Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | FCC File No. C032585         |
|                                  | *) |                              |
| FISHER RANCH                     | ** |                              |
|                                  |    |                              |
| Application for Assignment of    | *  |                              |
| License and Modification of      | *) |                              |
| Private Land Mobile Radio        | ** |                              |
| Service Station WNXG464, Mt.     |    |                              |
| Potisi, Nevada, and Request for  | *  |                              |
| Waiver of Commission Rules       | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: January 10, 2002 Released: January 11, 2002**

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

1.  *Introduction*. In this *Order*, we address the above-captioned
    private land mobile radio services (PLMRS) application and waiver
    request of Fisher Ranch for assignment and modification of Station
    WNXG464, Mt. Potisi, Nevada.[^1] For the reasons set forth below, we
    grant the waiver request (Request).

2.  *Background*. PLMRS frequencies in the 806-821/851-866 MHz bands
    (the "800 MHz band") are divided into the following "categories" or
    "pools": (a) Specialized Mobile Radio (SMR), (b) Public Safety, (c)
    Business, (d) Industrial/Land Transportation (I/LT) and (e)
    General.[^2] As a general matter, applicants are licensed on
    frequencies in the category or categories for which they meet the
    eligibility criteria. Section 90.621(e) of the Commission's Rules,
    however, permits "inter-category sharing" whereby applicants that
    are eligible for licensing in the 800 MHz Public Safety,
    Industrial/Land Transportation or Business Categories can be
    licensed on channels outside of their respective categories if no
    channels are available in the category for which the applicant is
    eligible.[^3] On April 5, 1995, the Wireless Telecommunications
    Bureau (Bureau) suspended the acceptance of applications for
    inter-category sharing (inter-category sharing freeze) of all PLMRS
    frequencies in the 800 MHz band.[^4]

3.  Northwest Pipeline Corporation (Northwest) is the current licensee
    of Station WNXG464. The station operates on frequency 854.9875 MHz,
    a Public Safety frequency[^5] that Northwest, an I/LT eligible,
    obtained through inter-category sharing prior to 1995. On July 18,
    2000, the Licensing and Technical Analysis Branch (Branch) of the
    Bureau's Public Safety and Private Wireless Division received an
    application to assign the license from Northwest to Fisher Ranch,
    another I/LT eligible. The application also sought to modify the
    license by moving the transmitter thirty-two miles east-northeast,
    from its current site approximately twenty-five miles west of Las
    Vegas, Nevada, to a location approximately eight miles northeast of
    Las Vegas. On December 27, 2000, the Branch returned the
    application, because it did not include a request for waiver of the
    inter-category sharing freeze.[^6] On May 3, 2001, Fisher Ranch
    amended the application to request such a waiver.

4.  *Discussion*. A waiver may be granted where the (i) the underlying
    purpose of the rule(s) would not be served or would be frustrated by
    application to the instant case, and that a grant of the requested
    waiver would be in the public interest; or (ii) in view of unique or
    unusual factual circumstances of the instant case, application of
    the rule(s) would be inequitable, unduly burdensome or contrary to
    the public interest, or the applicant has no reasonable
    alternative.[^7] In support of its request, Fisher Ranch argues that
    its proposal will not frustrate the underlying purpose of the
    inter-category sharing freeze.[^8] In this connection, Fisher Ranch
    states that the inter-category sharing freeze was "designed to
    preserve the 800 MHz spectrum landscape while the Commission
    considered the SMR service spectrum allocation issues."[^9] Fisher
    Ranch reasons further that because at the time the Bureau
    implemented the inter-category sharing freeze the subject frequency
    was already assigned to an I/LT user in the Las Vegas area,
    permitting Fisher Ranch to acquire and relocate it to another site
    in the Las Vegas area will not change the spectrum landscape as
    frozen in 1995, nor will it conflict with the policy considerations
    that prompted the Commission to adopt the inter-category sharing
    freeze.[^10] We are persuaded by Fisher Ranch's arguments under the
    circumstances presented that grant of a waiver to permit the
    assignment of the license from Northwest to Fisher Ranch would not
    frustrate the underlying purpose of the inter-category sharing
    freeze.

5.  However, we disagree with Fisher Ranch's suggestion that any
    relocation within the same urban area would not conflict with the
    purposes of the inter-category freeze. In this connection, we note
    that ensuring that the needs of the public safety community were not
    compromised was a significant factor underlying the Bureau's
    adoption of the inter-category sharing freeze.[^11] Against this
    backdrop, because public safety users are typically concentrated in
    urban areas, we are concerned that a relocation closer to the center
    of the city, as proposed by Fisher Ranch, could impact public safety
    users operating on the same frequency.[^12] Thus, we believe that we
    must consider public safety communications currently being carried
    on the subject frequency in the same urban area before permitting
    the proposed relocation. In this case, we have reviewed the
    licensing database and found that there are no co-channel Public
    Safety licensees within 113 kilometers[^13] of either the current
    site of Station WNXG464 or the proposed new location. We also note
    that the Association of Public-Safety Communications
    Officials-International, Inc., a FCC-certified frequency coordinator
    for 800 MHz Public Safety frequencies, gave its concurrence to
    Fisher Ranch's request.[^14] In this instance, therefore, we
    conclude that the proposed modification would have no adverse impact
    on public safety systems, and that grant of the requested waiver
    would not undermine the underlying purposes of the inter-category
    freeze.

6.  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 and 90.621 of the Commission's Rules, 47 C.F.R. §§
    1.925, 90.621, the application and request for waiver filed by
    Fisher Ranch, on May 3, 2001 IS GRANTED, and application FCC File
    No. C032585 SHALL BE REFERRED to the Public Safety and Private
    Wireless Division, Licensing and Technical Analysis Branch for
    processing consistent with this *Order*.

7.  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]: FCC File No. C032585 (Request).

[^2]: *See* 47 C.F.R. §§ 90.615, 90.617. It should be noted, however,
    that although they are regulated under Part 90 of the Commission
    Rules, SMR and General Category frequencies generally are now used
    to provide commercial mobile radio services, rather than PLMRS.

[^3]: *See* 47 C.F.R. § 90.621(e)(1).

[^4]: *See* Inter-Category Sharing of Private Mobile Radio Frequencies
    in the 806-821/851-866 MHz Bands, *Order*, 10 FCC Rcd 7350 (WTB)
    (*Inter-Category Sharing Order*), *aff'd on recon.,* 11 FCC Rcd 1452
    (WTB 1995).

[^5]: *See* 47 C.F.R. § 90.617(a).

[^6]: Automated Dismissal Letter, Reference No. 707381, (Dec. 12, 2000).

[^7]: 47 C.F.R. § 1.925(b)(3)(i), (ii).

[^8]: *See* Request at 3-4.

[^9]: *Id*.

[^10]: *Id*. at 4.

[^11]: *See Inter-Category Sharing Order*, 10 FCC Rcd at 7351 ¶ 4.

[^12]: *See, e.g., id*. at 7352 ¶ 7.

[^13]: *See* 47 C.F.R. § 90.621(b)(4).

[^14]: *See* Request at 2.