*Pages 1--3 from Microsoft Word - 11724.doc* Federal Communications Commission DA 01- 1729 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of BRAZOS ELECTRIC POWER COOPERATIVE, INC. Petition for Reconsideration of Change in Status of License for Private Operational Fixed Microwave Radio Service Station WNTT886, Kosse, Texas ) ) ) ) ) ) ) ) File No. 0000264442 ORDER ON RECONSIDERATION Adopted: July 17, 2001 Released: July 20, 2001 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Division: 1. Introduction. On March 23, 2001, Brazos Electric Power Cooperative, Inc. (Brazos) filed a petition for reconsideration of a February 14, 2001 action by the Licensing and Technical Analysis Branch (LTAB) of the Wireless Telecommunications Bureau’s Public Safety and Private Wireless Division granting Brazos’s November 17, 2000 license modification application, but changing the status of the 2.1 GHZ microwave paths of Fixed Microwave Service (FMS) Station WNTT886, Kosse, Texas, from primary to secondary. 1 Brazos requests that the Commission reinstate Station WNTT886’s 2.1 GHz microwave paths’ primary status nunc pro tunc. 2 For reasons stated below, we grant Brazos’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 users, FMS incumbents have been permitted to continue to occupy the band on a co- primary basis with 1 Brazos Electric Power Cooperative, Inc. Petition for Reconsideration (filed March 23, 2001) (Reconsideration Petition). 2 Id. at 1. 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 Proposed Rule Making, ET Docket No. 95- 157, 11 FCC Rcd 8825, 8867- 69 ¶¶ 86- 88 (1996) (Cost Sharing First Report and Order). 1 Federal Communications Commission DA 01- 1729 2 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 that 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 November 17, 2000, Brazos filed a license modification application seeking Commission authority to add three 6. 7 GHz microwave paths to Station WNTT886. 11 It also proposed changes in the coordinates of the station site. 12 It states that the purpose of the coordinate changes was to reflect more accurate and updated location information that Brazos had obtained as a result of a revised site survey. 13 On January 24, 2001, LTAB granted the subject license modification application to add the requested 6.7 GHz microwave paths and modify the station coordinates, leaving intact the primary status of the underlying 2.1 GHz microwave paths. By letter dated February 9, 2001, however, LTAB informed Brazos that it was setting aside its January 24, 2001 action because the application had been granted without the required special condition, with respect to the 2.1 GHz paths, stating that the modification application was granted with secondary status. 14 On February 14, 2001, the Bureau granted Brazos’s license modification application, but changed the status of Brazos’s 2.1 GHz microwave paths from primary to secondary. On March 23, 2001, Brazos filed its Reconsideration Petition, requesting that we reconsider LTAB’s decision and reinstate primary status for the 2.1 GHz microwave paths. 15 4. In its Reconsideration Petition, Brazos asserts that its license modification application should have been granted with primary status, pursuant to Section 101.81 of the Commission’s Rules, because the modifications reflected in the application were data corrections and did not involve a change in the location of an existing facility. 16 Brazos states that reinstating the licenses with primary status will 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 Id. at 3. 13 Id. 14 See Letter from Mary M. Shultz, Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Branch, Wireless Telecommunications Bureau, to Charles Derrick, P. E., Brazos Electric Power Cooperative, Inc., dated February 9, 2001 (Reference Number PS& PWD- LTAB- 650). 15 Reconsideration Petition at 2. 16 Id. at 2- 5. 2 Federal Communications Commission DA 01- 1729 3 not result in additional expenses for ET licensees, as the station has not moved and only its coordinates have been updated. 17 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. 18 We are persuaded that the corrections to the geographic coordinates of Station WNTT886 did not involve an actual change in the location of the existing facility; rather, they merely provided more accurate information regarding Station WNTT886’s location. Therefore, we conclude that Brazos’s license for Station WNTT886 should not have been accorded secondary status, as a result of the LTAB’s action 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 and 101.81 of the Commission’s Rules, 47 C. F. R. §§ 1.106, 101.81, the Petition for Reconsideration, filed on March 23, 2001 by Brazos IS GRANTED, and the license for Station WNTT886 will be reissued with primary status for the subject 2.1 GHz microwave paths. 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 17 Id. 18 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 (1999); Corn Belt Power Cooperative, Order on Reconsideration, DA 01- 1084 ¶ 5 (WTB PSPWD rel. Apr. 27, 2001). 3