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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 ) ) PASS WORD, INC. ) ) FCC File Nos. 728616, 728617 Petition for Reconsideration of Grant of ) Secondary Status and Reinstatement of ) Primary Status for WNEJ970 - Coeur d' Alene, ) Idaho, and WNEJ972 - Mica Peak, Idaho ) ORDER ON RECONSIDERATION Adopted: October 12, 1999 Released: October 12, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. Pass Word, Inc. seeks reconsideration of the action of the Private Wireless Division (Division) of the Wireless Telecommunications Bureau (Bureau) imposing a secondary condition on the licenses for the above-captioned fixed microwave service (FMS) stations operating in the 2 GHz band. For the reasons set forth below, we deny Pass Word's request to reinstate the licenses on a primary basis. In addition, we allow Pass Word to return the secondary licenses and operate on a primary basis under the parameters used before the licenses were modified and received secondary status, conditioned on completion of the required frequency coordination process. II. BACKGROUND 2. On April 25, 1996, the Commission adopted regulations refining the licensing of FMS systems in the 2 GHz band. Section 101.81 of the Commission's Rules provides that new stations, extensions of existing networks, and major modifications will be licensed only 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 affirmatively justifies primary status and establishes that the modification will not add to the relocation costs to be paid by emerging technology (ET) licensees. 3. Pass Word uses its FMS system, which has been in operation since 1985, to transmit its own communications among its business offices and the offices of its commonly owned and controlled affiliates. These affiliates include licensees engaged in private carrier paging and SMR operations. Pass Word states that more than 4,000 North Idaho mobile radio users depend on the Coeur d' Alene-Mica Peak segment of its FMS system for rapid and efficient communication. 4. On July 30, 1996, Pass Word filed applications to modify the licenses for Stations WNEJ970 (Coeur d' Alene, Idaho) and WNEJ972 (Mica Peak, Idaho). Pass Word sought authorization to relocate its microwave equipment at the Coeur d' Alene site to another location approximately one mile away. To this effect, Pass Word requested authorization to modify the geographical coordinates of the Coeur d' Alene station, the ground elevation at the new site, and the azimuth from the Coeur d' Alene station to the receive site. Pass Word also requested a conforming change in antenna azimuth at the receive site (Mica Peak). Pass Word's modification applications were granted on October 15, 1996, and the licenses were issued on a secondary basis. On November 8, 1996, Pass Word timely filed a petition seeking reconsideration of the Division's action imposing secondary status to Stations WNEJ970 and WNEJ972, and a petition for expedited consideration. III. DISCUSSION 5. Section 101.81 of the Commission's Rules provides that major modifications of existing 2 GHz FMS stations will be accorded secondary status. We find that Pass Word's proposed change in location of approximately one mile is a major modification, as are its proposed changes in antenna azimuth of approximately seven degrees each. Thus, we find that Pass Word's modified licenses were properly accorded secondary status. Further, while Pass Word's arguments regarding its need for primary status and the lack of additional relocation costs caused by its modifications would be relevant to its entitlement to primary status if it were seeking to make minor modifications, we find that they are irrelevant here where Pass Word is seeking to make major modifications to its facilities. 6. Pass Word also argues that it meets the "high hurdle" necessary for a waiver of the Commission's Rules. We may grant a waiver of a rule (a) when the underlying purpose of the rule would not be served by application to the instant case and a grant of the waiver is in the public interest, or (b) 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. Pass Word argues that granting it primary status would serve the public interest. It argues, first, that its FMS stations are essential to its operations, that the proposed modifications were necessitated by its decision to improve the efficiency of its communications businesses by moving the Coeur d' Alene station, and that more than 4,000 mobile radio users depend on its system, including many public safety and government entities. Second, Pass Word states that the modifications were insubstantial, involving a move of only one mile within the same community, and that based on its long experience of over three decades, an ET licensee will not face increased relocation costs because the changes will not alter significantly the microwave environment in the geographic areas served by Pass Word's stations. Conversely, Pass Word argues, according its licenses secondary status creates a potential for destabilization of its microwave system and would result in a degradation of service to mobile users engaged in one- and two-way messaging. Pass Word contends that being accorded secondary status might require it to relocate the secondary path to another frequency band which would be both expensive and technically problematic. 7. As stated above, in adopting Section 101.81 of the Rules, the Commission balanced the needs of incumbent FMS licensees to continue to operate in the 2 GHz band with the needs of new ET licensees. We deny Pass Word's implicit request for a waiver of this rule. We recognize that Pass Word voluntarily decided to move one of its stations in order to improve the efficiency of its businesses. Pass Word's proposed modifications, all of which result from a change in location of approximately one mile, are major modifications. Under Section 101.81 of the Commission's Rules, licensees may retain primary status if they make "technical" changes in location up to two seconds -- approximately 200 feet, or if they make changes in location of up to five seconds -- approximately 500 to 550 feet -- and they affirmatively justify primary status and demonstrate that the change will not increase the relocation costs of an ET licensee. All changes in location greater than five seconds are accorded secondary status. Pass Word's proposed change is approximately one mile, or 5280 feet, which is approximately 50 seconds. Furthermore, under Section 101.81 of the Commission's Rules, licensees may retain primary status if they make changes in azimuth of one degree or less and they affirmatively justify primary status and demonstrate that the change will not increase the relocation costs of an ET licensee. All changes in azimuth greater than one degree are accorded secondary status. Pass Word's proposed changes in azimuth are approximately seven degrees each. 8. The Commission has determined that such changes, because they constitute major modifications, will result in secondary status. We believe that the underlying purpose of the rule is served by its application to the instant case. Also, we note that Pass Word has not shown why its circumstances are unique or so unusual that application of the rule would not be warranted in this instance. Rather, Pass Word's change in location, while "only approximately one mile within the community," is the type of change to which the Commission has decided the rule should apply. We therefore deny Pass Word's request for primary status. 9. Finally, we note that Pass Word stated in its Petition that, if necessary to comply with the Commission's then newly-enacted rules regarding petitions for reconsideration, it would return its new licenses and explicitly reject the conditioned grants. In its Request for Expedited Consideration, Pass Word also stated that it negotiated a temporary lease with its landlord at the originally-licensed Coeur d' Alene location because the risk of moving to its new location, and thus possibly losing primary status if the Petition were denied, was simply too great to assume. We interpret these statements, together with Pass Word's rejection of the conditioned grant, as a request by Pass Word to retain its original licenses if we deny the Petition. Indeed, Pass Word recently confirmed that it has not yet moved to its new location and that if the Petition is not granted, it would cancel its plans to do so. Thus, based on these circumstances, we will grant Pass Word's request to remain at its authorized location prior to the grant of the subject modified licenses. However, because of the amount of time that has lapsed since Pass Word's modified licenses were granted, we are not inclined to allow Pass Word to operate at its previously authorized location without a new frequency coordination. Accordingly, we will reinstate Pass Word's license for Station WNEJ970 at the previously licensed Coeur d' Alene location on the condition that Pass Word completes the required frequency coordination process. We believe that this approach will effectively accommodate Pass Word's needs while minimizing potential interference to other licensees' operations. IV. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and Sections 1.925, 101.23 and 101.69 of the Commission's Rules, 47 C.F.R.  1.925, 101.23, 101.69, the Petition for Reconsideration filed by Pass Word on November 8, 1996, IS DENIED. 11. IT IS FURTHER ORDERED that pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and Section 1.945(e) of the Commission's Rules, 47 C.F.R.  1.945(e), we will reinstate Pass Word, Inc.'s license for Station WNEJ970 at the previously licensed Coeur d' Alene location with primary status, conditioned upon the successful completion of frequency coordination. 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