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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                )
                                )
PACIFIC GAS AND ELECTRIC COMPANY ) FCC File Nos. 9504714176 and 9506716960
                                )
Fixed Microwave Radio Service   )
Applications for Station WNTA286, )
Petaluma, California            )
and Station KSR41, Cottonwood, California )


                  MEMORANDUM OPINION AND ORDER


   Adopted:  August 17, 1999            Released:  August 18, 1999  


By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:


                        I.  INTRODUCTION 

     1.  We have before us a petition for reconsideration submitted by Pacific Bell Mobile Services (PacBell
Mobile), a licensee authorized to provide personal communications services (PCS).  PacBell Mobile seeks
reconsideration of an action by the Public Safety and Private Wireless Division (Division) granting Pacific Gas
and Electric Company's (PG&E) request for reconsideration of the imposition of a secondary status condition
on the licenses for Stations WNTA286 and KSR41.  PG&E is a power utility in California supplying natural
gas and electricity to over seven million customers.  As part of its telecommunications network, PG&E operates
a point-to-point fixed microwave service (FMS) network in the 2 GHz band and contends that the network is
integral to its internal utility operations.  PacBell Mobile has a license to operate a PCS network in the 2 GHz
band in the geographic area covered by several of PG&E licenses.  For the reasons set forth below, we deny
PacBell Mobile's petition. 


                         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, including PCS.  The Commission stated that it
intends to reaccommodate the FMS licensees in a manner that is most conducive to the introduction of new
services, most advantageous for the incumbent users, and least disruptive to the public.  Accordingly, the
Commission proposed, first, that in order to preserve availability of the existing vacant 2 GHz spectrum, all
new facilities in the 2 GHz band be licensed on a secondary basis only.  Second, the Commission proposed
that rather than immediately clearing the 2 GHz band of the incumbent FMS users, 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 they were to relocate to another portion of the 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 forced them to relocate.

     3.  On May 14, 1992, the Microwave Branch of the former Private Radio Bureau issued a Public
Notice stating that while new facilities in the 2 GHz band would be given secondary status, secondary status
would not be applied to 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, released October 16, 1992,
the Commission affirmed this approach.  The Commission stated that existing 2 GHz licensees could make
certain modifications (for example, changes in azimuth) 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 retention
of primary status.  

     4.  On February 14, 1995, PG&E filed an application to renew its license for Station WNTA286,
which was scheduled to expire on March 23, 1995.  The credit card authorization for the renewal fee could
not be processed, however, and on March 23, 1995, the license expired.  On March 31, 1995, PG&E
resubmitted its application along with a check for the filing fee.  The Commission reinstated the license for
Station WNTA286 effective July 26, 1995.  The new license contained the following language:  "This
authorization is subject to the rules, procedures, and policies established by the Commission in ET Docket No.
92-9, which includes operation on a secondary, non-interference basis for the frequency path 1895.0."

     5.  Beginning in the spring of 1995, PacBell Mobile and PG&E negotiated the relocation of PG&E's
2 GHz facilities in order to accommodate PacBell Mobile's PCS operations in the 2 GHz band.  While the
licenses for Stations WNTA286 and KSR41 were originally included in the negotiations, they were omitted
when it was learned that the stations' new licenses contained a secondary basis condition.

     6.  On June 15, 1995, PG&E filed an application to modify the license for Station KSR41.  PG&E
proposed to modify the path to remove a passive repeater station that lay 100 feet away; as a result,
transmissions would travel directly from Station KSR41 to the receiving station.  The Commission granted
PG&E a modified license for Station KSR41 effective September 6, 1995.  The modified license contained the
following language:  "This authorization is subject to the rules, procedures, and policies established by the
Commission in ET Docket No. 92-9, which include operation on a secondary, non-interference basis.  Only
frequency path 1895 is subject to this condition."  

     7.  On October 12, 1995, the Commission initiated a new rule making proceeding regarding the 2 GHz
band and stated that while the proceeding was pending, the Commission would process only applications for
minor modifications that would not add to the relocation costs of PCS licensees.  Licenses for a limited list
of technical changes would be granted primary status, but all other modifications would be permitted only on
a secondary basis unless the incumbent made a special showing of need to justify primary status and the
modification did not add to the relocation costs.  The Commission noted that the new list of minor technical
modifications was more limited than the modifications listed in the 1992 Public Notice.

     8.  On February 20, 1996, before the end of the negotiations between PG&E and PacBell Mobile,
PG&E sent the Microwave Branch a letter requesting reconsideration of the assignment of secondary status
to the licenses for Stations WNTA286 and KSR41.  With regard to Station WNTA286, PG&E stated that
it had timely filed its application for license renewal and had sought no modifications to the license.  PG&E
stated that granting primary status would not undermine any of the goals of the Commission as laid out in the
2 GHz rulemaking proceeding and would not add to the cost of relocating PG&E's facilities; it would merely
permit PG&E to remain whole.  With regard to Station KSR41, PG&E stated that the modification was minor
and therefore, in accordance with Commission policy at the time, should not have resulted in a change of the
license to secondary status.  Although by removing the repeater station which lay 100 feet away, the azimuth
of Station KSR41 changed from 180 degrees to 22.5 degrees, PG&E stated that the effective azimuth of the
path remained the same, i.e.,  22.5 degrees.  Moreover, according to PG&E, the station's licensed EIRP
(Equivalent Isotropic Radiated Power) decreased by 2.1 dB, energy over-shoot beyond the passive reflector
was eliminated and the cost of PCS relocation was reduced by $35,000.  PG&E stated that had it not modified
the station, it would have retained primary status and the new PCS licensee would have faced an additional
$35,000 of relocation costs.  PacBell Mobile states that PG&E did not serve it with a copy of PG&E's
reconsideration letter.

     9.  On April 25, 1996, the Commission promulgated new regulations regarding the licensing of FMS
systems in the 2 GHz band which substantially adopted the licensing rules proposed in the NPRM.  On May
20, 1996, the Division granted PG&E's request for reconsideration.  PG&E's two licenses were subsequently
reissued without the secondary status condition.  On July 30, 1996, PacBell Mobile filed its reconsideration
petition regarding the granting of PG&E's reconsideration request and reinstatement of the licenses to primary
status.  PacBell Mobile argues that PG&E's request for reconsideration should have been dismissed as
untimely and that the Commission should have put the request on public notice.  PacBell Mobile also argues
that the change in azimuth for Station KSR41 was not a minor technical change and that the renewal
application for Station WNTA286 was late.  In sum, PacBell Mobile contends that both licenses were
properly given secondary status.

                         III.  DISCUSSION

     10.  Standing.  To file a request for reconsideration, a person must either be a party to the proceeding
or be one whose interests are adversely affected by the action in question, in which case it shall show why it
was not possible to participate in the proceeding earlier.  PacBell Mobile did not file an opposition to PG&E's
reconsideration petition.  Thus, PacBell Mobile's status as a party to this proceeding has not been established
by its prior participation herein.  We find, however, that PacBell Mobile is one whose interests are adversely
affected by the subject Division action.  PacBell Mobile is a PCS licensee whose authorized frequencies overlap
with the frequencies included in the licenses at issue in this proceeding.  As explained above, PacBell Mobile
is entitled to require PG&E to relocate its FMS facilities in order to eliminate interference with PacBell
Mobile's operations.  If PG&E's licenses have co-primary status, PacBell Mobile must pay PG&E's relocation
costs.  If PG&E's licenses have secondary status, however, PG&E must ensure that it does not interfere with
PacBell Mobile's operations, and PacBell Mobile need not pay any relocation costs.  Thus, PacBell Mobile's
interests are adversely affected by the granting of PG&E's request to reinstate primary status to the subject
licenses.  We also find that PacBell Mobile has shown why it did not participate in the proceeding earlier. 
PacBell Mobile states that PG&E did not serve it with a copy of its reconsideration letter, and the we did not
issue a public notice regarding the request.  PacBell Mobile further states that it did not learn of PG&E's
reconsideration request until after it had been granted.  Thus, PacBell Mobile contends that it had no notice
of the proceeding.  Accordingly, we find that PacBell Mobile has demonstrated that it has standing to challenge
the grant of PG&E's reconsideration request.

     11.  Timeliness of PacBell's Reconsideration Petition.  Parties generally have only thirty days to seek
reconsideration of an action taken pursuant to delegated authority.  This deadline is statutory and may not
be waived by the Commission.  In the present case, PG&E's reconsideration petition was granted on May 20,
1996.  Thus, the last day to file a petition for reconsideration was June 19, 1996.  Since PacBell Mobile did
not file its reconsideration petition until July 30, 1996, we would ordinarily be unable to entertain PacBell
Mobile's Petition.  However, the Commission may be required to entertain a petition for reconsideration filed
beyond the thirty-day period where there are "extraordinary circumstances," such as a lack of notice.  We
believe that such extraordinary circumstances exist here.

     12.  As noted above, PacBell Mobile did not have notice of PG&E's filing of its reconsideration
request.  We find that PacBell Mobile also did not have notice of the Division's decision until it received a copy
of that decision from PG&E on July 9, 1996, after the thirty-day period for filing reconsideration requests had
expired.  Under these unusual circumstances, we find that PacBell Mobile first received notice of the grant of
PG&E's Reconsideration request when it received a copy of that grant on July 9, 1996, because the FCC had
provided notice of such action only to the identified parties to the proceeding -- namely, PG&E.  We note that
PacBell Mobile filed its Petition soon thereafter, on July 30, 1996, which was within thirty days of its learning
of the Division's earlier action.  Accordingly, we conclude that we may entertain PacBell Mobile's Petition even
though it was filed after the thirty-day period set forth in Section 405 of the Communications Act.

     13.  On September 3, 1996, PG&E filed a motion to file a late response to PacBell Mobile's Petition. 
PacBell Mobile did not oppose the motion.  On September 26, 1996, PacBell Mobile filed a motion to file a
late-filed reply to PG&E's response, which PG&E did not oppose.  We will grant both motions and accept
the filings.  As both parties have pointed out, this will ensure that we have the complete record before us for
our consideration.  We now turn to the merits of PacBell Mobile's Reconsideration Petition. 

     14.  Timeliness of PG&E's Reconsideration Petition.  The language set forth on PG&E's licenses for
Stations WNTA286 and KSR41 imposed a condition that the two facilities were to be operated on a secondary
basis.  PG&E's letter seeking reconsideration came five to seven months after the effective dates of the
licenses.  PacBell Mobile argues that PG&E's petition was therefore untimely and should have been dismissed. 
PacBell Mobile states that licensees should have the responsibility to seek reconsideration promptly and should
not be allowed to extend the period to seek reconsideration for several months. 

     15.  While we recognize that licensees generally have only thirty days to seek reconsideration of a
condition placed on their licenses, we nonetheless note the Division's decision in Contel Cellular of Nashville,
Inc.  In Contel, the Division determined that the secondary status conditions placed on certain 2 GHz FMS
licenses contained language that did not provide sufficient notice to the licensees that their licenses were subject
to a condition.  Virtually identical language was placed on the PG&E licenses at issue here.  Accordingly,
for the reasons explained in Contel, the date from which the thirty-day filing requirement would begin to run
had not yet been established in the instant matter.  Thus, PG&E's request was timely and was properly
considered on its merits.

     16.  PacBell Mobile also argues that PG&E's request for reconsideration should have been placed on
public notice giving PacBell Mobile an opportunity to comment.  PacBell Mobile cites no authority for this
proposition, and the Commission does not ordinarily place reconsideration requests regarding licensing actions
on public notice.  In any event, PacBell Mobile has now had a full opportunity to oppose PG&E's
reconsideration request. 

     17.  Station WNTA286.  The license for Station WNTA286 was scheduled to expire on March 23,
1995.  While PG&E filed its renewal application on February 14, 1995, the credit card authorization for the
renewal fee apparently could not be processed.  On March 31, 1995, PG&E resubmitted the application along
with a check for the filing fee.  PG&E argues that its March 31 application was accepted nunc pro tunc, and
that therefore a secondary status condition should not have been imposed on its license.  PacBell Mobile cites
the Commission's Rules (Section 1.1112) which state that where final payment has not been made, an
application submitted after the regulatory deadline will not be given nunc pro tunc treatment.  PacBell Mobile
argues that therefore PG&E received a new license and imposing the secondary status condition was correct.

     18.  We find that neither party is correct.  PG&E cites no authority for its argument that its application
was accepted nunc pro tunc.  PacBell's citation of Section 1.1112 of the Commission's Rules is misplaced
because that section provides that the Commission will dismiss an application when a party has not made final
payment.  Here, PG&E did make final payment and the Commission never dismissed PG&E's application. 
Accordingly, Section 1.1112 is inapplicable.  

     19.  Rather, we find that PG&E's license was timely reinstated.  During the time at issue, Part 94 of
the Commission's Rules, which governed private operational FMS licenses such as PG&E's, did not contain
any specific provisions regarding the reinstatement of expired licenses.  Rather, reinstatements were handled
as part of the license application and renewal procedures.  Section 1.1152 of the Rules, which specified the
annual regulatory fees and filing locations for the wireless radio services, set forth the fee, filing location and
form (FCC Form 402) to be used for the reinstatement of Part 94 microwave licenses.  In addition, the
instructions for FCC Form 402, which was used to apply for both new licenses and renewals of FMS stations,
provided that it also should be used to apply for reinstatements.  FCC Form 402 stated, in relevant part,
"CORRECT FORM:  Use FCC Form 402 to apply for an operational fixed microwave station authorization
in the Private Operational Fixed Microwave Radio Service (Part 94).  This includes . . . reinstatements of
expired authorizations."  The instructions also advised applicants how to complete the form for
reinstatements.  Further, we note that the Commission previously had similar uncodified reinstatement policies
with respect to licenses in the Private Land Mobile Radio Services (PLMRS) and the General Mobile Radio
Service.  

     20.  PG&E's license for Station WNTA286 expired on March 23, 1995.  PG&E re-filed its application
for renewal on March 31, 1995, within eight days of the expiration of its license.  The Commission's records
show that PG&E's license was, in fact, reinstated and that public notice of the receipt of PG&E's reinstatement
application was made on May 12, 1995.  The granting of a reinstatement request generally operates to
reinstate and renew the license nunc pro tunc.  Therefore, with regard to the proper status of 2 GHz FMS
licenses, where a license has been reinstated pursuant to a timely request, we will treat it as though it has been
timely renewed.  Because PG&E's license for Station WNTA286 was timely reinstated, we conclude that a
secondary status condition should not have been placed on the license and, thus, we correctly granted PG&E's
request for reconsideration to remove the condition.

     21.  Station KSR41.  At the time PG&E's applications for modification were granted, the Commission's
policy was that any change in azimuth was a minor change which would not result in the imposition of
secondary status.  Given that the facility change requested in PG&E's modification application involved only
an azimuth change, we agree with the Division that such proposal was not a major change warranting
secondary status.  Accordingly, we find that the license for Station KSR41 should have been given primary
status, and, thus, we correctly granted PG&E's request for reconsideration in this regard.

     22.  PacBell Mobile further argues that because the request for reconsideration was untimely, the
Division should have applied the rule at the time the request was filed.  First, as stated above, we conclude
that the request was not untimely because the language placed on the license for Station KSR41 was not
sufficiently clear to place PG&E on notice that it was subject to a secondary status condition.  Second, PG&E's
request did not stand alone but rather was a request for the Division to reconsider its action imposing secondary
status when it granted the modified license.  Thus, we will apply the rules that were in effect and should have
been applied when the initial action was taken, rather than rules that were adopted after that time.

                      IV.  ORDERING CLAUSES

     23.  ACCORDINGLY, IT IS ORDERED that pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, 47 U.S.C.  154(i) and 405, and Section 1.106 of the Commission's Rules, 47
C.F.R.  1.106, the Petition for Reconsideration of Pacific Bell Mobile Services IS DENIED.

     24.  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