******************************************************** 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 ) ) ST. JOHNS COUNTY ) ) FCC File No. 727989 Petition for Reconsideration of Grant of ) Secondary Status and Reinstatement of ) Primary Status for WNEW792 - Lewis ) Speedway, Florida ) ORDER ON RECONSIDERATION Adopted: July 19, 1999 Released: July 20, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On November 25, 1996, St. Johns County, Florida (St. Johns) requested that the Public Safety and Private Wireless Division (Division) of the Wireless Telecommunications Bureau (Bureau) reconsider the imposition of a secondary status condition on the license for the above captioned fixed microwave service (FMS) station operating in the 2 GHz band. For the reasons set forth below, we grant the request. II. BACKGROUND 2. On January 16, 1992, the Commission proposed to reallocate portions of the 2 GHz band from FMS to emerging telecommunications technology services (ET), including personal communications services. 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, the Commission proposed that all new facilities in the 2 GHz band be licensed on a secondary basis to preserve the availability of the existing vacant 2 GHz spectrum. 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 ET 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 ET licensees with the option of requiring the FMS incumbents to relocate sooner if the ET licensee paid for 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 ET licensees if the ET licensees required them to relocate. On the other hand, FMS licensees that were authorized on a secondary basis would be treated differently. 3. On April 25, 1996, the Commission adopted new regulations regarding the licensing of FMS systems in the 2 GHz band. Under the new regulations, applications for new stations, all major modifications, and all extensions to existing 2 GHz microwave systems will be licensed on a secondary basis. These rules provide that primary status will be granted for a limited number of technical changes. All other minor modifications will be permitted on a secondary basis unless (a) the FMS licensee affirmatively justifies primary status, and (b) the FMS licensee establishes that the modification will not add to the relocation costs of PCS licensees. 4. On July 8, 1996, St. Johns filed an application seeking authorization to relocate Station WNEW792 to an adjacent building located 300 feet away. In addition, St. Johns requested a change in antenna azimuth. On October 15, 1996, the Bureau's Licensing Division, Microwave Branch issued a modified license for Station WNEW792. The license contained the following language: This authorization is subject to the rules, procedures, and policies as established by the Commission in ET Docket No. 92-9, which includes operation on a secondary, non- interference basis. Only frequency paths 2138.0 & 2141.2 are subject to this condition. On November 25, 1996, St. Johns requested reconsideration of the imposition of the secondary status condition on Station WNEW792 and re-issuance of the license on a primary basis. III. DISCUSSION 5. 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 St. Johns' license that it was to be operated on a secondary basis. Public notice of the grant of St. Johns' modified license was released on October 22, 1996. St. Johns did not file its Petition, however, until November 25, 1996, thirty-four days later. Ordinarily, licensees have only thirty days to seek reconsideration of a condition placed on their licenses. But as the Division decided 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 secondary status condition. Accordingly, for the reasons explained in Contel Cellular of Nashville, Inc., St. Johns Petition is properly considered timely and will be addressed on its merits. 6. St. Johns' modification application sought authorization for two types of changes: (a) changes in azimuth of approximately 0.8 degrees and 0.1 degrees, and (b) a change in location of approximately three degrees. Though these changes are minor modifications, they nonetheless are changes that will result in the station receiving secondary status unless St. Johns affirmatively justifies primary status and establishes that the modification will not add to the relocation costs of ET licensees. 7. In its original request for primary status, St. Johns stated that it should retain primary status for two main reasons: (a) because it is a public safety user, and (b) because it was merely relocating an existing system to a new Emergency Operations Center, which involved moving the tower approximately 300 feet to an adjacent building on the same county complex. St. Johns also stated that it was not adding or upgrading any equipment that would increase the potential relocation costs for a new licensee. In its Petition, St. Johns reiterates that maintaining the primary licensing status is critical to providing public safety services to the community. We find that under these circumstances, St. Johns has demonstrated its need for primary status. We also find, based on the information before us, that granting primary status to Station WNEW792 will not add to the relocation costs of future ET licensees. Accordingly, we will grant St. Johns' request for reconsideration and re-issue the license of Station WNEW792 with primary status. IV. ORDERING CLAUSE 8. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and Sections 1.106 and 101.69 of the Commission's Rules, 47 C.F.R.  1.106, 101.69, the petition for reconsideration filed by St. Johns on November 25, 1996, 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