Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | * | FCC File No. D118612         |
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| REEVES REALTY, INC.              | ) |                              |
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| Request for Waiver of 47 C.F.R § | * |                              |
| 90.617(c)                        |   |                              |
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**ORDER ON RECONSIDERATION**

**Adopted:** January 29, 2001 **Released:** January 31, 2001

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

# Introduction

1.  On January 3, 2000, Reeves Realty, Inc. (Reeves) filed a
    petition[^1] seeking reconsideration of the December 14, 1999,
    action[^2] of the Public Safety and Private Wireless Division,
    Licensing and Technical Analysis Branch (Branch) denying Reeves's
    request for waiver of Section 90.617(c) of the Commission's
    Rules[^3] and dismissing its associated application to assign and
    modify the license for 800 MHz Specialized Mobile Radio Service
    (SMR) Stations WPBE376 and WNQC444, Dayton, Ohio. For the reasons
    discussed below, we deny the Petition.

# background

2.  On November 12, 1998, Reeves filed a request for waiver of Section
    90.617(c) of the Commission's Rules to assign Business Radio
    Category Station WNQC444 from an affiliate company, P&R Cellular,
    Inc., to Reeves, thereby incorporating Station WNQC444 into its
    existing commercial SMR system, Station WPBE376.[^4] A waiver was
    required because Section 90.617(c) prohibited the use of Business
    Radio Category channels in SMR systems.[^5] In its decision, the
    Branch, relying on a recent *Order*,[^6] denied the waiver request
    and dismissed the application, finding that grant of a waiver to
    permit the assignment of private land mobile radio service (PLMRS)
    spectrum to commercial use would undermine the intent of the
    Commission's Rules.[^7]

3.  Prior to 1995, "inter-category sharing" enabled eligibles for the
    SMR, Business, Industrial Land Transportation, and Public Safety
    categories to apply for frequencies in other categories regardless
    of eligibility criteria under certain circumstances.[^8] In April
    1995, the Wireless Telecommunications Bureau (Bureau) instituted an
    "inter-category sharing freeze" that prohibited the filing of
    applications for inter-category sharing among the aforementioned
    eligibles.[^9] The objective of the inter-category freeze was to
    prohibit the acceptance of inter-category sharing applications for
    spectrum by non-eligibles until the Commission resolved eligibility
    and geographic area licensing issues regarding the 800 MHz
    band.[^10] In December of 1995, the Commission eliminated
    inter-category sharing for SMR entities.[^11]

4.  In its Petition, Reeves argues that that the Branch failed to
    consider unique circumstances in determining whether to grant the
    waiver to allow the incorporation of a PLMRS channel into its
    existing commercial SMR operation.[^12] Specifically, Reeves makes
    the following points: (1) the assignment of the license at issue
    should be considered *pro forma* and accomplished by notification
    (rather than by application) to the Commission because the same
    principals own the same percentage of both the assignor company and
    the assignee company;[^13] (2) the Branch's reliance on the *Nextel*
    *Order* in denying Reeves's waiver request is incorrect because
    Reeves is a much smaller company seeking a waiver for only one
    frequency;[^14] (3) because the purpose in eliminating
    inter-category sharing was to preserve the availability of unused
    channels, the proposed assignment of an already licensed Business
    channel poses no threat to the availability of the channels to
    Business Radio Service eligibles;[^15] (4) the waiver request is
    consistent with the FCC's long term policy of promoting licensee
    flexibility to respond to market demands;[^16] (5) grant of the
    waiver would increase efficiency of operation;[^17] and (6) there
    may be retroactive application of the filing freeze because at the
    time of the license grant, the frequency was available for
    commercial and other uses.[^18]

# discussion

5.  As an initial matter, Reeves claims that the assignment of the
    license should be considered to be *pro forma* because the frequency
    in question is already licensed to an affiliate of Reeves where the
    same principals own the same percentage of each company.[^19] Reeves
    does not, however, merely seek to transfer the frequency at issue
    from an affiliate to its parent company. Additionally, the
    application seeks to "modify" the license for Station WPBE376 by
    adding the frequency 855.5125 MHz (channel 181).[^20] Section 1.929
    of the Commission's Rules is clear that such requests are considered
    "major," rather than minor modifications.[^21] Moreover, Section
    1.947 of the Commission's Rules states that major modifications
    "require prior Commission approval."[^22] Consequently, the instant
    application is not *pro forma* and requires Commission approval.

6.  We now address Reeves's request for waiver of Section 90.617(c) of
    our Rules. A waiver may be granted where the applicant demonstrates
    that:

> \(i\) 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.[^23]

7.  We believe that the Branch correctly denied Reeves's request for a
    waiver of Section 90.617, and that Reeves failed to establish that a
    grant of its waiver request was warranted. In this connection, the
    underlying purpose of Section 90.617(c) of the Commission's Rules
    was to "preserve PLMRS frequencies for use by those who meet the
    eligibility criteria" and "stop the subsequent licensing of PLMRS
    spectrum for SMR operations."[^24] This purpose would have been
    undermined by granting the requested waiver, despite Reeves's
    assertion that the frequency at issue is currently unavailable and
    therefore, its assignment would not threaten the availability of
    spectrum for Business Radio Service eligibles.[^25] This same
    argument was made in *Nextel*.[^26] In that case, the Bureau
    specifically stated that Nextel's request to incorporate PLMRS
    channels in its SMR system "appear\[ed\] to be at odds" with the
    underlying purpose of Section 90.617(c) of the Commission's
    Rules.[^27] For the same reason, we also reject Reeves's claim that
    *Nextel* should not apply because of its comparative size and scope
    of operations. Further, while grant of the waiver might increase the
    efficiency of Reeves's operations,[^28] its Petition fails to cite
    unique or unusual circumstances that cause application of Section
    90.617(c) to be inequitable, unduly burdensome, or contrary to the
    public interest.[^29] Moreover, Reeves failed to demonstrate lack of
    an alternative for obtaining additional capacity for its SMR
    operations (whether by acquiring spectrum through the auction
    process, or by partitioning and/or disaggregation).

8.  We nonetheless note that subsequent to the filing of Reeves's
    Petition, the Commission amended its Rules to allow 800 MHz PLMR
    licensees to assign or transfer spectrum to CMRS licensees for use
    in CMRS operations under certain conditions.[^30] This fact,
    however, does not change our conclusion. First, the new rule is not
    yet in effect.[^31] Also, Section 90.617(e), as amended, imposes
    important restrictions on PLMR licensees seeking to assign spectrum
    for CMRS use in order to avoid depletion of PLMRS frequencies and to
    prevent interference to 800 MHz public safety licensees.[^32] For
    example, a licensee that transfers or assigns its license to a CMRS
    operator is precluded from applying for 800 MHz PLMR spectrum in the
    same area for one year.[^33] In addition, the CMRS operator must
    notify neighboring 800 MHz public safety licensees and commit to
    avoiding harmful interference to such licensees.[^34] The record
    before us does not establish whether Reeves would satisfy these
    requirements.[^35]

9.  Finally, we believe that Reeves's contention that there may be an
    issue of retroactive application of the Commission's Rules because
    at the time of the initial license grant the frequency at issue was
    available to both commercial and non-commercial services is without
    merit.[^36] As noted above, the rules prohibiting inter-category
    sharing of private channels by SMR licensees were adopted in 1995,
    prior to the filing of Reeves's application on December 15, 1998.

# conclusion

10. For the reasons stated herein, we deny Reeves's Petition requesting
    reconsideration of a denial of a waiver of Section 90.617(c) of the
    Commission's Rules. We also reiterate that the Branch's decision was
    correctly made in light of the rules and policies in effect at the
    time Reeves's application and waiver request were filed. While the
    Commission has since reexamined numerous licensing issues regarding
    PLMRS spectrum operations similar to the one raised by Reeves, we
    believe that it would be inappropriate to grant the Petition,
    particularly given that the record is devoid of a showing that
    Reeves meets the important limitations adopted as part of the *BBA
    R&O* rule changes.

# ordering clauses

11. 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 1.106, 1.925 and 90.617(c) of the Commission's
    Rules, 47 C.F.R. §§ 1.106, 1.925, and 90.617(c), the petition for
    reconsideration filed by Reeves Realty, Inc. on January 3, 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]: Reeves Realty, Inc. Petition for Reconsideration (filed Jan. 3,
    2000) (Petition).

[^2]: *See* Letter from Mary Shultz, Chief, Licensing and Technical
    Analysis Branch, Public Safety and Private Wireless Division to
    Audrey P. Rasmussen of O'Connor & Hannon, LLP, dated Dec. 14, 1999
    (Branch Letter).

[^3]: 47 C.F.R. § 90.617(c).

[^4]: *See* Petition at 2. Reeves filed its application to modify
    WPBE376 on December 15, 1998. Application of Reeves Realty, Inc.
    (FCC File No. 118612) (Application).

[^5]: 47 C.F.R. § 90.617(c).

[^6]: *See* Nextel Communications, Inc., *Order*, 14 FCC Rcd 11,678 (WTB
    1999) (*Nextel*).

[^7]: Branch Letter at 1.

[^8]: 47 C.F.R. §§ 90.615(a), 90.621(e) (1994).

[^9]: Inter-Category Sharing of Private Mobile Radio Frequencies in the
    806/821/851-866 MHz Bands, *Order*, 10 FCC Rcd 7350 (WTB 1995).

[^10]: *Id*. at 7351-53 ¶ 8.

[^11]: 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 Rulemaking*, PR Docket No. 93-144, 11 FCC Rcd
    1463, 1536-37 ¶¶ 138-142 (1995); *see* 47 C.F.R. § 90.621(e)(1)
    (1996).

[^12]: Petition at 3.

[^13]: *Id*.

[^14]: *Id*.

[^15]: *Id*. at 4.

[^16]: *Id*. at 5.

[^17]: *Id*.

[^18]: *Id*.

[^19]: *Id*. at 3. In support of this proposition, Reeves cites to
    "[Report and Order]{.underline}, 13 FCC Rcd 21017, 21057 (1998)."
    There is no case, however, beginning at 13 FCC Rcd 21017.
    Additionally, the discussion at page 21057 of 13 FCC Rcd (the *ULS
    Report and Order*) deals with what modifications the Commission will
    define as "major" and "minor" for the wireless services. In fact,
    the *ULS Report and Order* specifically defines as major any
    modification that adds a frequency or requires frequency
    coordination \-- both of which are present in this case. *See*
    Biennial Regulatory Review \-- Amendment of Parts 0, 1, 13, 22, 24,
    26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to
    Facilitate the Development and Use of the Universal Licensing System
    in the Wireless Telecommunications Services, *Report and Order*, WT
    Docket No. 98-20, 13 FCC Rcd 21027, 21057 ¶¶ 61-63 (1998).

[^20]: Petition at 1; Application.

[^21]: 47 C.F.R. § 1.929(5), (6). Applications requiring frequency
    coordination or requesting a frequency for which the applicant is
    not currently authorized are classified as major modifications.

[^22]: 47 C.F.R. § 1.947(a).

[^23]: 47 C.F.R.§§ 1.925(b)(3)(i), (ii).

[^24]: *Nextel*, 14 FCC Rcd at 11,690 ¶ 27.

[^25]: Petition at 4.

[^26]: *Nextel*, 14 FCC Rcd at 11,690-91 ¶ 29.

[^27]: *Id*. at 11,690 ¶ 27.

[^28]: Petition at 5.

[^29]: 47 C.F.R. 1.925(b)(3)(ii).

[^30]: Implementation of Sections 309(j) and 337 of the Communications
    Act of 1934 as Amended, *Report and Order and Further Notice of
    Proposed Rule Making*, WT Docket No. 99-87, FCC 00-403, ¶ 110
    (released Nov. 20, 2000) (*BBA R&O*).

[^31]: *See* 66 Fed. Reg. 33, 33 (2001).

[^32]: *BBA R&O*, ¶¶ 114-118.

[^33]: *Id*. ¶ 114. In addition, with respect to licenses the initial
    application for which was filed on or after the date the *BBA R&O*
    was adopted, such transfers or assignments may not be requested
    until five years after the date of the initial license grant. *Id*.
    ¶¶ 115-16.

[^34]: *Id*. ¶ 118.

[^35]: If Reeves believes that the new rule allows for the type of
    assignment Reeves desires, then it should reapply and make the
    requisite showings.

[^36]: Petition at 5-6.