Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) FLORENCE CELLULAR TELEPHONE ) FCC File No. 9501585 COMPANY, INC. ) ) Fixed Microwave Radio Service ) Applications for Station WMN621 ) Rogersville, Alabama ) ORDER ON RECONSIDERATION Adopted: June 3, 1999 Released: June 4, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On November 29, 1995, Florence Cellular Telephone Company, Inc. (Florence), through GTE Mobilnet, requested that the Private Wireless Division (now the Public Safety and Private Wireless Division) of the Wireless Telecommunications Bureau (Bureau) reconsider the imposition of a secondary status condition on the authorization for Station WMN621. Florence operates a point-to-point fixed microwave service (FMS) network in the 2 GHz band in Alabama. For the reasons set forth herein, we grant the request. II. BACKGROUND 2. On January 16, 1992, the Commission proposed to reallocate portions of the 2 GHz band from fixed microwave service to emerging telecommunications technology services, including personal communication services (PCS). The Commission stated that it intended to reaccommodate the FMS licensees in a manner that would be most advantageous for the incumbent users, least disruptive to the public and most conducive to the introduction of new services. Accordingly, first, to preserve the availability of the existing vacant 2 GHz spectrum, the Commission proposed that all new facilities in the 2 GHz band be licensed on a secondary basis. Second, rather than immediately clearing the 2 GHz band of the incumbent FMS users, the Commission proposed that the incumbents be permitted to continue to occupy the band on a co-primary basis with the new PCS licensees for a significant length of time, by the end of which the incumbents were to relocate to another portion of spectrum. The Commission also proposed to provide the PCS licensees with the option of requiring the FMS incumbents to relocate sooner and paying the additional costs caused by the earlier relocation. The practical effect of the Commission's proposal was that incumbent FMS licensees that were authorized on a primary basis would have the costs of relocating to other bands paid for by the new PCS licensees if the PCS licensees required them to relocate. On the other hand, FMS licensees that were authorized on a secondary basis would be treated differently. 3. On May 14, 1992, the Microwave Branch, Licensing Division of the former Private Radio Bureau (Microwave Branch) issued a Public Notice stating that while new facilities in the 2 GHz band would be given secondary status, secondary status would not be accorded to stations making certain minor or technical modifications of facilities licensed prior to January 16, 1992. In a First Report and Order and Third Notice of Proposed Rule Making in ET Docket No. 92-9, the Commission affirmed this policy. As a result, existing 2 GHz facilities could make certain modifications and minor extensions and retain primary status, but major extensions or expansions would be given secondary status unless a special showing of need was made to justify primary status. 4. On February 2, 1995, Florence filed a modification application for Stations WMN621, WLR354, WLR355 and WLR356. With regard to Station WMN621, Florence sought to change the location of its receive station and increase the receive-only antenna structure height. Effective March 27, 1995, the Microwave Branch issued a modified license for Station WMN621 that contained a secondary status condition. Prior to this time, Station WMN621 had been authorized to operate on a primary basi 5. On November 29, 1995, Florence requested reconsideration of the imposition of the secondary status condition on Station WMN621 and re-issuance of the license on a primary basis. Florence stated that in accordance with the rules then in effect, facilities licensed before January 16, 1992 were permitted to make modifications and retain their primary status. Florence stated that its facility was licensed prior to January 16, 1992, and, therefore, that it should be permitted to retain primary status. III. DISCUSSION 6. Florence's modified license was issued with a secondary status condition on March 27, 1995. Florence did not file its Petition, however, until November 29, 1995. Ordinarily, licensees have only thirty days to seek reconsideration of a condition placed on their licenses. But as the Division recently held in Contel Cellular of Nashville, Inc., in the case of the secondary status conditions placed on 2 GHz FMS licenses, the language used did not provide sufficient notice to the affected licensees that their licenses were subject to a condition. Accordingly, for the reasons explained in Contel Cellular of Nashville, Inc., Florence's request is properly considered timely and addressed on its merits. 7. Under the rules in effect at the time Florence applied for a modification of its station license, facilities licensed before January 16, 1992, were permitted to make minor modifications and retain their primary status. In its application, Florence sought to change the location of its receive station and increase the receive-only antenna structure height. These changes are minor modifications under the rules as then in effect, and, therefore, Florence's facility should have retained primary status. Accordingly, we will grant Florence's request for reconsideration and re-issue the license for Station WMN621 with primary status. IV. ORDERING CLAUSES 8. ACCORDINGLY, IT IS ORDERED that pursuant to Sections 4(i), 303(r) and 405 of the Communications Act of 1934, 47 U.S.C.  154(i), 303(r) and 405, and Sections 1.106 and 101.69 of the Commission's Rules, 47 C.F.R.  1.106 and 101.69, the Petition for Reconsideration of Florence Cellular Telephone Company, Inc. IS GRANTED and the license will be re-issued with primary status. 9. 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