*Pages 1--3 from Microsoft Word - 8579.doc* Federal Communications Commission DA 01- 1084 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of CORN BELT POWER COOPERATIVE Petition for Reconsideration of Change in Status of Licenses for Private Point- to- Point Microwave Service Stations WAP578, KAY54, KAY53, WJI81, and WJI80 and Waiver of Section 101.81 of the Commission’s Rules ) ) ) ) ) ) ) ) ) File Nos. 0000230128, 0000230148, 0000230140, 0000230136, 0000230133 ORDER ON RECONSIDERATION Adopted: April 24, 2001 Released: April 27, 2001 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. Introduction. On January 8, 2001, Corn Belt Power Cooperative (Corn Belt) filed a petition for reconsideration of a December 6, 2000 action by the Licensing and Technical Analysis Branch (Branch) of the Wireless Telecommunications Bureau’s Public Safety and Private Wireless Division granting license modifications, but changing the status of Stations WAP578, KAY54, KAY53, WJI81, and WJI80 1 from primary to secondary. 2 In the alternative, Corn Belt requests a waiver of the Commission’s Rules that would otherwise result in the reauthorization of the licenses on a secondary basis. For the reasons set forth below, we grant Corn Belt’s petition. 2. Background. The Commission has reallocated portions of the 2 GHz band from FMS to emerging technology (ET) services, including the personal communications services. 3 To this end, the Commission has adopted certain transition rules. 4 In doing so, the Commission balanced the needs of incumbent FMS licensees to continue to operate their systems with the need to conserve vacant 2 GHz spectrum for use by ET licensees, to provide ET licensees with a stable environment in which to plan and implement new services, and to prevent ET licensees from bearing additional costs in connection with relocating FMS licensees. 5 Thus, rather than immediately clearing the 2 GHz band of the incumbent FMS 1 The locations for these stations are as follows: WAP578 (Irvington, Iowa); KAY54 (Klemme, Iowa); KAY53 (Hampton, Iowa); WJI81 (Dumont, Iowa); and , WJI80 (Plainfield, Iowa). 2 Corn Belt Petition for Reconsideration (filed Jan. 8, 2001) (Reconsideration Petition). 3 Redevelopment of Spectrum to Encourage Innovation in the Use of New Telecommunications Technologies, First Report and Order and Third Notice of Proposed Rule Making, ET Docket No. 92- 9, 7 FCC Rcd 6886 (1992) (ET First Report and Order). 4 47 C. F. R. §§ 101.69- 101.81. The rules are 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. ET First Report and Order, 7 FCC Rcd at 6886- 87 ¶ 5. 5 ET First Report and Order, 7 FCC Rcd at 6886 ¶ 5, 6891 ¶ 30; Amendment to the Commission’s Rules Regarding a Plan for Sharing the Costs of Microwave Relocation, First Report and Order and Further Notice of (continued….) 1 Federal Communications Commission DA 01- 1084 2 users, FMS incumbents have been 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 it is anticipated that the incumbents would relocate to other spectrum. 6 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. 7 In addition, we authorize new FMS stations, extensions of existing FMS systems, and major modifications of existing FMS stations only on a secondary basis to ET systems. 8 Primary status is 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. 9 All other minor modifications are authorized on a secondary basis unless the licensee can demonstrate that it needs primary status and that the modifications will not add to the relocation costs to be paid by the ET licensee. 10 The result is that while incumbent FMS licensees are able to continue operating their systems with primary status – as those systems currently exist – any expansions and most modifications to the systems result in secondary status. 3. On September 29, 2000, Corn Belt filed applications seeking modifications of its licenses to operate Stations WAP578, KAY54, KAY53, WJI81, WJI80. 11 In the modification applications, Corn Belt proposed changes in the coordinates of the station sites. It states that the purpose of the changes was to reflect more accurate and updated location information that Corn Belt had obtained as a result of more accurate mapping techniques. 12 On December 6, 2000, the Branch granted the modification applications, but changed the license status of the stations from primary to secondary. On January 8, 2000, Corn Belt filed its reconsideration petition, requesting that the Commission reconsider the Branch’s change of license status for the respective stations. 13 4. Discussion. In its Reconsideration Petition, Corn Belt asserts that its license modification applications should have been granted with primary status, pursuant to Section 101.81 of the (Continued from previous page) Proposed Rule Making, ET Docket No. 95- 157, 11 FCC Rcd 8825, 8867- 69 ¶¶ 86- 88 (1996) (Cost Sharing First Report and Order). 6 47 C. F. R. §§ 101.69( b), 101.79( a). See also ET First Report and Order, 7 FCC Rcd at 6886 ¶ 5. 7 See 47 C. F. R. §§ 101.69( a), 101.71- 101.77. 8 47 C. F. R. § 101.81. Secondary operations may not cause interference to operations authorized on a primary basis (e. g., the new ET licensees) and they are not protected from interference from primary operations. Cost Sharing First Report and Order, 11 FCC Rcd at 8869 ¶ 89. Thus, an incumbent operating under a secondary authorization must cease operations if it causes interference to an ET licensee. Id. 9 Cost Sharing First Report and Order, 11 FCC Rcd at 8868 ¶ 88; 47 C. F. R. § 101.81( d). 10 47 C. F. R. § 101.81. 11 Reconsideration Petition at 1. 12 Reconsideration Petition at 1- 2. According to Corn Belt, the coordinates of the stations, all of which were constructed prior to 1974, were updated to reflect updated mapping information. Id. at 2. Corn Belt asserts that the original coordinates for these sites were established in 1959 and 1969 utilizing 1: 250,000 topographical maps. Id. Corn Belt states that the corrections to the coordinates were made to reflect improved location information available to Corn Belt from newer 1: 24,000 maps. Id. 13 Id. at 1. 2 Federal Communications Commission DA 01- 1084 3 Commission’s Rules, because the modifications reflected in the applications were data corrections and did not involve a change in the location of an existing facility. 14 Corn Belt states that reinstating the licenses with primary status will not result in additional expenses for ET licensees, as the stations have not moved and only their coordinates have been updated. 15 5. Under the Commission's Rules, secondary status is not applied to data corrections which do not involve a change in the location of an existing facility. 16 We are persuaded that the corrections to the coordinates in the database did not involve an actual change in the location of the existing facilities; rather, they merely provided more accurate information regarding the stations’ locations. Therefore, we conclude that Corn Belt’s licenses for Stations WAP578, KAY54, KAY53, WJI81, and WJI80 should not have been accorded secondary status as a result of the Branch’s modification applications discussed herein. Consequently, we will reissue the licenses with primary status. 6. 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, 1.925, and 101.81 of the Commission’s Rules, 47 C. F. R. §§ 1.106, 1.925, 101.81, the Petition for Reconsideration, filed on January 8, 2001 by Corn Belt Power Cooperative IS GRANTED, and the licenses for Stations WAP578, KAY54, KAY53, WJI81, and WJI80 will be reissued with primary status. 7. This action is taken under designated 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 Telecommunication Bureau 14 Reconsideration Petition at 2. 15 Id. 16 47 C. F. R. § 101.81( d); see Cost Sharing First Report and Order, 11 FCC Rcd at 8868 ¶ 88; see also Utilicorp United, Inc., Order on Reconsideration, 14 FCC Rcd 18979, 18981 ¶ 5 (WTB PSPWD 1999). 3