Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | FCC File Nos. 9605280 and    |
|                                  | * | 9605281                      |
| PEGASUS CELLULAR TELEPHONE       | ) |                              |
|                                  | * |                              |
| COMPANY NO. 3 (NY-4), INC.       | * |                              |
|                                  |   |                              |
| Petition for Reconsideration of  | * |                              |
| Secondary                        | * |                              |
|                                  | ) |                              |
| Status and Reinstatement of      | * |                              |
| Primary Status                   | * |                              |
|                                  |   |                              |
| for Station WPJD312, Webster,    | * |                              |
| New York, and                    | * |                              |
|                                  | ) |                              |
| WLM409, Penfield, New York       | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted: March 24, 2000 Released: March 29, 2000**

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

**I. INTRODUCTION**

1.  On July 29, 1999, Pegasus Cellular Telephone Company No. 3 (NY-4),
    Inc. (Pegasus Cellular) requested reconsideration of the grant of
    secondary status for Station WLM409 in Penfield, New York, and
    Station WPJD312 in Webster, New York.[^1] For the reasons discussed
    herein, we deny Pegasus Cellular's petition.

**II. BACKGROUND**

2.  *Reallocation of the 2 GHz Band.* On January 16, 1992, the
    Commission proposed to reallocate portions of the 2 GHz band from
    fixed microwave services (FMS) to emerging technology (ET) services,
    including the personal communications services (PCS).[^2] The
    Commission intended to reaccommodate the FMS licensees in a manner
    that would be most advantageous for the incumbent licensees, least
    disruptive to the public and most conducive to the introduction of
    new services.[^3] Accordingly, first, to preserve the availability
    of the existing vacant 2 GHz spectrum, the Commission proposed to
    license all new facilities in the 2 GHz band on a secondary
    basis.[^4] Second, rather than immediately clearing the 2 GHz band
    of the incumbent FMS users, the Commission proposed to permit 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 were to relocate to another portion of the
    spectrum.[^5] The Commission also proposed to provide the ET
    licensees with the option of requiring the FMS incumbents to
    relocate sooner and paying the additional costs caused by the
    earlier relocation.[^6] One practical effect of the Commission\'s
    proposal was that incumbent FMS licensees that were authorized on a
    primary basis would have the costs of relocating to other bands paid
    for by the new ET licensees if the ET licensees forced them to
    relocate. On the other hand, FMS licensees that were authorized on a
    secondary basis would be treated differently.

3.  On May 14, 1992, the Microwave Branch, Licensing Division of the
    former Private Radio Bureau (Microwave Branch) issued a *Public
    Notice* stating that while new facilities in the 2 GHz band would be
    given secondary status, secondary status would not be accorded to
    those stations licensed prior to January 16, 1992, as to which the
    FMS licensee made certain minor or technical modifications of its
    facilities.[^7] The *Public Notice* further indicated that secondary
    status would not be accorded in situations where additional links
    were required to complete a communications network or where new
    facilities and/or frequencies were operationally connected to a
    network system licensed prior to January 16, 1992, where the
    applicant made a valid showing of its need for the new
    facilities.[^8] Later that year, the Commission affirmed this
    approach.[^9] As a result, licensees of existing 2 GHz facilities
    could make certain modifications and minor extensions and retain
    primary status, but major extensions or expansions would result in a
    station being accorded secondary status unless a special showing of
    need was made to justify primary status.[^10]

4.  On October 12, 1995, the Commission sought comment on whether it
    should continue to grant any 2 GHz FMS applications on a primary
    basis.[^11] The Commission stated that to the extent practicable it
    would continue to apply the current rules governing primary and
    secondary status to pending modification applications, but that
    subsequently filed applications would be granted primary status only
    for modifications that would not add to the relocation costs of PCS
    licensees.[^12] Thus, the Commission set forth a limited list of
    technical changes that would be granted primary status, and stated
    that any other modifications would be permitted only on a secondary
    basis unless the incumbent made a special showing of need to justify
    primary status and established that the modifications would not add
    to the relocation costs of PCS licensees.[^13]

5.  On April 25, 1996, the Commission adopted the current regulations
    regarding the licensing of FMS systems in the 2 GHz band,[^14] which
    went into effect August 1, 1996.[^15] As a result, major
    modifications and extensions are licensed on a secondary basis, and
    primary status is granted only for a limited number of technical
    changes.[^16] All other minor modifications 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 the new ET licensees.[^17]

6.  *Pegasus Cellular's License Applications.* On April 15, 1996,
    Pegasus Cellular filed applications to modify the licenses for FMS
    Stations WLM409 and WPJD312 in order that they be newly linked via
    the 2 GHz band.[^18] On June 14, 1996, we granted these applications
    and re-issued the licenses for Stations WLM409 and WPJD312 with a
    secondary status condition. On March 29, 1999, Pegasus Cellular
    filed an application to modify the license for Station WLM409 to
    delete the 2 GHz path which connected Station WLM409 with Pegasus
    Cellular's Station WLM408.[^19] We granted this application on May
    17, 1999, and re-issued the license with a secondary status
    condition. On July 29, 1999, Pegasus Cellular requested that the
    licenses for Stations WLM409 and WPJD312 be reinstated to primary
    status.[^20]

**III. DISCUSSION**

7.  We note, as an initial matter, that Pegasus Cellular filed its
    petition for reconsideration on July 29, 1999, more than three years
    after the secondary status condition was first imposed on the
    licenses for Stations WLM409 and WPJD312. Ordinarily, petitions for
    reconsideration of the conditional grant of a license must be filed
    within 30 days from the date of such grant.[^21] But as we
    determined in *Contel Cellular of Nashville, Inc.* (*Contel*), the
    language placed on the 2 GHz licenses did not provide sufficient
    notice to the affected 2 GHz license holders that their licenses
    were subject to a secondary status condition.[^22] Accordingly, for
    the reasons explained in *Contel*, Pegasus Cellular's petition is
    considered timely and will be addressed on its merits.[^23]

8.  Pegasus Cellular argues that Stations WLM409 and WPJD312 should have
    retained primary status after the 1996 modification because the new
    link was operationally connected to a network system licensed prior
    to January 16, 1992.[^24] In support of its argument, it cites the
    Microwave Branch's 1992 *Public Notice*.[^25] We note, however, that
    at the time Pegasus Cellular filed its applications, the licensing
    policy announced in the 1992 *Public Notice* had been superseded by
    the policy set forth in the Commission's 1995 *NPRM*.[^26] Under the
    Commission\'s 2 GHz rules that were then in effect, primary status
    would be granted for a limited number of technical changes, and
    secondary status would be granted for all other modifications unless
    the incumbent made a special showing of need to justify primary
    status and established that the modifications would not add to the
    relocation costs of PCS licensees.[^27] We find that linking
    Stations WLM409 and WPJD312 via the 2 GHz band was not among the
    limited number of technical changes that could be granted with
    primary status. Therefore, primary status would have been
    appropriate only upon a special showing of need to justify primary
    status and a demonstration that the modification would not add to
    the relocation costs of PCS licensees. We find that the initial
    application did not include the requisite showing. Further, the
    petition for reconsideration offers no basis to support either
    required showing.[^28] Accordingly, we conclude that the grant of
    Pegasus Cellular\'s licenses for Stations WLM409 and WPJD312 with a
    secondary status condition was appropriate and consistent with the
    Commission's rules and policies then in effect concerning 2 GHz
    licensing.[^29]

**IV. ORDERING CLAUSES**

9.  ACCORDINGLY, IT IS ORDERED that pursuant to Sections 4(i) and 405 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    405, and Sections 1.106 and 101.69 of the Commission\'s Rules, 47
    C.F.R. §§ 1.106, 101.69, the Petition for Reconsideration of Pegasus
    Cellular Telephone Company No. 3 (NY-4), Inc., filed on July 29,
    1999, IS DENIED.

10. 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

[^1]: Letter from Kellye Abernathy, Director, Regulatory Services,
    Southwestern Bell Mobile Systems, Inc., SBC Wireless, Inc., Parent
    Company of Pegasus Cellular Telephone Company No. 3 (NY-4), Inc., to
    Albert Knerr, Chief of Technical Analysis Section, Common Carrier
    Domestic Radio, Federal Communications Commission (filed July 29,
    1999) (Petition).

[^2]: Redevelopment of Spectrum to Encourage Innovation in the Use of
    New Telecommunications Technologies, ET Dkt. No. 92-9, *Notice of
    Proposed Rule Making*, 7 FCC Rcd 1542 (1992) (*ET NPRM*).

[^3]: *Id*. at 1545 ¶ 22.

[^4]: *Id*. Secondary operations may not cause interference to
    operations authorized on a primary basis (*e.g.*, the new ET
    licensees) and are not protected from interference from primary
    operations. *See* 47 C.F.R. § 101.3.

[^5]: *ET NPRM*, 7 FCC Rcd at 1545 ¶ 24.

[^6]: *Id.*

[^7]: Two Gigahertz Fixed Microwave Licensing Policy, *Public Notice*,
    Mimeo No. 23115 (May 14, 1992).

[^8]: *Id*.

[^9]: 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 Dkt. No. 92-9, 7 FCC Rcd
    6886, 6891-92 ¶ 31 (1992).

[^10]: *Id*.

[^11]: Amendment to the Commission\'s Rules Regarding a Plan for Sharing
    the Costs of Microwave Relocation, WT Dkt. No. 95-157, *Notice of
    Proposed Rule Making*, 11 FCC Rcd 1923, 1925 ¶ 2 (1995) (*Cost
    Sharing NPRM*).

[^12]: *Id*. at 1964 ¶ 89.

[^13]: *Id*. at 1926 ¶ 4. The Commission noted that this new list of
    minor technical modifications was more limited than the
    modifications listed in the 1992 *Public Notice*.

[^14]: Amendment to the Commission\'s Rules Regarding a Plan for Sharing
    the Costs of Microwave Relocation, WT Dkt. No. 95-157, *First Report
    and Order and Further Notice of Proposed Rule Making*, 11 FCC Rcd
    8825, 8867-69 ¶¶ 86-89 (*Cost Sharing First Report and Order*); 47
    C.F.R. § 101.81.

[^15]: 61 Fed. Reg. 29679, 29680, 29695 (1996).

[^16]: *Cost Sharing First Report and Order*, 11 FCC Rcd at 8868 ¶ 86;
    47 C.F.R. § 101.81.

[^17]: *Cost Sharing First Report and Order*, 11 FCC Rcd at 8868 ¶ 86;
    47 C.F.R. § 101.81.

[^18]: *See Public Notice*, Report No. 1185, Wireless Telecommunications
    Bureau Receipts and Disposals (rel. May 1, 1996).

[^19]: *See Public Notice*, Report No. 2036, Wireless Telecommunications
    Bureau Receipts and Disposals (rel. Apr. 13, 1999).

[^20]: Petition at Exhibit 1.

[^21]: 47 C.F.R. § 94.41 (1995) (currently 47 C.F.R. § 1.945(e)); *see*
    47 U.S.C. § 405.

[^22]: *See* Contel Cellular of Nashville, Inc.*, Order on
    Reconsideration*, 14 FCC Rcd 6302, 6305-06 ¶ 10 (WTB PSPWD 1999).

[^23]: *Id.*

[^24]: Petition at Exhibit 1.

[^25]: *Id.*

[^26]: *See supra* ¶ 4. *Cf.* Cal-One Cellular L.P., *Order on
    Reconsideration*, 14 FCC Rcd 13528, 13530 ¶ 6 (WTB PSPWD 1999)
    (declining to apply policy announced in the 1992 *Public Notice* to
    an application filed after that policy had been superseded).

[^27]: *Cost Sharing NPRM*, 11 FCC Rcd at 1926 ¶ 4.

[^28]: *See, e.g.,* Highland Cellular, Inc., *Order on Reconsideration*,
    14 FCC Rcd 19573, 19576 ¶ 9 (WTB PSPWD 1999) (Highland Cellular made
    a special showing of need when it argued that the emergency nature
    of the 911 service that it provides requires immediate and clear
    access to the cellular telephone system and that it therefore needs
    primary status for the 2 GHz stations that relay the emergency 911
    messages).

[^29]: Because we conclude that the imposition of secondary status in
    1996 was proper, we need not address Pegasus Cellular's argument
    that the 1999 modification to Station WLM409 should not have
    resulted in secondary status and, thus, consider such argument to be
    moot.