******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) CONTEL CELLULAR OF NASHVILLE, INC.) ) Request for Reconsideration of Grant of ) File Nos. 9505700, 9505701 Secondary Status and Reinstatement of) Primary Status for WLN586 - Spring Hill, ) and WLN587 - Bobcat Mountain ) ) ) ) ) ORDER ON RECONSIDERATION Adopted: April 8, 1999 Released: April 9, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION AND EXECUTIVE SUMMARY 1. On November 1, 1995, Contel Cellular of Nashville, Inc. (Contel) requested that the Commission reconsider its grant of secondary status to Stations WLN586 and WLN587. Based on the record in this proceeding, we conclude that Contel's request should be granted. II. BACKGROUND 2. Contel holds licenses for fixed microwave service (FMS) facilities in the Nashville-Davidson metropolitan statistical area. These facilities serve as part of Contel's cellular radio telephone service network in the State of Tennessee. Previously, Contel was permitted to operate these facilities on a primary basis. 3. On January 16, 1992, the Commission issued a Notice of Proposed Rule Making in ET Docket No. 92-9 proposing to reallocate portions of the 2 GHz band from fixed microwave service to emerging technology services, including the personal communications services (PCS). As part of that plan, the Commission proposed that all new facilities in the 2 GHz band be licensed on a secondary basis only, as of the date of the Redevelopment Notice. 4. On May 14, 1992, the Microwave Branch of the former Private Radio Bureau issued a Public Notice stating that while new 2 GHz facilities would be licensed on a secondary basis, secondary status would not be applied to certain minor or technical modifications of facilities licensed prior to January 16, 1992. For example, it indicated that secondary status also would not be applied to situations where additional links would be required to complete a communications network or where new facilities and/or frequencies were operationally connected to a network system licensed prior to January 16, 1992, when the applicant made a valid showing of its need for the new facilities. In a First Report and Order and Third Notice of Proposed Rule Making, released October 16, 1992, the Commission affirmed the licensing approach. The Commission stated that existing 2 GHz facilities could make certain modifications and minor extensions and retain primary status, but that major extensions or expansions would be given secondary status unless a special showing of need was made to justify primary status. 5. On May 31, 1995, Contel filed applications to modify the licenses for Stations WLN586 and WLN587 to replace the transmitters for two microwave paths it was operating under those call signs. On July 24, 1995, the Licensing and Technical Analysis Division (Division) granted modified licenses for Stations WLN586 and WLN587 on a secondary, noninterference basis. The authorizations contained the following language: This authorization for any facilities authorized for frequency [sic] between 1850 and 2200 MHz is subject to the rules, procedures and policies imposed by the Commission in ET Docket 92-9, including operation of a facility at 1850 to 2200 MHz on a secondary, noninterference basis. 6. On November 1, 1995, Contel filed its petition seeking reconsideration of the July 24, 1995 grant. In its petition, Contel states that it was entitled to retain primary status because the facilities were licensed prior to January 16, 1992 and therefore the 2 GHz conditional secondary status was not applicable. III. DISCUSSION 7. For the following reasons, we agree with Contel that the modifications of its above referenced licenses should have been granted with primary status. We are therefore granting Contel's request that we reconsider the July 24, 1995 action to the extent indicated below. 8. Timeliness. Section 405 of the Communications Act of 1934 (Communications Act), requires that petitions for reconsideration be filed within 30 days of the date of public notice of the subject Commission action. In accordance with this statutory requirement, former Section 21.32(d) of the Commission's Rules, which was in place at the time of the grant of the subject application, required that petitions for reconsideration challenging the conditional grant of a license be filed "within 30 days of the letter or order giving reasons for the partial or conditional grant." Under Section 1.4(b)(5) of the Commission's Rules, 47 C.F.R.  1.4(b)(5), the thirty-day reconsideration period starts the day after the date on which public notice of the action is given. In the present case, public notice of the grant of the license was given on July 19, 1995. Thus, the last day for filing a petition for reconsideration was August 18, 1995. Contel made its request that the Commission reconsider the grant of its license with secondary status on November 1, 1995, over two months after the deadline. Because the requirement that petitions for reconsideration be filed within thirty days of the public notice date is prescribed by the Communications Act, the Commission does not have the general authority to waive or extend the filing deadline. However, the Commission may be required entertain a petition for reconsideration filed beyond the thirty-day filing deadline where there are "extraordinary circumstances," such as a failure on the part of the Commission to provide proper notice of its actions. We believe that extraordinary circumstances exist in the case at hand which warrant our considering this petition on its merits. 9. Under the Commission's Rules, when the Commission grants an application subject to a condition "other than those normally applied to applications of the same type, it will inform the applicant of the reasons therefor." This language embodies the requirements set out in the Administrative Procedures Act (APA). Under the APA, when a federal agency, such as the Commission, grants an application with a condition, other than one which the applicant knew or should have know is typically placed on a license, the agency is required to provide the applicant with notice and a brief explanation of the reason for the conditional grant. The federal courts have explained that there are at least two fundamental purposes behind the notice and explanation requirements set out in the APA. First, the notice required by the APA must inform the interested person of the grounds for the Commission's decision so that they may plan a course of action. Second, the notice must be sufficiently detailed so as to allow reviewing courts to appraise the Commission's decision. 10. We find that the language of the condition on Contel's licenses was insufficient to fulfill the purposes of notice under the APA. In this connection, we conclude that the language contained on the modified authorization for Stations WLN586 and WLN587 did not adequately inform Contel that its license was secondary so that it could act accordingly. The language of the notice did not clearly state that Contel's license had been issued with secondary status. Instead, it made an oblique reference to a range of frequencies which are "subject" to all matters contained within ET Docket 92-9 and referenced the fact that ET Docket 92-9 "include[s] operation of a facility at 1850 to 2200 MHz on a secondary, noninterference basis." 11. Taken as a whole, we believe that this language may have led to uncertainty. In this connection, we note that the condition does not expressly state that it is referring to the specific frequencies that are the subject of the authorization. Moreover, the exact meaning of being subject to the "policies imposed by the Commission in ET Docket 92-9" is a matter that could be open to various interpretations by an applicant in this situation. In fact, we believe that it does not follow a fortiori that licenses containing this language are secondary. Thus, we find that this condition contained insufficient information to alert Contel that its license was not simply subject to the ongoing docketed proceeding but was in fact issued on a secondary basis. Because Contel could not reasonably be expected to ascertain this information from the notice provided, we find that it was not given adequate notice as required by the APA with respect to determining whether to seek reconsideration. 12. The notice also fails because it did not provide information sufficient to allow a reviewing court to appraise the reasons for the Commission's decision. The notice does not state unequivocally what decision has been made, i.e. "this license is granted on a secondary basis." Even if a court were to determine that the license had been granted on a secondary basis, there is no explanation as to why the grant was made on a secondary basis. Further, no additional information was sent to Contel which would have alerted it to the fact that its license had been granted with secondary status. We therefore conclude that the notice provided by the Commission on the face of Contel's licenses was insufficient under the APA. 13. In sum, the only notice provided to the applicant that its license had been issued with a condition is that language contained on the face of the license itself. Because we conclude that adequate notice of the change in licensing status was not given to Contel, we may entertain Contel's petition for reconsideration on the merits even though it was filed after the thirty-day period set forth in Section 405 of the Communication Act and in Commission Rules, 47 C.F.R.  21.32(d). 14. Secondary Grant. We turn now to the merits of Contel's petition. In its applications to modify its licenses, Contel states that it replaced the transmitters of its FMS stations. The Commission's relocation policy in place at that time Contel filed its applications stated that 2 GHz facilities that were licensed prior to January 16, 1992, could make certain modifications and minor extensions and retain primary status. Contel's transmitters are considered part of its facilities for purpose of our analysis under the relocation policy. These facilities were licensed prior to January 16, 1992. The replacement of the transmitters is a modification of the facilities, and not a major extension or expansion of those facilities. Therefore, had the Commission's then current relocation rules and policies been properly applied at the time of the grant, Contel's licenses should have been modified and reissued with primary status. Instead, they were issued with secondary status. We therefore find that the rules were not properly applied in Contel's case and grant its request for reconsideration and reinstate primary status to these facilities. IV. CONCLUSION 15. For the reasons set forth above, we grant Contel's request for reconsideration of the grant of its licenses for Stations WLN586 and WLN587 on a secondary, non-interference basis. Although Contel's petition was not filed within 30 days of this grant, we find that there were exceptional circumstances for this delay because there was inadequate notice that the license had in fact been granted with secondary status we therefore have considered Contel's reconsideration request on the merits. Upon reviewing Contel's applications for modification, we believe that the secondary grant was made contrary to then existing Commission policy and rules. V. ORDERING CLAUSES 16. ACCORDINGLY, IT IS ORDERED that pursuant to Sections 4(i) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 303(r), and Section 101.69 of the Commission's Rules, 47 C.F.R.  101.69 (1997), the petition for reconsideration of Contel Cellular of Nashville, Inc., IS GRANTED and the licenses will be re-issued with primary status. 17. 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