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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 ) ) GTE MOBILNET OF THE SOUTH, INC. ) FCC File Nos. 9506408, 9506410 ) Fixed Microwave Radio Service ) Applications for Station WLC472, ) Irvington, Alabama and ) Station WMS288, Grand Bay, Alabama) ORDER ON RECONSIDERATION Adopted: September 8, 1999 Released: September 9, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On January 24, 1996, GTE Mobilnet of the South, Inc. (GTE Mobilnet) requested that the Microwave Branch (Branch), Licensing Division of the Wireless Telecommunications Bureau remove a secondary status condition the Branch had placed on the licenses for Stations WLC472 and WMS288 and issue new authorizations for the stations. Treating GTE Mobilnet's request as one for reconsideration of the Branch's action, we grant the request for the reasons set forth below and will re-issue the licenses with primary status. II. BACKGROUND 2. On January 16, 1992, the Commission issued a Notice of Proposed Rule Making proposing to reallocate portions of the 2 GHz band from fixed microwave service (FMS) to emerging technology services (ET), including the 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, 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 ET licensees for a significant length of time, by the end of which the incumbents were to relocate to another portion of the 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 the additional costs caused by the earlier relocation. One 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 forced 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 Branch issued a Public Notice stating that while new facilities would be licensed on a secondary basis, secondary status would not be accorded to modifications of facilities licensed prior to January 16, 1992 (the date the ET NPRM was adopted). 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 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. GTE Mobilnet operates a point-to-point FMS network in the 2 GHz band in Alabama. It previously operated Stations WLC472 and WMS288 on a primary, interference-free basis. On June 21, 1995, GTE Mobilnet submitted applications to modify the licenses for Stations WLC472, Irvington, Alabama, WLV455, Azalea, Alabama, and WMS288, Grand Bay, Alabama. GTE Mobilnet sought to change the path from Station WLC472 to Station WMS288 from one frequency in the 2 GHz band to another frequency in the 2 GHz band, and to do the same with regard to the path from Station WMS288 back to Station WLC472. GTE Mobilnet also sought to correct the station coordinates for Station WLC472 on all three licenses, to delete a path from Station WLC472, and to change the name of the licensee. 5. The Branch granted GTE Mobilnet's applications and issued modified licenses for Stations WLC472, WLV455 and WMS288 effective August 7, 1995. The licenses for Stations WLC472 and WMS288 contained the following language: This authorization for any facilities authorized for frequency between 1850 and 2200 MHz is subject to the rules, procedures, and policies imposed by the Commission in ET Docket No. 92-9, including operation of a facility at 1850 to 2200 MHz on a secondary, non-interference basis. On January 24, 1996, GTE Mobilnet requested that this condition be removed. III. DISCUSSION 6. As we recently held in Contel Cellular of Nashville, Inc., the purpose of the language quoted in Paragraph 5 was to place a condition on GTE Mobilnet's licenses that the stations were to be operated on a secondary basis. GTE Mobilnet's licenses for Stations WLC472 and WMS288 were granted with this condition effective August 7, 1995, but GTE Mobilnet did not send its letters requesting removal of the condition until January 24, 1996, over five months later. Ordinarily, licensees have only thirty days to seek reconsideration of a condition placed on their licenses. As we held in Contel, however, 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, GTE Mobilnet's requests are properly considered timely and will be addressed on their merits. 7. At the time GTE Mobilnet's modified licenses were issued, incumbent 2 GHz licensees could make certain modifications and retain primary status, although major extensions or expansions of their systems would be considered secondary unless the licensees made a special showing of need to justify primary status. Correcting station coordinates, deleting authorized paths and pro forma name changes are all changes that could have been made to existing facilities without affecting a station's primary status. In addition, we conclude that under the rules in effect when GTE Mobilnet's applications were granted, changing the frequency and polarization of a path from one frequency in the 2 GHz path to another frequency in the 2 GHz path also allowed a station to retain primary status. Exchanging frequencies within the 2 GHz band is not the "addition" of a frequency, but the replacement of one frequency with another. As such, we believe that such a change did not constitute a major expansion or extension of GTE Mobilnet's system. We conclude that changing frequencies within the 2 GHz band therefore should not cause a station to lose primary status. Accordingly, we grant GTE Mobilnet's request with regard to Station WLC472 and will re-issue its license with primary status. 8. With regard to Station WMS288, we note that this facility was originally authorized with primary status in 1994, i.e., after January 16, 1992. Under the rules then in effect, while the modifications to Station WMS288 do not fall within the category of changes that would accord the station secondary status (Station WMS288 is not a new station and the modifications do not constitute a major extension or expansion of GTE Mobilnet's system), neither do they fall within the category that would allow the station to retain primary status (because Station WMS288 was not an existing station as of January 16, 1992). In the 1992 ET First Report and Order, the Commission did not address the issue of how to treat modifications to a 2 GHz station that was initially authorized with primary status after January 16, 1992, in accordance with its new policy. Given that the Commission did not set forth an express rule regarding the effect minor modifications would have on post- January 1992 stations, for the reasons set forth below, we believe that such stations should be treated the same as stations authorized prior to January 16, 1992. 9. First, we believe that the concern the Commission expressed in the ET First Report and Order for allowing existing FMS licensees to operate without devaluing the usefulness of their 2 GHz systems, and the policy balance the Commission struck by allowing existing licensees to retain primary status when they made modifications to their facilities, apply equally well to stations that were authorized with primary status after January 16, 1992 as to those authorized with primary status before January 16, 1992. We believe that the Commission's interest in conserving vacant 2 GHz spectrum for future use by ET licensees is not affected by the minor modification of a station that already has primary status. Second, Section 101.81 of the Commission's Rules, which governs licensing after April 25, 1996, makes no distinction between pre-January 1992 stations and post-January 1992 stations; both are permitted to retain primary status if they make the same types of modifications. Finally, we note that in some cases a rule according secondary status to post-January 1992 stations that are modified could lead to illogical results. For example, in this case, GTE Mobilnet corrected the coordinates for Station WLC472. Because Station WLC472 is a pre-January 1992 station, this modification to its license does not result in the station being accorded secondary status. The data correction, however, also required the license for Station WMS288, a post-January 1992 station, to be changed to show the correct coordinates of the receive station (Station WLC472). It would be anomalous if the data correction resulted in Station WMS288 being accorded secondary status simply because it was licensed after January 16, 1992, while Station WLC472 -- the station actually being modified -- retained primary status because it was initially authorized before January 16, 1992. 10. We therefore conclude that modifications to post-January 1992 stations that obtained primary status in accordance with the Commission's 2 GHz licensing policy should be treated the same as modifications to pre-January 1992 stations with primary status. As stated above with regard to Station WLC472, we find that the modifications proposed here by GTE Mobilnet would not cause a pre-January 1992 station to lose primary status under the Commission's 2 GHz licensing policy. We therefore conclude that Station WMS288 should not have been accorded secondary status and we will re-issue the license with primary status. IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, 47 U.S.C.  154(i), 405, and Sections 1.106 and 101.69 of the Commission's Rules, 47 C.F.R.  1.106, 101.69, the requests of GTE Mobilnet of the South, Incorporated, dated January 24, 1996, ARE GRANTED and the licenses for Stations WLC472 and WMS288 will be re-issued with primary status. 12. 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