted.[^20] Although the practice of assigning alternative
    frequencies in lieu of unavailable requested frequencies derived
    from the staff's legitimate desire to reduce (and prevent) the
    backlog of filed or waitlisted applications, such practice was never
    specifically addressed or sanctioned by the Commission. Now that
    this issue is specifically before us, we find, as stated above, that
    the procedure prescribed by section 90.611(d) provided that
    applications that specified unavailable frequencies would be placed
    on a wait list.

9.  This notwithstanding, factors exist in this situation which lead us
    to conclude that East River was not "on notice" of the Commission's
    actual policy.[^21] The record indicates that the assigning of
    alternative frequencies in lieu of specified channels was a practice
    that was widely-known by the public. In fact, the first Industry
    Coalition software run was programmed to search for alternative
    frequencies in order to mimic the Land Mobile Branch's manual way of
    processing SMR applications. Although the provision that
    applications for unavailable spectrum would be placed on a waiting
    list would normally have been sufficient to put applicants on notice
    of the possible consequences of applying for specific frequencies,
    we conclude that the staff practice of granting alternative channels
    caused the Commission's actual policy to be unclear to applicants.
    Indeed, given East River's clear desire for any available spectrum
    at its requested sites, we are not convinced that East River would
    have applied for specific frequencies in the absence of the
    well-established staff practice. In light of these facts, we
    conclude that East River requested specific frequencies in reliance
    upon the staff's practice of assigning alternative spectrum. In
    light of this reliance, we conclude that it is in the public
    interest to grant East River's Application for Review, reinstate its
    applications,[^22] and provide relief to the extent possible.[^23]

10. There is not currently a sufficient number of 800 MHz SMR channels
    available for grant at East River's requested sites. Nevertheless,
    we provide East River substantial relief by reinstating its
    applications and by directing the Bureau to process available 800
    MHz Business or Industrial/Land Transportation (ILT) category
    frequencies in lieu of SMR channels where possible[^24] pursuant to
    section 90.621(e)(2) of our rules, which allows Business and I/LT
    frequencies to be converted to commercial use.[^25] In order to
    effectuate such use, we waive sections 90.621(e)(2)(ii) [^26] and
    section 90.621(e)(2)(i) [^27] of our rules. Section 90.621(e)(2)(ii)
    generally requires that a licensee hold its private land mobile
    radio (PLMR) licenses for five years prior to modification to CMRS
    use, and also requires that a licensee hold its PLMR licenses for
    five years prior to transfer or assignment of the licenses to a CMRS
    operator. Section 90.621(e)(2)(i) precludes a Business or I/LT
    licensee that converts frequencies or transfers its license to a
    CMRS operator from applying for 800 MHz PLMR spectrum in the same
    area for one year.

11. Both the five-year holding requirement and the one-year application
    ban were put in place as means to discourage the trafficking of PLMR
    spectrum and to ensure that such channels are initially licensed
    only to entities that will use them for PLMR communications.[^28]
    Because our intent is to grant East River spectrum that it can put
    to immediate commercial use,[^29] the underlying bases of the
    holding period and application ban are not implicated here. East
    River is, however, subject to the requirement in sections
    90.621(e)(2)(iii) and 90.621(e)(2)(iv) that it certify that it has
    notified co-channel 800 MHz public safety licensees in the same
    geographic area and that it will take affirmative steps to avoid
    harmful interference to such public safety licensees.[^30]
    Accordingly, we grant East River certain frequencies as set out in
    Appendix A.

12. Finally, we deny East River's related Petition for Reconsideration,
    which seeks reconsideration of the grants of numerous site-based 800
    MHz SMR facilities made to OneComm.[^31] The OneComm grants were
    made pursuant to a waiver mechanism established in the *CMRS Third
    Report & Order* by which licensees could obtain additional
    frequencies, despite the application freeze, if their applications
    were for sites and frequencies within the applicant's aggregate
    geographic footprint.[^32] In its Petition for Reconsideration, East
    River argues that it was premature to approve the OneComm
    applications because such authorizations would make spectrum
    unavailable for East River. East River also questions whether the
    granted frequencies were within OneComm's established
    footprint.[^33]

13. We conclude that there is an insufficient basis to rescind the
    grants made to OneComm. The existence of a pending Petition for
    Reconsideration or Application for Review does not prevent the
    Commission from continuing to apply its rules or from continuing to
    process applications. We do not agree with East River's argument
    that the possibility that its Application for Review would be
    granted precluded the Commission from processing and granting other
    applications.[^34] Nor can we agree with East River that revoking
    grants to OneComm will provide adequate relief for East River as we
    have not found sufficient basis to conclude that the grants went
    beyond OneComm's wide-area network and were thus improper.
    Accordingly, we deny East River's Petition for Reconsideration.

    **IV. ORDERING CLAUSES.**

14. Accordingly, IT IS ORDERED that, pursuant to sections 4(i), 303, and
    307 of the Communications Act, as amended, 47 U.S.C. §§ 154(i), 303,
    and 307, and section 1.115 of the Commission\'s rules, 47 C.F.R. §
    1.115, the Application for Review by East River Electric Power
    Cooperative, filed July 29, 1996, IS GRANTED as provided herein.

15. IT IS FURTHER ORDERED that applications for 800 MHz Specialized
    Mobile Radio licenses filed by East River Electric Power
    Cooperative, file numbers 654526, 654535, 654521, 654522, 654523,
    654524, 654525, 654527, 654528, 654530, 654531, 654532, 654534, and
    654537, ARE REINSTATED. We direct the Wireless Telecommunications
    Bureau to process the applications as specified in Appendix A.

16. IT IS FURTHER ORDERED that the Petition for Reconsideration by East
    River Electric Power Cooperative, filed March 10, 1997, is DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

    **APPENDIX A**

    The following chart lists the East River Electric Power Cooperative
    applications that are reinstated, as well as the associated 800 MHz
    Business and Industrial/Land Transportation frequencies that have
    been identified as available for grant.

  ----------------- ---------------------------------------------- --------------------------
  **Application     **Frequencies to be Granted**                  **Location/Coordinates**
  File No.**                                                       

                                                                   

  654523            856.3375/857.3375/858.3375/859.3375/860.3375   454730N/0964955W

  654527            856.3375/857.3375/858.3375/859.3375/860.3375   443524N/0974045W

  654528            856.3375/857.3375/858.3375/859.3375/860.3375   430855N/0983728W

  654534            856.3375/857.3375/858.3375/859.3375/860.3375   440745N/0992611W

                                                                   

  654524            855.1375/856.3875/857.3875/859.3875/860.3875   442523N/1002119W

  654531            855.1375/856.3875/857.3875/859.3875/860.3875   435757N/0971520W

  654535            855.1375/856.3875/857.3875/859.3875/860.3875   445058N/0962836W

                                                                   

  654521            855.6375/855.6875/855.8625/857.3125/859.3125   443929N/0950321W

  654526            855.6375/855.6875/855.8625/857.3125/859.3125   445217N/0991616W

  654530            855.6375/855.6875/855.8625/857.3125/859.3125   433239N/0963301W

  654537            855.6375/855.6875/855.8625/857.3125/859.3125   444814N/0964955W

                                                                   

  654522            855.4125/855.4375/855.6625/859.3625/860.3625   451221N/0975419W

  654525            855.4125/855.4375/855.6625/859.3625/860.3625   441702N/0961856W

  654532            855.4125/855.4375/855.6625/859.3625/860.3625   430300N/0964712W
  ----------------- ---------------------------------------------- --------------------------

[^1]: Applications of East River Electric Power Cooperative -- Request
    for New 800 MHz SMR Systems, *Application for Review*, filed July
    29, 1996 (Application for Review).

[^2]: East River Electric Power Cooperative Petition for Reconsideration
    of OneComm Corporation N. A. -- Applications for Various 800 MHz SMR
    Stations, filed March 10, 1997 (Petition for Reconsideration).

[^3]: An SMR applicant could "either request specific frequencies . . .
    or . . . request the Commission to select frequencies for the system
    from the SMRS Category." 47 C.F.R. § 90.621(a) (1992); *see* *also*
    § 90.611(c) (1992).

[^4]: Implementation of Sections 3(n) and 332 of the Communications Act,
    GN Docket No. 93-252, Regulatory Treatment of Mobile Services,
    Amendment of Part 90 of the Commission\'s Rules to Facilitate Future
    Development of SMR Systems in the 800 MHz Frequency Band, PR Docket
    No. 93-144, Amendment of Parts 2 and 90 of the Commission\'s Rules
    To Provide for the Use of 200 Channels Outside the Designated Filing
    Areas in the 896-901 MHz and 935-940 MHz Band Allotted to the
    Specialized Mobile Radio Pool, *Third Report and Order*, 9 FCC Rcd
    7988, 8042, (1994) (*CMRS Third Report and Order*).

[^5]: *See CMRS Third Report and Order*, 9 FCC Rcd at 7997, para. 15.

[^6]: Pursuant to a Wireless Telecommunications Bureau reorganization,
    the functions of the former Land Mobile Branch of the Licensing
    Division was incorporated into the Licensing and Technical Analysis
    Branch of the Commercial Wireless Division.

[^7]: The American Mobile Telecommunications Association, Inc., the
    Industrial Telecommunications Association, Inc., and the Personal
    Communications Industry Association (collectively, the Industry
    Coalition).

[^8]: *See* 47 C.F.R. § 90.621(a) (1990); see also § 90.611(c) (1992).

[^9]: SMR facilities are generally given interference protection based
    on a fixed mileage separation from co-channel operations. The
    typical separation between site-based, co-channel systems is 70
    miles. 47 C.F.R. § 90.621(b). In certain cases, the Commission
    granted sites with less than the requisite 70-mile separation
    distance if the applicant had consent from any affected licensees or
    if the applicant provided a technical showing that it would not
    interfere with co-channel licensees. 47 C.F.R. § 90.621(b)(4)-(5).

[^10]: \"Wireless Telecommunications Bureau Processes Over 40,000 and
    Grants More Than 4,500 Applications for 800 SMR, Business,
    Industrial/Land Transportation and General Category Channels
    Received Between November 9, 1993 and August 10, 1994,\" *Public
    Notice*, mimeo No. 52823 (rel. March 17, 1995) (March 17, 1995
    Public Notice).

[^11]: Petition for Reconsideration by the American Mobile
    Telecommunications Association, Inc., the Industrial
    Telecommunications Association, Inc., and the Personal
    Communications Industry Association, filed April 13, 1995.

[^12]: Grant of Applications for 800 MHz SMR Business, Industrial/Land
    Transportation and General Category Channels Received Between
    November 8, 1993 and August 10, 1994, *Order*, 10 FCC Rcd 6635 (WTB
    1995).

[^13]: \"Wireless Bureau Vacates and Supersedes Grants to SMRS Announced
    by March 17, 1995 Public Notice,\" *Public Notice*, Mimeo No. 60472
    (WTB rel. Oct. 31, 1995) (October 31, 1995 Public Notice).

[^14]: In the *800 MHz First Report and Order*, the Commission dismissed
    all applications on the waiting list in the upper 200 channels of
    the 800 MHz band. *See* Amendment of Part 90 of the Commission\'s
    Rules to Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band, *First Report and Order, Eighth Report and Order,
    and Second Further Notice of Proposed Rule Making*, PR Docket No.
    93-144, 11 FCC Rcd 1463, 1635 (1995) (*800 MHz First Report and
    Order*).

[^15]: The Commission dismissed all applications in the lower 230
    channels of the 800 MHz band in the *800 MHz Second Report and
    Order*. *See* Amendment of Part 90 of the Commission\'s Rules to
    Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band, *Second Report and Order*, PR Docket No. 93-144, 12
    FCC Rcd 19079, 19173 (1997). The dismissal of all waitlisted
    applications were final actions. *See* California Water Service
    Company, For Authority to Provide Multiple Address System Service in
    the States of California and Washington, *Memorandum Opinion and
    Order*, FCC 03-118 (rel. June 3, 2003).

[^16]: *See* Letter from Alan S. Tilles, counsel for East River Electric
    Power Cooperative, to Terry L. Fishel, Chief, Land Mobile Branch,
    Federal Communications Commission, filed November 29, 1995 (Petition
    for Reconsideration).

[^17]: *See* Request for Reconsideration at 1.

[^18]: *See* Letter from Alan S. Tilles, counsel for East River Electric
    Power Cooperative, to Terry L. Fishel, Chief, Land Mobile Branch,
    Federal Communications Commission, filed December 12, 1995
    (supplementing Request for Reconsideration), citing letter from
    Carole C. Harris, counsel for East River Electric Power Cooperative,
    to Terry L. Fishel, Chief, Land Mobile Branch, Federal
    Communications Commission, dated January 3, 1995.

[^19]: Letter from Terry Fishel, Chief, Land Mobile Branch, Federal
    Communications Commission, to Alan S. Tilles, counsel for East River
    Electric Power Cooperative, dated June 28, 1996. Former rule
    sections 1.918 and 1.962(c)(1) provided that a request to modify
    frequencies specified in an application constituted a substantial
    change, thereby causing the application to be considered newly filed
    as of the date of the amendment.

[^20]: 47 C.F.R. § 90.611(d) (1992).

[^21]: A regulation must be sufficiently clear to warn a party of what
    is expected of it; there must be sufficient notice such that a
    regulated party would be able to identify, with ascertainable
    certainty, the standards with which the agency expects parties to
    conform. *See* *Trinity Broadcasting of Florida, Inc. v. FCC*, 211
    F.3d 618 (D.C. Cir. 2000).

[^22]: The applications to be reinstated are: file nos. 654521, 654522,
    654523, 654524, 654525, 654526, 654527, 654528, 654530, 654531,
    654532, 654534, 654535, and 654537. One of the applications listed
    in the Application for Review, file no. 654529, was granted pursuant
    to the second Industry Coalition run. The grant was accepted by East
    River. *See* former rule section 90.143(c); *see also* 47 C.F.R. §
    1.945(c).

[^23]: We note that our action with respect to East River should in no
    way be read as invalidating the second Industry Coalition software
    run. We also emphasize that as a general matter, staff action that
    is contrary to the Commission's rules or stated policies is not
    binding on the Commission. *See e.g.* Nextel Communications, Inc. --
    Requests for Waiver of 47 C.F.R. §§ 90.617(c) and 90.619(b),
    *Order*, 14 FCC Rcd 11678 (WTB 1999), citing *Jelks v. FCC*, 146
    F.3d 878, 881 (1998) (a subordinate body like the Division cannot
    alter a policy set by the Commission itself), *cert. denied* 525
    U.S. 1147 (1999), and *Amor Family Broadcasting Group* *v. FCC*, 918
    F.2d 960, 962 (D.C. Cir. 1990); Applications of Ruralvision Central,
    Inc., *Memorandum Opinion and Order on Reconsideration*, 10 FCC Rcd
    11640 (1995); Application of American Cellular Network Corporation
    of Nevada, *Order on Review*, 2 FCC Rcd 4530 (1987).

[^24]: The 800 MHz band is organized into five service categories or
    pools \--Business, Industrial/Land Transportation, General Category,
    Public Safety and SMR---with each category having specific
    eligibility criteria. Prior to 1995, "intercategory sharing" enabled
    SMR, Business, I/LT and Public Safety eligibles to apply for
    frequencies in other service categories. In 1995, the Commission
    suspended the acceptance of applications for intercategory sharing.
    Inter-Category Sharing of Private Mobile Radio Frequencies in the
    806-821/851-866 MHz Bands, *Order*, 10 FCC Rcd 7350 (1995).

[^25]: 47 C.F.R. § 90.621(e)(2). We note that East River previously
    filed waiver requests in 1996 to, in effect, put its private land
    mobile radio (PLMR) spectrum into commercial use. Specifically, East
    River sought to "share" its excess Business and I/LT capacity with
    other Business, I/LT and Public Safety licensees. In order to enable
    such entities to use frequencies outside of their own service
    categories, East River sought, *inter alia*, waivers of the
    intercategory sharing freeze. However, at the time, licensees of
    PLMR channels were not permitted to operate their spectrum for
    commercial use. The Bureau denied East River's requests because East
    River's internal system is PMRS but its proposed for-profit use for
    its excess Business and I/LT capacity could not be classified as
    PMRS. Rather than a permissible sharing arrangement in which each
    licensee would be using the same spectrum to provide PMRS service to
    itself, the Bureau found that the proposed use would consist of East
    River managing a wide-area mobile radio system for profit. Further,
    the Bureau noted that shared use on a for-profit basis is only
    permitted for SMR licensees; other 800 MHz category entities were
    ineligible. *See* East River Electric Power Cooperative -- Requests
    for Waiver of the Inter-Category Freeze at 800 MHz and Section
    90.621(e)(5), Order, 12 FCC Rcd 5871 (WTB 1997). In contrast, the
    relief being offered here is different in that the Commission
    subsequently modified section 90.621(e)(2) of its rules to permit
    PLMR licensees to convert 800 MHz Business or I/LT category
    frequencies to commercial use. Accordingly, East River is now able
    to provide CMRS service using Business or I/LT pool channels. *See*
    Implementation of Sections 309(j) and 337 of the Communications Act
    of 1934, as amended, WT Docket No. 99-87, Promotion of Spectrum
    Efficient Technologies on Certain Part 90 Frequencies, RM-9332,
    Establishment of Public Service Radio Pool in the Private Mobile
    Frequencies Below 800 MHz, RM-9405, Petition for Rule Making of the
    American Mobile Telecommunications Association, RM-9705, *Report and
    Order and Further Notice of Proposed Rulemaking*, 15 FCC Rcd 22709
    (2000) (*Balanced Budget Act Report and Order*).

[^26]: 47 C.F.R. § 90.621(e)(2)(ii).

[^27]: 47 C.F.R. § 90.621(e)(2)(i).

[^28]: *See* *Balanced Budget Act Report and Order*, 15 FCC Rcd at
    22762-63, paras. 114-15. We also did not apply the five-year holding
    requirement to licenses granted or applications filed prior to the
    adoption of the *Balanced Budget Act Report and Order*. The
    Commission concluded that no purpose would be served by applying the
    holding period to grants or applications made prior to the rule
    change because no speculative intent on the part of licensees or
    applicants could be inferred in those cases. *Balanced Budget Act
    Report and Order*, 15 FCC Rcd at 22763, para. 116. The same
    rationale applies here \-\-- no speculative incentive on the part of
    East River can be inferred in this situation.

[^29]: We note that although we are authorizing these frequencies as
    CMRS, East River, as a Business and I/LT eligible, may at anytime
    choose to modify the subject frequencies for use in its PLMR system.
    *See* 47 C.F.R. § 90.621(e)(3).

[^30]: *See* 47 C.F.R. § 90.621(e)(2)(iii), (iv). Normally, this
    certification must be included in a licensee's modification
    application. Because we are not requiring East River to file a
    modification application, we will require East River to submit the
    certification within 60 days of the effective date of this order.

[^31]: *See* authorizations of OneComm Corporation, issued February 7,
    1997. The OneComm grants included sites located near as well as
    areas far removed from East River's requested sites.

[^32]: *See e.g.* *CMRS Third Report and Order*, 9 FCC Rcd at 8048,
    para. 108; Letter from Ralph Haller, Chief, Private Radio Bureau,
    Federal Communications Commission, to David E. Weisman, 8 FCC Rcd
    143 (WTB 1992); Requests for Waiver of the 800 MHz Specialized
    Mobile Radio Application Freeze, *Order*, 11 FCC Rcd 13850 (WTB
    1996).

[^33]: Petition for Reconsideration at 7, 8.

[^34]: *See e.g.* Application of Ray M. Stanfield, Receiver, and
    Robeson/Suttles Broadcasting, Inc., *Order on Reconsideration*, 12
    FCC Rcd 3345 (1997).