**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

COUNTRY COUSINS, INC. )

) File No. D081936

Waiver of Section 90.613 of the )

Commission\'s Rules to Permit Mobile Use )

of Frequencies in the 851-866 MHz Band )

**ORDER**

**Adopted:** November 16, 1999 **Released:** November 16, 1999

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

1\. *Introduction*. On June 11, 1998, Country Cousins, Inc. (Country
Cousins) requested reconsideration[^1] of the May 28, 1998, dismissal by
the Licensing and Technical Analysis Branch (Branch), Public Safety and
Private Wireless Division, of its application and request for waiver to
permit mobile-only operation on the frequency 864.6375 MHz. [^2] For the
reasons discussed below, we affirm the Branch's action, and deny the
request for reconsideration.

2\. *Background*. On May 23, 1997, Country Cousins filed an application
requesting to utilize the frequencies 819/864.6375 MHz in the 800 MHz
conventional Business Radio Service (GB) for itinerant mobile-only
operations throughout the state of Washington.[^3] On September 26,
1997, the Branch returned the application, stating that mobile-only
operation is not permitted on 864.6375 MHz.[^4] On

October 17, 1997, Country Cousins resubmitted the application, and on
January 9, 1998, the application was returned for the same reason.[^5]

3\. On February 10, 1998, Country Cousins resubmitted the application
along with a request for waiver of the Rules to allow simplex,
mobile-only operation on the high side of the frequency pair, 864.6375
MHz. [^6] The waiver request stated that a waiver was needed because
their existing radios cannot be programmed to operate on 819.6375 MHz,
the low side of the frequency pair.[^7] Additionally, the waiver request
alleged that several users in the area had been previously authorized to
use 864.6375 MHz for simplex, mobile-only operation.[^8] On March 5,
1998, the Branch asked Country Cousins for more information to justify
its request for waiver and requested a response within thirty days.[^9]
When Country Cousins did not respond within this time frame, the
application was deemed defective and was dismissed on May 28, 1998,[^10]
pursuant to Section 1.958 of the Rules.[^11]

4\. On June 11, 1998, Country Cousins requested reconsideration of the
dismissal claiming that it had been unaware of the March 5, 1998, letter
because the person handling this issue had retired in March 1998.[^12]
On July 22, 1998, a copy of the March 5, 1998, letter was sent, via
facsimile, to Country Cousins. On July 27, 1998, Country Cousins
responded to the March 5, 1998, letter, stating that it requested the
frequency pair 819/864.6375 MHz because \"that was what the F.C.C. had
recommended and issued to other companies for 'itinerant' use above Line
A.\"[^13]

5\. *Discussion*. Section 90.613 of the Rules designates the frequency
864.6375 MHz as a base station frequency. The corresponding mobile
frequency is 819.6375 MHz. While Section 90.621(a)(1)(ii) of the Rules
permits a mobile station to transmit on any frequency assigned to its
base station, [^14] Country Cousins indicates that its operations will
be mobile-to-mobile only.[^15]

6\. Pursuant to Section 1.925(b)(3) of the Rules, we may grant a request
for waiver of the Rules if the applicant shows either (a) that the
underlying purpose of the rule 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 (b) in view of
unique or unusual circumstances, application of the rule would be
inequitable, unduly burdensome or contrary to the public interest, or
the applicant has no reasonable alternative. [^16] Country Cousins has
made no argument or showing that the underlying purpose of Section
90.613 would be frustrated by its application to this case. Moreover, we
conclude that Country Cousins has alternative solutions in that it can
utilize frequencies in either the 150 MHz or 450 MHz bands that are
allocated for mobile-to-mobile operations to establish communications
when outside, or within dead zones, of its service provider's service
area. That this alternative could cause Country Cousins to incur
additional equipment costs is not, by itself, sufficient grounds for
granting a waiver under the circumstances presented. [^17]

7\. IT IS ORDERED, pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405 and
Section 1.106 of the Commission\'s Rules, 47 C.F.R.

§ 1.106, that the request for reconsideration of the Notice of
Application Dismissal, filed by Country Cousins, Inc. on June 11, 1998,
is DENIED.

8\. 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]: ^?^Letter from Sandy Larson, Country Cousins, Inc., to Land Mobile
    Branch, Federal Communications Commission (dated June 11, 1998).

[^2]: ^    ?^Notice of Application Dismissal, File No. D081936 (May 28,
    1998).

[^3]: ^?^Country Cousins Application for Mobile Radio Service
    Authorization, File No. D081936 (filed May 23, 1997).

[^4]: ^    ?^47 C.F.R. § 90.613 designates 864.6375 MHz for base station
    operation. Mobile operation is authorized on the lower frequency of
    the pair, 819.6375 MHz.

[^5]: ^?^Application Return Notice, File No. D081936 to Country Cousins,
    Inc. (January 9, 1998).

[^6]: ^    ?^Letter from Country Cousins, Inc., to the Federal
    Communications Commission (dated February 5, 1998).

[^7]: ^?^*Id*.

[^8]: ^?^*Id.*

[^9]: ^    ?^Letter from Michael J. Regiec, Public Safety and Private
    Wireless Division, to Michael L. Jensen, Country Cousins, Inc.
    (March 5, 1998).

[^10]: ^    ?^Notice of Application Dismissal, File Number D081936 to
    Country Cousins, Inc. (May 28, 1998).

[^11]: ^?^47 C.F.R. § 1.958.

[^12]: ^?^ Letter from Sandy Larson, Country Cousins, Inc., to Land
    Mobile Branch, Federal Communications Commission (dated June 11,
    1998).

[^13]: ^    ?^Letter to Cheryl A. Black, PWD/Technical Analysis Section,
    from Sandra L. Larson, Business Manager, Country Cousins, Inc.
    (dated July 27, 1998) (Country Cousins Response).

[^14]: ^?^47 C.F.R. § 90.621(a)(1)(ii).

[^15]: ^?^In addition, while Country Cousins originally requested the
    frequency pair 819.864.6375 MHz, it subsequently indicated that it
    sought authorization only for frequency 864.6375 MHz. Country
    Cousins Response at 1.

[^16]: ^?^47 C.F.R. § 1.925(b)(3).

[^17]: ^    ?^Country Cousins contends that other licensees have be
    granted authorizations to use 864.6375 MHz for mobile-only
    operations. Country Cousins specifically cites Wiztronics, Inc.
    (WNMT373) and Cascade Lumber (WPAL492) being authorized for mobile
    operation on 864.6375 MHz in the State of Washington. Country
    Cousins Response at 1. We note as an initial matter that such grants
    are now final actions and not subject to reconsideration here. We
    also note that even if we were to learn of licensing actions which
    were inconsistent with the Commission's Rules or its stated
    policies, the appropriate course of action would be to consider
    whether we should take some action with respect to the affected
    license or licensee rather than to continue misapplication of such
    Commission Rules and/or policy. *See* Nextel Communications, Inc.,
    *Order*, DA 99-1404, (released July 21, 1999), appl. for review
    pending.