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Before the
               Federal Communications Commission
                     Washington, D.C. 20554



In re Application of

REEVES REALTY, INC.

Request for Waiver of 47 C.F.R  90.617(c)


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FCC File No. D118612


                    ORDER ON RECONSIDERATION

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

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

                      I.Introduction
1.On January 3, 2000, Reeves Realty, Inc. (Reeves) filed a petition seeking reconsideration of
the December 14, 1999, action 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 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.
                       II.background
3.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.  A waiver was required because Section 90.617(c) prohibited the use
of Business Radio Category channels in SMR systems.  In its decision, the Branch, relying on a recent
Order, 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.
4.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.  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.  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. 
In December of 1995, the Commission eliminated inter-category sharing for SMR entities.
5.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.  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; (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; (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; (4) the waiver request is
consistent with the FCC's long term policy of promoting licensee flexibility to respond to market
demands; (5) grant of the waiver would increase efficiency of operation; 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.
                       VI.discussion
7.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.  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). 
Section 1.929 of the Commission's Rules is clear that such requests are considered "major," rather than
minor modifications.  Moreover, Section 1.947 of the Commission's Rules states that major
modifications "require prior Commission approval."  Consequently, the instant application is not pro
            forma and requires Commission approval.
8.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.
9.     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." 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.  This same argument was
made in Nextel.  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.  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, 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. 
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).
10.    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.  This fact, however, does not change our conclusion. 
First, the new rule is not yet in effect.  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.  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.  In addition, the CMRS operator must notify neighboring 800 MHz
public safety licensees and commit to avoiding harmful interference to such licensees.  The record before
us does not establish whether Reeves would satisfy these requirements.
11.    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.  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.
                      XII.conclusion
13.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.
                   XIV.ordering clauses
15.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.
16.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