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

In the Matter of Applications of)
                                )
THE STATE OF MINNESOTA          )       FCC File Nos. 9511721707, 
                                )       9510720361, 9510720359, 
for Fixed Microwave Radio Service Primary )       9510720360, 730604, 730176
Status for Station WNTU868, Winona, Minnesota, )
Station WNTH778, Beaver Bay, Minnesota,)
Station WNTH779, Lutsen, Minnesota,)
Station WNTH780,Grand Marais, Minnesota, )
Station KOO25, Janesville, Minnesota, and)
Station WNTT307, New Ulm, Minnesota)


                    ORDER ON RECONSIDERATION


   Adopted:  September 24, 1999         Released:  September 24, 1999

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


                         I.  INTRODUCTION

     1.  The State of Minnesota (Minnesota) operates a point-to-point fixed microwave service (FMS)
network in the 2 GHz band in Minnesota.  On May 29, 1996, Minnesota, through the Minnesota Department
of Transportation, sent a letter to the Private Wireless Division (Division) of the Wireless Telecommunications
Bureau (Bureau) requesting reconsideration of the imposition of a secondary status condition on the
authorization for Station WNTU868 in its network.  On September 12, 1996, Minnesota sent a similar letter
requesting that the Division reconsider the imposition of secondary status conditions on the authorizations for
Stations WNTH778, WNTH779 and WNTH780.  On March 25, 1997, Minnesota requested that the Division
reconsider the imposition of secondary status conditions on the authorizations for Stations KOO25 and
WNTT307.   For the reasons set forth below, we grant the requests for reconsideration with regard to Stations
WNTU868, WNTH778, WNTH779, WNTH780, and KOO25 and will re-issue the licenses for those stations
with primary status, and we deny the request for reconsideration with regard to Station WNTT307.

                         II.  BACKGROUND

     2.  Reallocation of the 2 GHz Band.  On January 16, 1992, the Commission proposed to reallocate
portions of the 2 GHz band from FMS to emerging technology services (ET), including the personal
communications services (PCS).  The Commission intended to reaccommodate the FMS licensees in a manner
that would be most advantageous for the incumbent licensees (incumbents), 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 and paying 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 Microwave Branch, Licensing Division of the former Private Radio Bureau
(Microwave Branch) issued a Public Notice stating that while new facilities in the 2 GHz band would be given
secondary status, secondary status would not be accorded to those stations licensed prior to January 16, 1992,
as to which the FMS licensee made certain minor or technical modifications of its facilities.  Secondary status
also would not be accorded in situations where additional links were 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, where the applicant made a valid showing of its need for the new facilities.  Later
that year, the Commission affirmed this approach.  As a result, existing 2 GHz facilities could make certain
modifications and minor extensions and retain primary status, but 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 October 12, 1995, the Commission sought comment on whether it should continue to grant any
2 GHz FMS applications on a primary basis.  The Commission stated that to the extent practicable it would
continue to apply the current rules governing primary and secondary status to pending modification
applications, but that subsequently filed applications would be granted primary status only for modifications
that would not add to the relocation costs of PCS licensees.  Thus, the Commission set forth a limited list of
technical changes that would be granted primary status, and stated that any other modifications would be
permitted only on a secondary basis unless the incumbent made a special showing of need to justify primary
status and established that the modifications would not add to the relocation costs of PCS licensees.

     5.  On April 25, 1996, the Commission adopted the current regulations regarding the licensing of FMS
systems in the 2 GHz band, which went into effect August 1, 1996.  As a result, major modifications and
extensions are licensed on a secondary basis.  Primary status is granted for a limited number of technical
changes including, inter alia, data corrections which do not involve a change in the location of an existing
facility.  All other minor modifications 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 ET licensees.

     6.  Minnesota's License Applications:  October 1995 Applications.  On October 13, 1995, one day
after the Cost Sharing NPRM was adopted, Minnesota filed applications to modify the licenses for Stations
WNTH778, WNTH779 and WNTH780.  The 2 GHz path between Stations WNTH778 and WNTH779
spans Lake Superior and had a history of poor performance and regular path fading.  In order to improve
system performance and reliability, Minnesota sought to replace an active repeater system with back-to-back
microwave equipment, which required the use of two additional frequencies.  Minnesota also sought to
exchange frequencies among Stations WNTH778 and WNTH779 and Station WNTH780, and to add space
diversity antennas to improve receiver performance.  In addition, Minnesota sought to increase the power for
the stations slightly and to correct the data regarding the heights for the antenna and tower for Station
WNTH778.  The existing path parameters and azimuths for Stations WNTH778 and WNTH779 would
remain the same.  With regard to Station WNTH780, in addition to changing the frequencies as just
described, Minnesota sought to modify its license to correct the information for the antenna height and to
increase the power by four decibels.

     7.  Effective February 6, 1996, Minnesota was issued modified licenses for Stations WNTH778,
WNTH779 and WNTH780.  The licenses 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.  

Prior to this time, Stations WNTH778, WNTH779 and WNTH780 were authorized to operate on a primary
basis.  On September 12, 1996, Minnesota requested reconsideration of the secondary status accorded to
Stations WNTH778, WNTH779 and WNTH780 and asked that the Division re-issue the licenses on a primary
basis.  Minnesota stated that the modification applications satisfied the Commission's requirements for
primary status and that the modifications did not add to the relocation costs of the new PCS licensees.

     8.  November 1995 Application.  On November 22, 1995, Minnesota filed an application to modify
the license for Station WNTU868 in order to correct the coordinate information because more accurate
coordinate data had become available.  No equipment was moved or modified at the site.  Prior to this time,
Station WNTU868 was authorized to operate on a primary basis.  

     9.  Effective January 24, 1996, Minnesota was issued a modified license for Station WNTU868 that
contained similar language to that appearing in its modified licenses for Stations WNTH778, WNTH779 and
WNTH780, quoted above.  On May 29, 1996, Minnesota requested reconsideration of the secondary status
condition accorded Station WNTU868 and asked that the Division re-issue the license on a primary basis. 
Minnesota stated that the modification application was made strictly to update the data and records for the
Station WNTU868 and that no added costs would be incurred for PCS relocation because of the modification. 

     10.  October 1996 Applications.  On October 6, 1996, Minnesota filed an application to modify the
licenses for Stations KOO25 and WNTT307 in order to add a new 960 MHz path and to change the location
for Station WNTT307 from a leased site to a new tower on state property approximately one mile away. 
Minnesota planned to use the same equipment at the new location.  The new site for Station WNTT307
required a 0.8 degree change in the authorized azimuth for Station KOO25, but otherwise no changes were
made at Station KOO25.  

     11.  Effective February 18, 1997, and March 10, 1997, Minnesota was issued modified licenses for
Stations WNTT307 and KOO25 that contained similar language to that appearing in its modified licenses for
Stations WNTH778, WNTH779 and WNTH780, quoted above.  Prior to this time, Stations KOO25 and
WNTT307 were authorized to operate on a primary basis.  On March 25, 1997, Minnesota timely requested
reconsideration of the secondary status conditions accorded Stations KOO25 and WNTT307 and asked that
the Division re-issue the licenses on a primary basis.  Minnesota stated that these modifications did not add
any new 2 GHz equipment or frequencies to Minnesota's existing system and that the modifications did not add
to the costs of any potential relocation but, in fact, because of the lower antenna height, easier access to the
property and a less loaded tower, the physical relocation of Station WNTT307, reduced those costs.

                         III.  DISCUSSION

     12.  As we held in Contel Cellular of Nashville, Inc., the purpose of the language quoted above in
Paragraph 7 was to place a condition on 2 GHz licenses that they were to be operated on a secondary basis. 
Ordinarily, licensees have only thirty days to seek reconsideration of a condition placed on their licenses. 
Minnesota's letter regarding Stations WNTH778, WNTH779 and WNTH780, and its letter regarding Station
WNTU868, coming over seven months and four months after the effective dates of the licenses, respectively,
therefore would ordinarily be untimely.  But as we determined in Contel, the language used did not provide
sufficient notice to the affected 2 GHz license holders that their licenses were subject to a secondary status
condition.  Accordingly, for the reasons explained in Contel, Minnesota's requests are timely and are properly
considered on their merits.

     13.  Minnesota's application for modification of the license for Station WNTU868 corrected the
location coordinates listed on the license to account for more accurate information Minnesota had received. 
The Commission held in adopting its final rules regarding future licensing in the 2 GHz band that data
corrections are minor technical changes that do not add to the relocation costs of ET licensees and thus are not
subject to the imposition of a secondary status condition.  We will therefore grant Minnesota's May 1996
request for reconsideration and will re-issue the license for Station WNTU868 with primary status.

     14.  However, several of the changes Minnesota proposed to make to Stations WNTH778, WNTH779
and WNTH780 do not meet the definitions of minor "technical" changes in effect at the time the applications
were granted (February 6, 1996) that would allow the stations to retain primary status without a further
showing.  Under the Commission's Rules then in effect, incumbents that made non-technical modifications
nonetheless could retain primary status if they made a special showing of need to justify primary status and
established that the modifications would not add to the relocation costs of PCS licensees.  We conclude that
Minnesota has made the requisite showing for Stations WNTH778, WNTH779 and WNTH780.  Minnesota
states that the stations are part of a large, state-wide network that operates with primary status in the 2 GHz
band, and that the network is used primarily by the Minnesota Department of Public Safety-State Patrol, the
Minnesota Department of Transportation and the Minnesota Department of Natural Resources.  Minnesota
further states that the channel's primary use is for State Patrol radio and for Department of Transportation
radio, and that the network is also used for remote tower security and Department of Transportation roadway
and weather monitoring systems.  Without primary status, the integrity and reliability of the entire system
might be adversely affected.  Moreover, we find that Minnesota's modifications to Stations WNTH778 and
WNTH779 did not increase the size of its FMS system (i.e., did not constitute an extension of the system) but
merely improved the performance and reliability of an historically poorly performing link.  Accordingly, we
will grant Minnesota's September 1996 request for reconsideration and will re-issue the licenses for Stations
WNTH778, WNTH779 and WNTH780 with primary status.

     15.  We also will grant Minnesota's request for primary status for Station KOO25.  Minnesota sought
to change the antenna azimuth 0.8 degrees because of the relocation of Station WNTT307; there was no
physical change to Station KOO25's equipment.  While such a modification is not a minor "technical" change
under Section 101.81 of the Commission's Rules that automatically allows the retention of primary status,
a change in antenna azimuth of one degree or less is a minor modification.  Accordingly, Minnesota may
retain primary status if it affirmatively justifies primary status and establishes that the change does not add to
the relocation costs of ET licensees.  As stated above, Minnesota states that its stations are part of a large,
state-wide network that operates with primary status in the 2 GHz band, and that the network is primarily used
by the Minnesota Department of Public Safety-State Patrol, the Minnesota Department of Transportation and
the Minnesota Department of Natural Resources.  Minnesota further states that the channel's primary use is
for State Patrol radio and for Department of Transportation radio, and that the network is also used for remote
tower security and Department of Transportation roadway and weather monitoring systems.  Without primary
status, the integrity and reliability of the entire system may be adversely affected.  We therefore conclude that
Minnesota has affirmatively justified primary status for Station KOO25.  Further, Minnesota states that the
change in azimuth required no change in equipment and therefore did not alter the relocation costs of the
station.  Accordingly, we will grant Minnesota's March 1997 request for reconsideration with regard to
Station KOO25 and will re-issue the license for Station KOO25 with primary status.

     16.  Finally, we deny Minnesota's request for primary status for Station WNTT307.  Minnesota sought
to modify the license for Station WNTT307 to move the station from a site leased from a private company to
a new tower site, approximately one mile north, constructed on state property.  Minnesota contends that the
station is eligible for primary status because Minnesota affirmatively justified primary status and established
that the modification would not add to the relocation costs of PCS licensees.  The standard cited by
Minnesota, however, was applicable only to applications submitted before October 1995.  At the time
Minnesota's modification application for Station WNTT307 was filed (October 1996) and granted (February
1997), the Commission's Rules provided that all major modifications to 2 GHz stations result in the imposition
of secondary status.  A move of more than five seconds (approximately 500 to 550 feet), such as the one-mile
move at issue here, is a major modification.  Since Minnesota did not seek a waiver of the Commission's
Rules, Station WNTT307 was correctly accorded secondary status.  Accordingly, we deny Minnesota's March
1997 request for reconsideration with regard to Station WNTT307.

                      IV.  ORDERING CLAUSES

     17.  ACCORDINGLY, IT IS ORDERED that pursuant to Sections 4(i), 303(r) and 405 of the
Communications Act of 1934, 47 U.S.C.  154(i), 303(r) and 405, and Sections 1.106, 1.925, 101.23 and
101.69 of the Commission's Rules, 47 C.F.R.  1.106, 1.925, 101.23, 101.69, the petitions for
reconsideration filed by the State of Minnesota, Minnesota Department of Transportation on May 29, 1996,
September 12, 1996, and March 25, 1997, ARE GRANTED IN PART AND DENIED IN PART and the
licenses for Stations WNTU868, WNTH778, WNTH779, WNTH780, and KOO25 will be re-issued with
primary status.

     18.  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