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

In the Matter of the Application of )
                                )
TELCOM SYSTEMS, LTD.            )  FCC File No. 9702819
                                )
for Modification of a Fixed     )
Microwave Radio Station License for)
Station WHO466, Marathon, Florida )


                              ORDER 


     Adopted:  October 25, 1999         Released:  October 25, 1999

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


                         I.  INTRODUCTION

     1.  Telcom Systems, Ltd. (Telcom) requests a waiver of the Commission's Rules to allow it to
retain primary status for Station WHO466, Marathon, Florida, upon the station's relocation to a new site. 
For the reasons set forth below, we grant Telcom's request. 

                         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.  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 existing 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.  Telcom operates FMS Station WHO466 in the 2 GHz band.  Telcom states that the station is
part of a 150-mile path from Miami, Florida to Key West, Florida, and that the system carries private and
telephone exchange lines and is essential for providing long-distance voice and data communications in
the Florida Keys.  On January 22, 1998, Telcom filed an application to modify the license for Station
WHO466 in order to relocate the station within the city of Marathon, Florida.  In connection with that
application, Telcom seeks a waiver of Section 101.81 of the Commission's Rules which would otherwise
authorize the modifications only on a secondary basis.  In support of its waiver request, Telcom states
that the relocation is not one it has voluntarily chosen to make, and indeed is one that it would prefer not
to make.  Telcom states, however, that it must relocate the station because the owner of the tower on
which Telcom leases antenna space plans to dismantle the tower.  Telcom further states that Marathon,
Florida is a sparsely inhabited area of the Florida Keys and that the tower structure to which it is moving
is the closest suitable location.  Telcom also states that it will use essentially the same equipment at the
new location and that, therefore, the cost to an ET licensee of relocating Station WHO466 will not
increase as a result of the move.

                         III.  DISCUSSION

     4.  Section 101.81 of the Commission's Rules provides that major modifications to existing FMS
systems will be authorized on a secondary basis to ET systems.  Telcom proposes a change of sixteen
seconds in the location of Station WHO466, which is a major modification.  Therefore, Telcom
correctly notes that it needs a waiver of Section 101.81 of the Rules in order to retain primary status for
the station.  One of the instances in which we may grant a request for waiver is 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 according secondary
status to Station WHO466 would be inequitable, and that Telcom has no reasonable alternative.

     5.  First, we find it highly significant that, according to Telcom, the relocation is caused by
circumstances beyond its control, i.e., the owner of its current tower plans to dismantle the tower.  We
also find significant Telcom's representation that its station is located in a sparsely populated area of the
Florida Keys and that its proposed new site is the closest suitable location.  Based on the record before
us, we find that this case presents unusual circumstances and that Telcom has no option but to relocate
Station WHO466.  

     6.  We also find, based on the record before us, that it would be inequitable to accord secondary
status to Station WHO466 upon its relocation.  First, as stated above, Telcom states that the relocation is
caused by circumstances beyond its control and that it has chosen the closest suitable location to its old
site.  Second, it appears that Telcom is not expanding or changing its system but is essentially
replicating Station WHO466 at the new site.  Telcom states that Station WHO466 will carry the same
traffic at its new location as it does at its current location, and that it will use essentially the same
equipment at its new location as it does at its current location.  Finally, because it is using essentially
the same equipment, Telcom claims that there will be little or no increase in the cost to an ET licensee of
relocating Station WHO466.  Based on these facts, we conclude that it would be inequitable to accord
secondary status to Station WHO466.  Accordingly, given the unusual circumstances of this case, we
grant Telcom a waiver of Section 101.81 of the Commission's Rules.

                      IV.  ORDERING CLAUSES

     7.  ACCORDINGLY, IT IS ORDERED that pursuant to Section 4(i) of the Communications Act
of 1934, as amended, 47 U.S.C.  154(i), and Sections 1.925, 1.945 and 101.69 of the Commission's
Rules, 47 C.F.R.  1.925, 1.945, 101.69, the Request for Waiver of Telcom Systems, Inc., filed on
January 27, 1998, IS GRANTED.

     8.  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