DA 96-1406


                                   August 29, 1996


Mr. Mickey Sims
President
Poka Lambro PCS, Inc.
11.5 Miles North of Tahoka on US HWY 87
Tahoka, TX 79373

     RE:  Poka Lambro PCS, Inc. Request for Waiver in Auction No. 11
          
Dear Mr. Sims:

     This is in response to the waiver request filed by Poka Lambro PCS, Inc. ("Poka
Lambro") which was attached as Exhibit E to its short-form application to participate in the D, E,
and F block broadband Personal Communications Services ("PCS") auction.  Poka Lambro
requests a waiver of the Commission's Commercial Mobile Radio Service ("CMRS") spectrum
cap limitation in Section 20.6 of the Commission's rules to allow it to bid for the Lubbock,
Texas, Basic Trading Area ("BTA") in the broadband D, E, and F block auction.  For the reasons
stated below, we deny Poka Lambro's request.

     Poka Lambro, a winning bidder for a broadband PCS C block license in Lubbock, Texas
seeks a waiver of the 45 MHz spectrum cap because of its cellular affiliates which provide
service to portions of the Lubbock BTA.  Poka Lambro has filed a similar waiver request in
connection with its long-form application for the C block license.  The decision on this waiver
request has no affect on Poka Lambro's pending waiver request for the C block license.

     A licensee in broadband PCS, cellular or SMR services regulated as CMRS is limited to
an attributable interest in no more than 45 MHz of licensed broadband, PCS, cellular, and
Specialized Mobile Radio ("SMR") services regulated as CMRS in any geographical area.  47
C.F.R.  20.6(a).  If the geographic area covered by an affiliated cellular service provider
overlaps at least 10 percent of the PCS licensed service area, that cellular license is attributable
for the purposes of spectrum aggregation.  47 C.F.R.  20.6(c).  

      To receive a waiver of a licensing rule for broadband PCS, a waiver request must be
made which demonstrates either "that the underlying purpose of the rule will not be served, or
would be frustrated, by its application in a particular case, and that a grant of the waiver is
otherwise in the public interest;" or "that unique facts and circumstances of a particular case
render application of the rule inequitable, unduly burdensome or otherwise contrary to the public
interest."  47 U.S.C.  24.819(a)(i) and (ii).

     Poka Lambro asserts that a waiver of the spectrum aggregation limit is appropriate
because the extent of its affiliates' overlapping service area is 16 percent of the BTA, a
percentage only slightly larger than the 10 percent threshold for attribution under Section 20.6(c). 
Further, Poka Lambro claims that because its affiliates' cellular service covers only 16 percent of
the population in the Lubbock BTA, and not the major population area, it has no ability to
suppress competition.  Poka Lambro also argues that permitting it, a small business, and its
parent, a rural telephone company, to both operate in the Lubbock BTA will serve the public
interest by allowing it to bring advanced telecommunications to rural areas.

     Poka Lambro does not specify whether it seeks waiver of the attribution rule of Section
20.6(c) or waiver of the spectrum cap for a geographic area prescribed by Section 20.6(a). 
Nonetheless, Poka Lambro fails to offer unique facts that would justify a waiver of either rule
subsection.  Poka Lambro alleges that the overlay between the Lubbock BTA and its affiliates'
cellular service area is "minimally" over 10 percent.  The situation it describes, however, is
specifically contemplated by the rules as one in which divestiture is available.   47 C.F.R. 
20.6(e).  The Commission noted when it reconsidered the 45 MHz spectrum cap that raising the
10 percent overlap restriction or the 45 MHz CMRS spectrum cap might lead to anti-competitive
practices.   Poka Lambro has offered no evidence to the contrary or any evidence supporting its
claim that it and its affiliates will not be able to suppress competition for CMRS services in the
Lubbock BTA.  Thus, a waiver under these circumstances is not justified under Section 24.819.

     For the reasons stated above, Poka Lambro's request IS HEREBY DENIED.  This action
is taken under delegated authority pursuant to Section 0.331 of the Commission's Rules.

                              Sincerely,



                              Kathleen O'Brien Ham
                              Chief, Auctions Division
                              Wireless Telecommunications Bureau