Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. 0000310859          |
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| Reese Telecommunications Inc.    | ) |                              |
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| 900 MHz Station WNKM 869         | * |                              |
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| Atlanta, Georgia                 | * |                              |
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**ORDER**

**Adopted: March 22, 2002 Released: March 25, 2002**

By the Chief, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau:

**I. Introduction**

1.  This Order addresses a Request for Waiver filed by Reese
    Telecommunications Inc. (Reese) on December 13, 2000 (Waiver
    Request).[^1] In the Waiver Request, Reese notifies the Commission
    of the temporary discontinuance of operations of its 900 MHz SMR
    station in Atlanta, GA (Station) in excess of 90 days, but asserts
    that it did not permanently discontinue operation of the Station,
    which would trigger cancellation of the license under Section
    90.631(f) of the Commission's rules.[^2] In the event the Bureau
    determines that the discontinuance of operations was permanent
    within the meaning of the rule, Reese requests a waiver of Section
    90.631(f). For the reasons discussed below, we find that the
    circumstances presented by Reese do not constitute permanent
    discontinuance of operations within the meaning of Section
    90.631(f), and we therefore dismiss Reese's Waiver Request as moot.

**II. Background**

2.  Reese has held the authorization for the Station, licensed under
    call sign WNKM869, since 1995. During that time, Motorola, Inc.
    (Motorola) provided management services for the Station pursuant to
    a management agreement with Reese. On April 11, 2000, Reese notified
    Motorola that Reese was to be acquired by Southern Communication
    Services, Inc. (Southern). In June 2000, the parties filed a
    transfer of control application with the Commission for approval of
    Southern's acquisition of control of Reese. On July 7, 2000,
    Motorola cleared the channels and terminated operation of the
    Station. Motorola states that this was in accordance with its
    general practice as a manager when a Motorola-managed station was to
    be assigned from one licensee to another.[^3] However, because the
    Reese-Southern transaction was a corporate acquisition of Reese, not
    a license assignment, the parties to the transaction did not intend
    any cessation or interruption of the Station's operation, and Reese
    had not instructed Motorola to take any such action.[^4] In mid-July
    of 2000, Motorola informed Reese that it had terminated operation of
    the Station. Reese states that it immediately instructed Motorola to
    recommence operation of the Station, but that Motorola failed to
    comply with this instruction.[^5]

3.  On August 15, 2000, the Commission approved the transfer of control
    from Reese to Southern. The transaction was consummated on September
    29, 2000, and a Notice of Consummation was filed with the Commission
    on October 13, 2000. In mid-November 2000, Reese was advised that
    Motorola had failed to recommence operation of the Station as
    previously requested and again instructed Motorola to do so.[^6]
    After ordering and installing the necessary equipment, Motorola
    recommenced operation of the Station on December 13, 2000. On the
    same day, Reese filed the instant notification of discontinuance and
    waiver request with the Bureau.

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III. **Discussion**

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4.  Section 90.631(f) provides that an "SMR licensee with facilities
    that have discontinued operations for more than 90 days is presumed
    to have permanently discontinued operations, unless the licensee
    notifies the Commission otherwise...prior to the end of the 90 day
    period."[^7] In its Waiver Request and Memorandum, Reese
    acknowledges that as a result of Motorola's actions, the Station was
    non-operational from July 7 to December 13, 2000, a period of 159
    days. However, Reese contends that the circumstances presented here
    do not constitute permanent discontinuance within the meaning of the
    rule. Reese contends that rule's use of the term "presumed"
    indicates that a discontinuance of more than 90 days does not
    automatically constitute permanent discontinuance, but merely
    creates a presumption of permanent discontinuance that may be
    overcome by a sufficient factual showing.[^8] Reese argues that the
    presumption does not apply here in light of the facts surrounding
    the case, including the fact that Motorola's termination of
    operations was unauthorized by Reese and that Reese took steps to
    ensure that service was promptly reinstated.[^9]

5.  In the event the Bureau determines that the discontinuance of the
    Station's operations in excess of 90 days was permanent within the
    meaning of Section 90.631(f), Reese alternatively requests a waiver
    of the rule to prevent cancellation of the license. Reese argues
    that denial of the waiver would frustrate the underlying purpose of
    Section 90.631(f), which is to facilitate efficient spectrum use by
    recovering unused spectrum following permanent abandonment by an
    existing licensee.[^10] Reese states that if its license is
    cancelled, the result will not be recovery of abandoned spectrum but
    rather interruption of service to the public. Reese also argues that
    grant of a waiver will serve the public interest by allowing Reese
    to continue to serve its existing customers and compete with other
    mobile radio service providers.[^11]

6.  Based on our review of the record, we conclude that under the
    particular facts and circumstances of this case, the cessation of
    the Station's operations from July to December 2000 did not
    constitute permanent discontinuance of operations within the meaning
    of Section 90.631(f). Although the rule provides that a
    discontinuance for more than 90 days is presumed to be permanent,
    Reese has submitted substantial evidence that the cessation of the
    Station's operations by Motorola was unauthorized by Reese,[^12] and
    that Reese made prompt and diligent efforts in July and again in
    November 2000 to reinitiate service upon being advised of Motorola's
    unauthorized actions.[^13] Moreover, the total period of
    discontinuance -- slightly over five months -- was not significantly
    longer than 90 days, and Reese voluntarily notified the Commission
    of the fact the discontinuance had occurred. We find that these
    facts and circumstances are sufficient to overcome the presumption
    that Reese permanently discontinued operation of the Station. We
    emphasize that our decision is strictly limited to the facts
    presented herein, and that different circumstances, such as a
    lengthier period of discontinuance or a lack of diligence by the
    licensee in remedying unauthorized cessation of operations, could
    lead to a different result. Further, this decision in no way
    relieves licensees of responsibility for the acts or omissions of
    system managers resulting in violation of Commission rules.

7.  For the reasons discussed above, we find that Reese did not
    permanently discontinue service in violation of Section 90.631(f).
    Because we conclude the rule does not apply in this instance, we
    dismiss Reese's request for waiver as moot.

**IV. Ordering Clause**

8.  Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 405
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    405, and Sections 0.331, 1.925 and 90.631(f) of the Commission's
    Rules, 47 C.F.R. §§ 0.331, 1.925, 90.631(f), the Waiver Request
    filed on December 13, 2000 by Reese Telecommunications Inc. IS
    DISMISSED as moot.

    FEDERAL COMMUNICATIONS COMMISSION

> Paul D'Ari
>
> Chief, Policy and Rules Branch
>
> Commercial Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: Reese Telecommunications, Inc. Request for Waiver filed December
    13, 2000. Reese filed a Supplemental Memorandum in support of the
    Waiver Request on October 4, 2001 (Memorandum).

[^2]: 47 C.F.R. § 90.631(f).

[^3]: *See* Affidavit of Ronald W. Barkby, Manager of Regulatory
    Affairs-3G Spectrum for Motorola, Inc., at 2 (October 12, 2001)
    (Barkby Affidavit).

[^4]: *See* Affidavit of James J. Morrison, Secretary of Reese
    Telecommunications, at 2 (October 25, 2001) (Morrison Affidavit);
    *See also* Barkby Affidavit.

[^5]: *See* Morrison Affidavit.

[^6]: *See* Barkby Affidavit.

[^7]: 47 C.F.R. § 90.631(f).

[^8]: We note that a substantial period of non-operation of an
    authorized facility without licensee knowledge will be considered as
    a factor in determining whether a *de facto* transfer of control of
    the station license has occurred.

[^9]: Memorandum at 2.

[^10]: Memorandum at 4.

[^11]: Memorandum at 4-5. Reese cites the 1995 *Page America* case as
    precedent for not canceling its license. Memorandum at 5-6. In that
    case, Page America acquired approximately 200 Part 22 paging
    authorizations by assignment, and discovered after consummation that
    many of the licensed facilities had either not been constructed or
    had been deconstructed and left non-operational for more than 90
    days. The Wireless Bureau and Page America entered into a Consent
    Decree in which Page America agreed to the cancellation of licenses
    for 89 unconstructed facilities, but retained licenses for 26
    stations that had been non-operational for more than 90 days, and
    made a voluntary payment of \$125,000 to the U.S. Treasury.
    PageAmerica of New York, Inc. and PageAmerica of California, Inc.,
    Stations in the Public Mobile Service, *Order*, 10 FCC Rcd 8703 (WTB
    1995).

[^12]: Motorola specifically acknowledges that its termination of
    operations was not authorized by Reese. *See* Barkby Affidavit.

[^13]: *See* Morrison Affidavit; Barkby Affidavit.