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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 ) ) TURLOCK IRRIGATION DISTRICT ) FCC File Nos. 9509719916 )9509719917 Petition for Reconsideration of Grant of )9509719918 Secondary Status and Reinstatement of ) Primary Status for WNTV836 in Modesto, CA, ) WPJB805 in Patterson, CA, and WNEI779 ) in Turlock, CA ) ORDER ON RECONSIDERATION Adopted: September 17, 1999 Released: September 17, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order, we grant the request submitted by Turlock Irrigation District (Turlock) on January 17, 1996, seeking reconsideration of the action by the former Microwave Branch (Branch) granting the above- captioned 2 GHz fixed microwave service (FMS) licenses on a secondary basis. For the reasons discussed below, we grant Turlock's request and will re-issue the subject 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 FMS to emerging technology services (ET), including the personal communications services (PCS). 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 to license all new facilities in the 2 GHz band on a secondary basis. Second, rather than immediately clearing the 2 GHz band of the incumbent FMS users, the Commission proposed to permit the incumbents 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. On September 29, 1995, Turlock filed an application for a new FMS facility, Station WPJB805, and modification applications for FMS Stations WNTV836 and WNEI779. Turlock proposed that Station WPJB805 be linked to Stations WNTV836 and WNEI779 via the 2 GHz band. 5. On October 13, 1995, the Commission released a Notice of Proposed Rule Making in WT Docket 95-157. The Commission stated that it would continue to apply the policy set forth in the ET First Report and Order to modification and minor extension applications that were pending as of October 12, 1995. 6. The Branch granted Turlock's licenses for Stations WPJB805, WNTV836, and WNEI779 with secondary status, effective November 14, 1995. On January 17, 1996, Turlock filed a request effectively seeking reconsideration of the grant of the licenses for Stations WPJB805, WNTV836, and WNEI779 with secondary status. III. DISCUSSION 7. Ordinarily, petitions for reconsideration of the conditional grant of a license must be filed "within 30 days from the date on which such grant is made or from its effective date if a later date is specified." Because November 14, 1995, was the effective date of Turlock's licenses, Turlock's reconsideration request, filed on January 17, 1996, was filed approximately one month after the deadline expired. However, as we decided in Contel Cellular of Nashville, Inc., the language which was placed on Turlock's licenses did not provide it with adequate notice that the licenses were granted with a secondary status condition. Accordingly, for the reasons explained in Contel, Turlock's request is properly considered timely and will be addressed on its merits. 8. Under the rules applicable to Turlock's applications, modifications that include the addition of new 2 GHz paths to 2 GHz FMS networks that were licensed before January 16, 1992, would be accorded secondary status unless the applicant made a showing of need to justify primary status. Accordingly, Turlock's proposal to add two new 2 GHz paths to link a new facility, Station WPJB805, to Stations WNTV836 and WNEI779 constitutes the type of modification which requires Turlock to make a valid showing of need to justify primary status. We conclude that Turlock has made such a showing. Turlock is a California state agency established to provide irrigation water and electric power to more than 60,000 customers over a 425-square mile service territory. The subject links will complete a microwave loop in a well-established microwave network, and, Turlock explains, are necessary because they will be used to detect and isolate fault conditions on a 230 kV transmission line. According to Turlock, a rapid detection of a fault condition will prevent a potential blackout. Turlock also explains that these new 2 GHz links will allow critical telemetry data to be transmitted between its Westley 230 kV switchyard and its power control center. Based on this record, we find that Turlock has made a sufficient showing of need to justify primary status. Accordingly, we conclude that Turlock's licenses for Stations WPJB805, WNTV836, and WNEI779 should be re-issued with primary status. IV. ORDERING CLAUSES 9. ACCORDINGLY, IT IS ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 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 Petition for Reconsideration of Turlock Irrigation District filed on January 17, 1996, IS GRANTED and the licenses will be re-issued with primary status. 10. 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