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

In the Matter of                )
                                )
CITY OF HENDERSON, NEVADA       )  FCC File No. 746185
                                )
Fixed Microwave Services        )  
Application to Reinstate License for )
Station WNER752, Henderson, Nevada )


                             ORDER


   Adopted:  September 29, 1999         Released:  September 29, 1999

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


                         I.  INTRODUCTION

     1.  The City of Henderson, Nevada (Henderson) requests that its license for Station WNER752,
Henderson, Nevada, a fixed microwave service (FMS) station that operates in the 2 GHz band, be reinstated
with primary status.  The station is part of the public safety communications system for Henderson's local
agencies, including the police, fire and public works departments.  For the reasons set forth below, we grant
Henderson's request.  

                         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 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 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.  In a First Report and Order and Third Notice of Proposed
Rule Making, released October 16, 1992, the Commission generally adopted the transition plan just described. 
   

     3.  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 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.

     4.  Station WNER752 is part of a three-station 2 GHz network used by Henderson.  In 1994,
Henderson applied for and received modified licenses for the other two stations in the network, Stations
WNER751 and WNER753, which extended the licenses' expiration dates until August 17, 1999.  The license
for Station WNER752, however, was not modified and was scheduled to expire on June 8, 1998.  Henderson
contends that on May 10, 1998, it sent a letter to the FCC stating that it had not received its renewal notice for
Stations WNER751, WNER752 and WNER753 and that the letter should act as its notice of renewal.

     5.  On October 5, 1998, Henderson determined that the FCC had not received its letter of May 10,
1998, and that the license for Station WNER752 had expired.  That same day, Henderson applied for and
received Special Temporary Authority to operate the station.  On November 6, 1998, Henderson filed an
application to reinstate its license for Station WNER752.  In the accompanying cover letter, Henderson asks
that the license be reinstated with primary status.

                         III.  DISCUSSION

     6.  The Commission has recently adopted a new policy regarding reinstatements in the wireless
services.  Renewal applications that are filed up to thirty days after the expiration date of the license will
generally be granted nunc pro tunc, although the licensee may be subject to an enforcement action for untimely
filing and unauthorized operation during the time between the expiration of the license and the untimely renewal
filing.  Applicants who file renewal applications more than thirty days after the license expiration may also
request that the license be renewed nunc pro tunc but such requests will not be routinely granted, will be
subject to stricter review and also may be accompanied by enforcement action, including more significant fines
or forfeitures.  In determining whether to reinstate an application, we take into consideration all of the facts
and circumstances, including the length of the delay in filing, the reasons for the failure to timely file, the
potential consequences to the public if the license should terminate, and the performance record of the
licensee.  Because Henderson's application for reinstatement is pending, we will consider whether it should
be granted under the new policy.  

     7.  Taking into account all of the facts and circumstances, including the specific factors set forth by
the Commission, we conclude that Henderson's license should be reinstated.  With regard to the first two factors
set forth by the Commission -- length of the delay and the reasons for failing to timely file -- although
Henderson's request for reinstatement was made approximately four and a half months after its license expired,
we nonetheless believe that the unusual circumstances of this case justify our reinstating Henderson's license
nunc pro tunc.  Particularly relevant is that Henderson did not simply allow its license to lapse but, after not
receiving a renewal form from the FCC as it had expected, attempted to renew the license in a timely fashion. 
While such facts do not excuse Henderson from timely filing a proper renewal application, they do reflect
good faith efforts on Henderson's behalf to retain the license for Station WNER752.  With regard to the last
factor, we find that there would be adverse consequences to the public if the license were to lapse.  Reinstating
the license will allow Station WNER752 to retain primary status, while not reinstating the license and requiring
Henderson to acquire a new license would accord the new station secondary status under the Commission's
licensing rules for the 2 GHz band.  Henderson states that Station WNER752 is at the "heart" of its public
safety communications system, which includes the entire Police, Fire, and Public Works Departments as well
as other local government agencies, and that not granting the station primary status would render this system
useless.

     8.  We also find that other factors militate in favor granting Henderson's reinstatement request.  We
note that Station WNER752 had primary status until June 8, 1998, at which point Henderson inadvertently
allowed the license to lapse.  Thus, prior to such date, future ET licensees would have had to pay to relocate
Station WNER752, in addition to having to pay to relocate Henderson's two other 2 GHz stations which still
retain primary status.  While denying Henderson's reinstatement request would cause Station WNER752 to
be treated as a "new" facility under the Commission's Rules, granting a license for the station would not
actually expand Henderson's network beyond what was originally authorized.  We conclude, therefore, that
allowing the license for Station WNER752 to be reinstated nunc pro tunc and retain primary status will not
place a future ET licensee in any worse a position than if Henderson had timely renewed the license for Station
WNER752.

                      IV.  ORDERING CLAUSES

     9.  ACCORDINGLY, IT IS ORDERED that pursuant to Section 4(i) of the Communications Act of
1934, 47 U.S.C.  154(i), and Sections 1.949 and 101.69 of the Commission's Rules, 47 C.F.R.  1.949,
101.69, the application to reinstate the license for Station WNER752, filed by the City of Henderson, Nevada
on November 6, 1998, IS GRANTED.  

     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