Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) MEDINA ELECTRIC COOPERATIVE, INC. ) ) Request for Reinstatement with Primary Status ) FCC File No. 731488 of Station WEG432 in Pearsall, Texas ) ) Petition for Reconsideration of Grant of ) FCC File Nos. 728336 Secondary Status for Station KFB43 in ) 728337 Dilley, Texas, and Station WNEW346 ) in D'Hanis, Texas ) ORDER ON RECONSIDERATION Adopted: October 26, 1999 Released: October 26, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order on Reconsideration, we grant Medina Electric Cooperative, Inc.'s (Medina) November 4, 1996, request for reinstatement with primary status of the license for Station WEG432 in Pearsall, Texas, a 2 GHz fixed microwave service (FMS) facility that was canceled on June 26, 1996. We also grant Medina's March 4, 1997, petition for reconsideration of the Division's Licensing and Technical Analysis Branch (Branch) action granting the licenses for 2 GHz FMS Stations KFB43 in Dilley, Texas, and WNEW346 in D'Hanis, Texas, with secondary status. For the reasons discussed below, we will re-issue these licenses with primary status. II. BACKGROUND 2. On April 25, 1996, the Commission adopted new regulations regarding the licensing of FMS systems in the 2 GHz band, which are currently in effect. Extensions and major modifications will be licensed on a secondary basis to emerging technology (ET) operations, including the personal communications services (PCS). All other 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 ET licensees. Primary status will be 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 and location changes of up to 2 seconds. 3. On January 16, 1992, when the Commission proposed to reallocate the 2 GHz band from FMS to ET users, Medina's FMS Station WEG432 had 2 GHz paths to Stations WEG433 in Goldfinch, Texas, KFB43, and WNEW346. On March 20, 1996, after Medina successfully negotiated a voluntary relocation agreement with PCS PrimeCo, the winning bidder for a PCS license for Block B in the San Antonio Metropolitan Trading Area, Medina filed an application to modify the license for Station WEG432 to relocate to the 6 GHz band the 2 GHz path which connected Station WEG432 to Station WEG433. Medina also requested that a slight error in geographic coordinates and ground elevation for Station WEG432 be corrected. On June 4, 1996, this application to modify Station WEG432 was granted with primary status. The license for Station WEG432 was canceled on June 26, 1996, three weeks after the modification application had been granted. According to Medina, it received an FCC Form 402R to renew the license for Station WEG432 based on its pre-modification renewal date. A Medina employee apparently then returned the form marked void because the employee assumed that the station had been assigned a new call sign when its modification application was granted. On November 4, 1996, Medina requested that the license for Station WEG432 be reinstated with primary status. Medina currently has special temporary authority (STA) to operate Station WEG432. This STA is scheduled to expire on September 10, 1999. 4. The data correction in geographic coordinates and ground elevation for Station WEG432 led Medina to discover corresponding errors on the licenses for Stations KFB43 and WNEW346. Therefore, on July 19, 1996, Medina requested that the licenses for Stations KFB43 and WNEW346 be modified to correct these errors. With respect to Station KFB43, Medina requested corrections to the effective isotropic radiated power (EIRP) and the azimuth. Medina requested corrections to the EIRP and the antenna gain for Station WNEW346. Both stations also had their emission designators converted in order to remain coordinated with Station WEG432, which had its emission designator converted on June 4, 1996. No change in equipment operating parameters occurred during this conversion. On January 22, 1997, we granted the applications and issued modified licenses for Stations KFB43 and WNEW346 with secondary status. On March 4, 1997, Medina requested that the licenses for these stations be re-issued with primary status. III. DISCUSSION 5. Request for Reinstatement of Station WEG432 with Primary Status. The license for Station WEG432 was canceled on June 26, 1996. Medina did not submit its request for reinstatement until November 4, 1996, over four months after the station's license was cancelled. 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, such as Medina, 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 be subject to stricter review and will not be routinely granted. 6. When reviewing the unusual circumstances of this case, we find that reinstatement of Station WEG432 nunc pro tunc is warranted. It is of particular relevance that the cancellation of Station WEG432 was effected erroneously by a Medina employee on the mistaken assumption that the station had been assigned a new call sign after its modification application was granted. Thus, it appears that Medina was not aware that its operating authority would terminate before the license's scheduled expiration date. Moreover, we find that it is inconsistent with the facts presented herein that Medina intended to cancel the authorization for Station WEG432, particularly after it had negotiated a voluntary relocation agreement with PCS PrimeCo regarding the relocation of one of the 2 GHz paths for Station WEG432. This voluntary relocation agreement was reflected in Medina's application to modify Station WEG432. We believe that Medina's negotiation of a voluntary relocation agreement demonstrates both its intent to maintain the operation of Station WEG432 and its compliance with the Commission's policy of reallocating the 2 GHz band from FMS to ET use. Furthermore, we do not believe that denying Medina's reinstatement request would further the public interest. In this connection, we note that Medina provides electric service to thousands of mostly rural customers that are scattered over more than 20,000 square miles of South Central Texas. Therefore, it appears that Station WEG432 is part of a communications system that assures the safety, reliability and continuity of Medina's electric service, in an area where reliable common carrier communications services appear not to be readily available. In view of these facts, we find that a grant of the reinstatement request is in the public interest. Accordingly, we conclude that the license for Station WEG432 should be reinstated nunc pro tunc with primary status. 7. Petition for Reconsideration of Grant of Secondary Status for Stations KFB43 and WNEW346. Medina's licenses for Stations KFB43 and WNEW346 were issued with a secondary status condition on January 22, 1997. Medina did not file its petition for reconsideration, however, until March 4, 1997. Ordinarily, licensees have only thirty days to seek reconsideration of a condition placed on their licenses, but, as we decided in Contel Cellular of Nashville, Inc., in the case of the secondary status conditions placed on 2 GHz FMS licenses, the language used did not provide sufficient notice to the affected licensees that their licenses were subject to a condition. Accordingly, for the reasons explained in Contel Cellular of Nashville, Inc., Medina's petition is properly considered timely and will be addressed on its merits. 8. A data correction for Station WEG432 led Medina to discover errors on the licenses for Stations KFB43 and WNEW346. In order for Stations KFB43 and WNEW346 to remain fully coordinated with Station WEG432, the data for EIRP, azimuth, and antenna gain needed to be corrected. Under Section 101.81(d) of the Commission's Rules, existing FMS facilities can make any data correction and still maintain primary status as long as the correction does not change the location of the existing facility. In this case, the data corrections that were granted to Stations KFB43 and WNEW346 did not change the location of these stations. Accordingly, we will grant Medina's petition to reinstate primary status to Stations KFB43 and WNEW346. IV. ORDERING CLAUSES 9. ACCORDINGLY, IT IS ORDERED that pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), the request for reinstatement of the license for Station WEG432 filed by Medina Electric Cooperative, Inc. on November 4, 1996, IS GRANTED and the license will be re-issued nunc pro tunc with primary status. 10. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 405, and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, the petition for reconsideration filed by Medina Electric Cooperative, Inc. on March 4, 1997, IS GRANTED and the licenses for Stations KFB43 and WNEW346 will be re-issued with primary status. 11. 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