Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| ILLINOIS COOPERATIVE             | ) |                              |
| ASSOCIATION, INC. d/b/a Clear    | * |                              |
| Talk                             | * |                              |
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| Request for Waiver of 47 C.F.R.  | * |                              |
| §§ 90.179(a), 90.603(b)          | * |                              |
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**ORDER**

**Adopted:** December 26, 2001 **Released:** December 28, 2001

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

# introduction

1.  In this *Order*, we consider a request for waiver of Sections
    90.179(a) and/or 90.603(b) of the Commission's Rules[^1] submitted
    by Illinois Cooperative Association, Inc. d/b/a Clear Talk (IL Coop)
    on February 21, 2001.[^2] Specifically, IL Coop seeks authorization
    to share its 800 MHz Industrial/Land Transportation (I/LT)
    frequencies with non-I/LT Business eligibles. For the reasons stated
    below, we deny IL Coop's waiver request.

# background

2.  The 800 MHz band is divided into five service categories --
    Business, General Category, I/LT, Public Safety and Specialized
    Mobile Radio (SMR) -- with each category having specific eligibility
    criteria.[^3] As a general matter, entities are licensed on
    frequencies in the category or categories for which they meet the
    eligibility criteria. Section 90.603 of the Commission's Rules
    establishes the framework by which an entity may provide
    communications services to other parties on a not-for-profit,
    cost-shared basis.[^4] Section 90.179 of the Commission's Rules
    provides that licensees of radio stations may share the use of their
    facilities under certain conditions.[^5] Generally, shared use of
    radio stations is limited to persons who would be separately
    eligible for authorization on the subject frequencies.[^6]

3.  IL Coop was formed by four electric cooperatives serving nineteen
    counties in rural Illinois.[^7] It is currently licensed to use one
    hundred twenty-one 800 MHz band channels at thirty-eight sites.[^8]
    The four electric cooperatives use this combined communications
    system for dispatching crews, meter reading and communicating with
    one another during emergency situations.[^9] Integration of their
    separate, outmoded systems into a single, state-of-the-art network
    resulted in excess capacity.[^10]

4.  On January 21, 2000, IL Coop filed its initial waiver request
    seeking authorization to allow non-I/LT Business eligibles and
    Public Safety eligibles to use its I/LT frequencies. On January 18,
    2001, we granted in part and denied in part IL Coop's initial waiver
    request.[^11] We granted its request to share I/LT frequencies with
    Public Safety eligibles because, subsequent to IL Coop's filing of
    its initial waiver request, the Commission amended its eligibility
    rules to allow such sharing.[^12] However, because we found that the
    circumstances described by IL Coop -- *i*.*e*., that Business
    eligibles in rural Illinois shared a need with Public Safety
    entities for low-cost, high quality dispatch service -- did not
    warrant a waiver of the Commission's Rules, we denied its request to
    share I/LT frequencies with other non-I/LT eligibles.[^13]
    Specifically, we concluded that IL Coop had not demonstrated any
    need for Business eligibles to have interoperability with the
    system's other users, and had not substantiated its claim that these
    entities lacked other communications alternatives.[^14]

5.  While IL Coop's initial waiver request was pending, the Commission
    released the *BBA R&O*, which amended our rules to permit 800 MHz
    Business and I/LT licensees to modify their licenses to authorize
    use of the channels for commercial operation, or to assign the
    channels to a commercial operator, under certain circumstances and
    conditions.[^15] Subsequently, IL Coop filed the present waiver
    request.

# discussion

6.  Section 1.925 of the Commission's Rules permits a rule waiver if the
    underlying purpose of the rule(s) would not be served or would be
    frustrated by application to the instant case, and grant of the
    requested waiver would be in the public interest.[^16]
    Alternatively, an applicant's request for waiver may also be granted
    if, in view of unique or unusual factual circumstances, application
    of the rule(s) would be inequitable, unduly burdensome or contrary
    to public interest, or the applicant has no reasonable
    alternative.[^17] As noted above, we concluded in the *Initial
    Order* that IL Coop failed to show that a waiver of Section 90.603
    to permit it to share its I/LT frequencies with non-I/LT Business
    eligibles was warranted. IL Coop argues that its current request
    meets the criteria of Section 1.925(b)(3)(i) -- namely, that the
    underlying purpose of the rule would not be served or would be
    frustrated by application to the instant case, and grant of the
    request would be in the public interest.[^18] However, IL Coop does
    not offer any new facts or information regarding its system or
    service that differs from what it presented in its initial waiver
    request.[^19]

7.  Rather, IL Coop rests its argument on regulatory changes that
    occurred after the submission of its initial waiver request. In this
    regard, it argues that equity demands that it, as an 800 MHz private
    land mobile radio (PLMR) licensee, be permitted to share its PLMR
    frequencies with any PLMR eligible, since the Commission's rules now
    permit modification of licenses to allow use of 800 MHz PLMR
    channels in commercial systems.[^20] IL Coop concludes that it
    should be afforded the same flexibility to pursue operation
    strategies that would result in the most efficient use of its
    authorized channels.[^21]

8.  IL Coop suggests that the rule change in the *BBA R&O* permitting
    800 MHz PLMR licensees to submit modification applications to allow
    use of their PLMR spectrum in commercial operations in effect lifts
    the freeze[^22] on inter-category sharing of Business and I/LT
    frequencies.[^23] IL Coop asserts that the Commission has abandoned
    a distinction between Business, I/LT and SMR eligibles.[^24] It
    argues that this action justifies a waiver of our rules limiting
    sharing of such frequencies to eligible entities.[^25] We disagree.
    The *BBA R&O* did not expressly lift or modify the inter-category
    sharing freeze. In fact, the Commission specifically declined to
    adopt a proposal to eliminate the distinction between CMRS spectrum
    and non-public safety PLMR spectrum.[^26] In the *BBA R&O*, the
    Commission decided only to allow 800 MHz PLMR licensees to modify
    their authorizations to permit the use of their assigned PLMR
    frequencies for commercial operations, subject to certain provisions
    and restrictions.[^27] In particular, a PLMR licensee, like IL Coop,
    may modify its license to permit commercial use of its PLMR
    channels. Such a modification would allow IL Coop to achieve its
    desired result, *i.e.*, the ability to allow Business eligibles to
    use its I/LT channels.[^28] The Commission's decision was based on a
    balancing of various factors, including the need shown in the record
    of that proceeding for additional commercial spectrum in the 800 MHz
    band, and the reasons underlying the inter-category sharing
    freeze.[^29] Further, certain conditions were placed on the
    commercial use of 800 MHz PLMR spectrum in order to maintain this
    balance.[^30] The *BBA R&O* did not address either assignment of
    Business or I/LT frequencies for other uses by way of inter-category
    sharing, or the not-for-profit sharing of such frequencies.

9.  Furthermore, we are concerned that the practical effect of granting
    IL Coop's waiver request would be to establish a policy of general
    applicability regarding 800 MHz PLMR spectrum and 800 MHz spectrum
    eligibility. It is axiomatic that the Commission "must not
    eviscerate a rule by a waiver."[^31] "The Commission has been
    especially reluctant to grant a waiver when to do so would 'invite
    numerous other waiver requests which, if granted, would effectively
    circumvent the Commission's rulemaking function.'"[^32] Instead, we
    believe that a rulemaking proceeding or similar proceeding seeking
    relief of general applicability from the freeze[^33] would be a
    "better, fairer, and more effective method" of implementing a new
    policy than the granting of individual waivers.[^34]

# conclusion

10. Based on our review of the record before us, we conclude that IL
    Coop has not demonstrated that grant of a waiver of the Commission's
    Part 90 rules regarding eligibility for use of I/LT spectrum is
    warranted under the circumstances presented. IL Coop failed to
    demonstrate that the underlying purpose of the rule would not be
    served or would be frustrated.

# ordering clauses

11. Accordingly, IT IS ORDERED that pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Sections 1.925, 90.179 and 90.603(b) of the Commission's Rules, 47
    C.F.R. §§ 1.925, 90.179, 90.603(b), the Waiver Request filed by
    Illinois Cooperative Association on February 21, 2000 IS DENIED.

12. 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.

> FEDERAL COMMUNICATIONS COMMISSION
>
> D'wana R. Terry
>
> Chief, Public Safety and Private Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 90.603(b).

[^2]: Illinois Cooperative Association Waiver Request (filed Feb. 21,
    2000) (Waiver Request II).

[^3]: *See* 47 C.F.R. §§ 90.615, 90.617.

[^4]: 47 C.F.R. § 90.603(b).

[^5]: 47 C.F.R. § 90.179.

[^6]: *Id*.

[^7]: Waiver Request II at Attachment.

[^8]: *Id*. Of these channels, 45 are Business, 27 are I/LT and the
    remaining channels are SMR.

[^9]: *Id*. at 2.

[^10]: *Id*.

[^11]: Illinois Cooperative Association Inc. d/b/a/ Clear Talk, *Order*,
    16 FCC Rcd 1002 (WTB PSPWD 2001) (*Initial Order*).

[^12]: *Id*. at 1604 ¶ 6 (citing 1998 Biennial Regulatory Review -- 47
    C.F.R. Part 90 -- Private Land Mobile Radio Services, *Report and
    Order and Further Notice of Proposed Rule Making*, PR Docket No.
    92-235, 15 FCC Rcd 16673, 16684 ¶ 21 (2000) (determining that
    Industrial/Business licensees would be allowed to share frequencies
    with public safety and Federal Government entities)).

[^13]: *See Initial Order*, 16 FCC Rcd at 1004-05 ¶ 7.

[^14]: *Id*.

[^15]: *See* 47 C.F.R. § 90.621(e)(2); Implementation of Sections 309(j)
    and 337 of the Communications Act of 1934 as Amended; Promotion of
    Spectrum Efficient Technologies on Certain Part 90 Frequencies;
    Establishment of Public Service Radio Pool in the Private Mobile
    Frequencies Below 800 MHz; Petition for Rule Making of the American
    Mobile Telecommunications Association, *Report and Order and Further
    Notice of Proposed Rule Making*, WT Docket No. 99-87, RM-9332,
    RM-9405, RM-9705, 15 FCC Rcd 22709, 22760-64 ¶¶ 109-19 (2000) (*BBA
    R&O*).

[^16]: 47 C.F.R. § 1.925(a)(3)(i).

[^17]: 47 C.F.R. § 1.925(a)(3)(ii).

[^18]: Waiver Request II at 4-7.

[^19]: Because IL Coop does not offer any new facts or information
    regarding its system or service that differs from what it presented
    in its initial waiver request, we note that similar requests to
    permit non-I/LT eligibles to share I/LT frequencies by other
    licensees have been denied. *See* Waiver Request at 22 (citing East
    River Electric Power Cooperative, *Order*, 13 FCC Rcd 5871 (WTB
    1997); Viking Dispatch Services, Inc., *Order*, 11 FCC Rcd 6685 (WTB
    1996), *aff'd*, *Memorandum Opinion and Order*, 14 FCC Rcd 18814
    (1999)); *see also Initial Order*, 16 FCC Rcd at 1004-05 ¶ 7.

[^20]: *Id*. at 5-7.

[^21]: *Id*. at 7.

[^22]: *See* Waiver II at 6.

[^23]: *See* Inter-Category Sharing of Private Mobile Radio Frequencies
    in the 806-821/851-866 MHz Bands, *Order*, 10 FCC Rcd 7350 (WTB
    1995).

[^24]: *Id*. at 4.

[^25]: *Id*. at 6.

[^26]: *BBA R&O*, 15 FCC Rcd at 22762 ¶ 113.

[^27]: *Id*. at 22760-61 ¶ 110.

[^28]: To the extent that IL Coop believes that it does not come within
    the scope of the rule permitting commercial use of 800 MHz PLMR
    spectrum, *see* Waiver Request II at 7, it may seek a waiver of the
    rule, if it believes that its request would satisfy the standard set
    forth in 47 C.F.R. § 1.925(b)(3).

[^29]: *See id*. at 22759-62 ¶¶ 108-13.

[^30]: *See id*. at 22762-64 ¶¶ 114-18.

[^31]: Nextel Communications, Inc., *Order*, 14 FCC Rcd 11678, 11691 ¶
    31 (WTB 1999) (*Nextel Order*) (citing Riverphone, Inc., *Memorandum
    Opinion and* Order, 3 FCC Rcd 4690, 4692 ¶ 12) (1998)).

[^32]: *Nextel Order*, 14 FCC Rcd at 11691-92 ¶ 31 (quoting Verilink
    Corporation, *Memorandum Opinion and Order*, 10 FCC Rcd 8914, 8916 ¶
    6 (1995)).

[^33]: In this regard, we note that we do not believe that IL Coop's
    one-sentence footnote indicating that the Commission could resolve
    the present request by lifting the freeze to constitute a sufficient
    request that we consider lifting the inter-category freeze. *See*
    Waiver Request II at 7 n.14.

[^34]: *See* Stockholders of Renaissance Communications Corp. and
    Tribune Co., *Memorandum Opinion and Order*, 12 FCC Rcd 11866,
    11887-88 ¶ 50 (1997); *see also* *Nextel Order*, 14 FCC Rcd at
    11691-92 ¶ 31.