Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Applications of ) ) NEW MEXICO RSA 6-I PARTNERSHIP ) FCC File Nos. 9504047, 9504048 ) in the Point-to-Point Microwave Radio Service) to Modify Licenses for ) Station WLV571, Orogrande, New Mexico and) Station WLV575, Alamogordo, New Mexico ) ORDER ON RECONSIDERATION Adopted: July 13, 1999 Released: July 14, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. The New Mexico RSA 6-I Partnership (New Mexico RSA) requests removal of a secondary status condition placed on the licenses for two of its fixed microwave service (FMS) stations that operate in the 2 GHz band. New Mexico RSA provides cellular mobile telephone service in New Mexico and uses FMS stations in conjunction with providing that service. For the reasons set forth below, we grant New Mexico RSA's requests. II. BACKGROUND 2. On January 16, 1992, the Commission issued a Notice of Proposed Rule Making (ET NPRM) proposing to reallocate portions of the 2 GHz band from FMS to emerging technology (ET) services, including the personal communications services (PCS). Part of that plan involves discouraging the construction of new FMS facilities in the 2 GHz bands while at the same time allowing the use of the spectrum until the ET licensees are in a position to use it. Accordingly, 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 ET NPRM. 3. On May 14, 1992, the Microwave Branch, Licensing Division of the former Private Radio Bureau issued a Public Notice stating that while new facilities would be licensed on a secondary basis, secondary status would not be accorded to stations that made certain modifications of facilities licensed prior to January 16, 1992. Secondary status also would not be accorded in 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 these cases, the station would receive primary status. In a First Report and Order and Third Notice of Proposed Rule Making, released October 16, 1992, the Commission affirmed this 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 result in a station receiving secondary status unless a special showing of need was made to justify primary status. 4. On April 14, 1995, New Mexico RSA filed applications to modify the licenses for Station WLV571 and WLV575. New Mexico RSA proposed to change the transmitters and emission designators at each station, and to add a path in the 6 GHz band from Station WLV571 to Station WMS269. New Mexico RSA's modified licenses for Stations WLV571 and WLV575 were granted and the licenses were printed on May 24, 1995. The two licenses contained the following language: This authorization for any facilities authorized for frequency between 1850 to 2200 MHz is subject to the rules, procedures, and policies imposed by the Commission in ET Docket No. 92-9, including the operation of a facility at 1850 to 2200 MHz on a secondary, non- interference basis. 5. By letters dated January 24, 1996, New Mexico RSA requested the removal of the above quoted condition from the licenses for Stations WLV571 and WLV575. New Mexico RSA stated that the condition should not have been applied because under Section 21.701(a) of the Commission's Rules, as then in effect, facilities licensed before January 16, 1992, were permitted to make modifications and retain primary status. III. DISCUSSION 6. As we decided in Contel Cellular of Nashville, Inc., the purpose of the language quoted above in Paragraph 4 was to place a condition on New Mexico RSA's licenses that they were to be operated on a secondary basis. New Mexico RSA's licenses for Stations WLV571 and WLV575 were printed with the condition on May 24, 1995. New Mexico RSA did not send its letters requesting removal of the condition, however, until January 24, 1996, eight months later. Ordinarily, licensees have only thirty days to seek reconsideration of a condition placed on their licenses. But as we determined in Contel, 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, New Mexico RSA's requests are properly considered timely and will be addressed on their merits. 7. We find that the licenses should have been granted primary status and issued without the condition. Under the rules in effect at the time New Mexico RSA's licenses were granted, licensees were permitted to make modifications (such as changes in authorized emission) to facilities licensed before January 16, 1992, and have those facilities retain primary status. Licensees of such facilities also could add frequencies not in the 2 GHz band and retain primary status. Both Station WLV571 and Station WLV575 were initially licensed prior to 1992. In its modification applications, New Mexico RSA sought to change transmitters and emission designators for the stations, and to add a path from Station WLV571 in the 6 GHz band. These changes were acceptable modifications not affecting the subject station's primary status under the Commission's Rules as then in effect; therefore, Stations WLV571 and WLV575 should have retained primary status. Accordingly, we will grant New Mexico RSA's requests and re-issue the licenses for Stations WLV571 and WLV575 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 letters of New Mexico RSA 6-I Partnership requesting correction of the licenses for Station WLV571 and Station WLV575, dated January 24, 1996, are GRANTED and the licenses 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