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

In the Matter of the Application of )
                                )
CAL-ONE CELLULAR L.P            )  FCC File No. 9707821 
                                )
for Authorization in the Microwave )    
Services for Modification of    )
Station WMJ409, Yreka, California )


                    ORDER ON RECONSIDERATION


   Adopted:  August 18, 1999            Released:  August 19, 1999  

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


                         I.  INTRODUCTION

     1.  In connection with its application for authorization to modify the facilities for Station WMJ409,
Yreka, California, Cal-One Cellular L.P. (Cal-One) requests a waiver of Section 101.81 of the Commission's
Rules that would otherwise require the station to be authorized on a secondary basis to emerging technology
(ET) systems.  For the reasons set forth below, we deny Cal-One's request.

                         II.  BACKGROUND

     2.  On April 25, 1996, the Commission adopted regulations refining the licensing policy regarding
FMS systems in the 2 GHz band.  Under the current rules, new stations, extensions of existing networks and
major modifications of stations licensed prior to January 16, 1992, will be licensed on a secondary basis. 
Primary status will be granted for a limited number of minor modifications that are termed technical changes. 
All other minor modifications will render the modified license secondary unless the FMS licensee justifies
primary status and the modification does not add to the relocation costs to be paid by the new PCS licensees.

     3.  On August 18, 1998, Cal-One filed an application for authorization to modify the facilities for
Station WMJ409.  Cal-One seeks to replace the current transmitters, change the modulation/emission
designators, increase the transmitter output power and increase the EIRP (Equivalent Isotropic Radiated
Power) by 4 dB.  In connection with that application, Cal-One seeks a waiver of Section 101.81 of the
Commission's Rules, which provides that all major modifications to existing FMS stations in the 2 GHz band
will be authorized on a secondary basis to ET systems.

                         III.  DISCUSSION

     4.  Cal-One's proposed change in emission designators and its increase in EIRP by 4 dB are major
modifications under the Commission's Rules.  As Cal-One recognizes, without a waiver of Section 101.81,
its application for a modified license would be granted only on a secondary basis.  We may grant a waiver
of a rule (a) when the underlying purpose of the rule would not be served by application to the instant case and
a grant of the waiver is in the public interest, or (b) when in view of the unique or unusual circumstances of
the case, application of the rule would be inequitable, unduly burdensome or contrary to the public interest,
or the applicant has no reasonable alternative.  

     5.  In support of its argument for a waiver, Cal-One cites a 1992 Public Notice issued by the
Microwave Branch of the former Private Radio Bureau titled "Two Gigahertz Fixed Microwave Licensing
Policy."  The Public Notice stated that modifications made to stations licensed before January 16, 1992,
would not be accorded secondary status.   Cal-One argues that a waiver is justified because the proposed
modifications would be made to a 2 GHz system existing prior to January 16, 1992.  Cal-One also states
Station WMJ409 is part of a wide-area cellular telephone network covering the California 1 Rural Service Area
(RSA) and that Cal-One is the wireline cellular radiotelephone service licensee for the California 1 RSA.  Cal-
One argues that, therefore, the Commission should grant the waiver to allow Cal-One to continue to provide
high quality wireline service to the public.  

     6.  The licensing policy announced in the Public Notice was explicitly superseded by the Commission
when it adopted the current rules set forth in Section 101.81 of the Commission's Rules.  Therefore, we
conclude that such policy does not provide a sufficient basis for waiving the current rules.  Moreover, we
believe that the fact that Cal-One might have been accorded primary status under the policy in effect until 1996
but is not accorded primary status under the current policy supports the conclusion that applying the rule to
the current cases serves the underlying purpose of Section 101.81 of the Commission's Rules.  Cal-One has
presented no other evidence or argument that the underlying purpose of Section 101.81 of the Rules would not
be served by application in this case or that there are any unique or unusual circumstances present here that
would make application of the rule inequitable, unduly burdensome or contrary to the public interest.  In fact,
Cal-One's application for modification of its facilities, which proposes to change the transmitters for Station
WMJ409 and make associated changes, does not appear unique or unusual.  Finally, we find that the fact that
Cal-One is the wireline cellular licensee for the California 1 RSA is not a factor which sufficiently bolsters Cal-
One's submission to provide an adequate basis upon which to grant Cal-One the requested waiver.  

                      IV.  ORDERING CLAUSES

     7.  Based on the record established in this proceeding, we conclude that Cal-One has failed to
demonstrate that waiver of Section 101.81 of the Commission's Rules is warranted under the circumstances
presented.  Accordingly, IT IS ORDERED that pursuant to Section 4(i) of the Communications Act of 1934,
as amended, 47 U.S.C.  154(i), and Sections 1.925 and 101.69 of the Commission's Rules, 47 C.F.R.
 1.925, 101.69, the request for a waiver filed by Cal-One Cellular L.P. on August 18, 1998, is DENIED and
the application for authorization to modify the facilities for Station WMJ409 will be granted on a secondary
basis.

     8.  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