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

In the Matter of the Petition of )
                                )
MOTOROLA, INC.                  )
                                )
for Reinstatement of Private Operational Fixed  )
Microwave Radio Station Licenses for)
Station WNTI591, Butte, Montana and )
Station WNTI592, Butte, Montana )


                     ORDER ON RECONSIDERATION


     Adopted:  September 27, 1999       Released:  September 28, 1999

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


                         I.  INTRODUCTION

     1.  Motorola, Inc. seeks reconsideration of the action of the Licensing Division, Microwave
Branch (Branch) according secondary status to Motorola's fixed microwave radio licenses for Station
WNTI591, Butte, Montana, and Station WNTI592, Butte, Montana.  For the reasons set forth below, we
grant Motorola's petition.

                         II.  BACKGROUND

     2.  The Commission has reallocated portions of the 2 GHz band from fixed microwave services
(FMS) to emerging technology (ET) services, including the personal communications services (PCS). 
To this end, the Commission has adopted certain transition rules.  First, rather than immediately clearing
the 2 GHz band of the incumbent FMS users, the Commission permits 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 are to relocate to another portion of the spectrum.  ET licensees have the
option, however, of requiring the FMS incumbents to relocate sooner if they pay the additional costs
caused by the earlier relocation.  Second, the Commission is authorizing new FMS stations and most
modifications of FMS stations only on a secondary basis to ET systems.  One practical effect of these
rules is that incumbent FMS licensees that are authorized on a primary basis will have the costs of
relocating to other bands paid for by the new ET licensees if the ET licensees force them to relocate.  On
the other hand, ET licensees are under no obligation to pay to relocate 2 GHz links that are authorized on
a secondary basis.  

     3.  Motorola operates FMS Stations WNTI591 and WNTI592 in the 2 GHz band.  The stations
were originally authorized with primary status, and their licenses were scheduled to expire February 28,
1997.  On February 27, 1997, Motorola's applications for renewal, along with the correct fee, were
received at the FCC's lockbox at the Mellon Bank (Mellon).  The applications were not accompanied,
however, by an FCC Remittance Advice Form.

     4.  As a general matter, applications submitted to the FCC lockbox are opened and the
accompanying fees processed and recorded by personnel at Mellon.  During the time period at issue, the
applications (both those that were to be accepted and those that were to be dismissed because of defects
found by Mellon personnel) were then sent to the FCC.  Commission personnel processed the
applications and reviewed the rejected applications to determine whether they were correctly rejected. 
Rejected applications were then returned to the applicants (without an explanation of any errors).

     5.  Consistent with these procedures, Mellon reviewed Motorola's applications and determined
that they should be dismissed because they were not accompanied by an FCC Remittance Advice Form. 
As a result, Mellon forwarded the applications for processing and dismissal to Commission personnel.  A
Branch examiner determined that Mellon had correctly rejected Motorola's applications.  Instead of
returning the rejected applications to Motorola, it appears that the examiner completed an FCC
Remittance Advice Form and sent the applications back to Mellon, without contacting Motorola. 
Mellon received Motorola's applications and the FCC Remittance Advice form on March 4, 1997, four
days after the licenses' expiration date.

     6.  Motorola states that on May 16, 1997, it was informed by telephone by personnel of the
Public Safety and Private Wireless Division, Licensing and Technical Analysis Branch, that its
applications were not timely filed, and that it should file a petition to reinstate the licenses.  Motorola
filed such a petition on May 19, 1997.  In the petition, Motorola stated that there were no instructions
on the license renewal forms indicating that a remittance form also needed to be filed.  Motorola also
argued that it should be deemed to have complied with a thirty-day grace period for filing renewals.

     7.  Motorola's licenses for Station WNTI591 and WNTI592 were issued effective May 19, 1997,
with a condition requiring the stations to be operated on a secondary basis to ET systems.  On June 9,
1997, Motorola timely filed its petition seeking reconsideration of the action according the reinstated
licenses secondary status.

                         III.  DISCUSSION

     8.   When an application is submitted to the FCC lockbox at Mellon, the application must be
accompanied by a properly completed FCC Remittance Advice Form.  If the Remittance Advice Form
is missing or incorrect, the application will be dismissed.  Motorola's renewal applications, as originally
submitted for filing, were not accompanied by an FCC Remittance Advice Form, so it was proper that
they were not accepted for filing when they were received on February 27, 1997.  Mellon did not
receive Motorola's applications accompanied by an FCC Remittance Advice Form until March 4, 1997,
after the licenses' expiration date.  The renewal applications were therefore untimely and the licenses
expired.  

     9.  Under the rules effective when Motorola's licenses expired, an expired FMS license could be
reinstated if a petition for reinstatement was filed within thirty days of the license's expiration date. 
Motorola did not file its reinstatement petition until May 19, 1997, eighty days after the licenses'
expiration.  The petition would therefore appear to be untimely and Motorola should have been issued
new licenses for its FMS stations.  As stated above, pursuant to the Commission's Rules regarding future
licensing in the 2 GHz band, new FMS licenses are authorized on a secondary basis to ET systems.

     10.  In this case, however, we will grant Motorola a waiver of the requirement it file its
reinstatement petition within thirty days of the licenses' expiration.  We may grant a waiver of a rule
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.  We believe that this case presents unusual circumstances whereby applying the rule
requiring reinstatement petitions to be filed within thirty days would be inequitable. 

     11.  As stated above, instead of returning the rejected applications to Motorola, a Branch
examiner completed an FCC Remittance Advice Form and sent the applications to Mellon, where they
were not received until after the licenses had expired.  Motorola did not learn of this action until well
after the thirty-day period for filing reinstatement petitions had expired.  Had the applications been
returned to Motorola, it would have had sufficient time -- at least three weeks -- to correctly submit the
applications with an FCC Remittance Advice Form and to timely file a petition for reinstatement. 
Given Motorola's prompt action in filing its reinstatement petition only three days after learning that
such a petition was necessary, we believe that it would have timely filed a reinstatement petition had it
been given the opportunity to do so.

     12.  Since granting a reinstatement petition generally operates to reinstate and renew a license
nunc pro tunc, with regard to the proper status of 2 GHz FMS licenses, where licenses have been
reinstated pursuant to a timely request, we will treat the subject licenses as though they had been timely
renewed.  Thus, had Motorola timely filed a reinstatement petition, we believe that it would have been
appropriate to re-issue the licenses with primary status.  Since Motorola was prevented from timely filing
a reinstatement petition because of an action of Branch personnel, we find that it would be inequitable to
apply the thirty-day rule to deny Motorola's petition and accord its licenses secondary status. 
Accordingly, given the unusual circumstances of this case, we grant Motorola a waiver to allow it to
request reinstatement of the expired licenses for Stations WNTI591 and WNTI592 beyond the thirty-day
period contained in Section 101.65 of the Commission's Rules, as in effect during the time at issue, and
treat Motorola's reinstatement petition as timely filed.  We therefore grant Motorola's petition for
reconsideration and will re-issue the licenses with primary status.

                      IV.  ORDERING CLAUSES

     13.  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 1.925 of the
Commission's Rules, 47 C.F.R.  1.106, 1.925, the Petition for Reconsideration of Motorola, Inc. filed
on June 9, 1997, IS GRANTED and the licenses for Stations WNTI591 and WNTI592 will be re-issued
with primary status.

     14.  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