**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of Applications of | *  | FCC File Nos. 0000819591,    |
|                                  | *) | 0000819763, 0000819766,      |
| COUNTY OF KING                   | ** | 0000819767, 0000819768,      |
|                                  |    | 0000820761, 0000820766       |
| For Private Fixed Microwave      | *  |                              |
| Service Stations                 | *) |                              |
|                                  | ** |                              |
| And Requests for Waiver of       |    |                              |
| Section 101.81 of the            | *  |                              |
| Commission's Rules               | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: August 15, 2002 Released: August 21, 2002**

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

1\. *Introduction.* The County of King, Washington (King County)
operates a system of fixed microwave service (FMS) stations in the 2 GHz
band, and inadvertently allowed the licenses for seven of the stations
to expire.[^1] On March 21 and 22, 2002, King County filed applications
for new authorizations to operate the subject stations.[^2] In
connection with its applications, King County requests waivers of
Section 101.81 of the Commission's Rules that would otherwise result in
the authorization of the stations on a secondary basis.[^3] For the
reasons set forth below, we deny King County's Waiver Requests.

2\. *Background.* The Commission has reallocated portions of the 2 GHz
band from FMS to emerging technology (ET) services, including the
personal communications services.[^4] To this end, the Commission has
adopted certain transition rules.[^5] 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 and the need to provide ET licensees with a stable
environment in which to plan and implement new services.[^6]
Additionally, in adopting the transition rules, the Commission sought to
prevent ET licensees from bearing any additional costs of relocating FMS
licensees.[^7] Thus, 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 certain length of time, by the end of which the incumbents are to
relocate to other spectrum.[^8] 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.[^9] 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.[^10] Most minor modifications of FMS stations are also
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.[^11] 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\. King County failed to file applications to renew its licenses for
Stations WEH835, WNEE805, WNTU401, WLG68, WED938, WNEE804, and WLG66.
Thus, the licenses expired by their terms between February 18, 1999 and
February 1, 2000. On March 21 and 22, 2002, King County filed new
applications for new licenses for the subject stations.[^12] King County
concurrently filed the Waiver Requests seeking grant of a waiver of the
Commission rules that provide that new FMS stations in the 2 GHz band
are authorized on a secondary basis to ET licenses.[^13]

4\. *Discussion.* In this case, while the stations at issue were
originally authorized with primary status, King County allowed its
licenses to operate the stations to expire. King County requests a
waiver of the rules so that its new licenses for the stations can be
accorded primary status. We may grant a request for waiver when (i) the
underlying purpose of the rule(s) would not be served or would be
frustrated by application to the instant case, and a grant of the
requested waiver would be in the public interest; or (ii) 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.[^14] For the
reasons set forth below, we conclude that grant of the requested waiver
is not warranted under the circumstances presented.

5\. Significantly, King County fails to provide any explanation as to
why the licenses were allowed to expire, other than to state that the
licenses were "mistakenly not renewed at the appropriate time."[^15]
Thus, it appears that the licenses expired as a result of King County's
unexplained failure to renew the licenses in a timely manner. Each
licensee bears the exclusive responsibility for filing a timely renewal
application.[^16] We have previously held that an inadvertent failure to
renew a license in a timely manner does not constitute a unique or
unusual circumstance that renders application of the 2 GHz band
licensing rules inequitable, unduly burdensome, contrary to the public
interest, or leaves the applicant with no reasonable alternative.[^17]
In addition, the Commission has determined that a licensee will not be
afforded special consideration when the licensee fails to file a timely
renewal application solely because it engages in public safety
activities.[^18] King County also fails to provide any reason concerning
why a waiver grant is warranted under the circumstances presented.[^19]
The Waiver Request contains a general statement that "these links
provide critical communications service to the people of King
County,"[^20] without any further discussion. Such statement is an
insufficient showing that a waiver is warranted. Thus, we find that King
County has failed to make a sufficient demonstration that grant of a
waiver is warranted.[^21]

6\. *Conclusion.* Based on the record in this proceeding, we conclude
that King County has failed to demonstrate that grant of a waiver of
Section 101.81 of the Commission's Rules is warranted under the
circumstances presented. We therefore deny its requests for a waiver of
Section 101.81 of the Commission's Rules.

7\. ACCORDINGLY, IT IS ORDERED that pursuant to Section 4(i) of the
Communications Act of 1934, 47 U.S.C. § 154(i), and Sections 1.925 and
101.69 of the Commission's Rules, 47 C.F.R. §§ 1.925, 101.69, the
Requests of King County for waiver of Section 101.81 of the Commission's
Rules, filed March 21 and 22, 2002, ARE DENIED.

8\. IT IS FURTHERED ORDERED that applications FCC File Nos. 0000819591,
0000819763, 0000819766, 0000819767, 0000819768, 0000820761, 0000820766
SHALL BE REFERRED to the Licensing and Technical Analysis Branch of the
Public Safety and Private Wireless Division for processing consistent
with this *Order* and the applicable Commission Rules.

9\. 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]: The call signs associated with the former licenses were 1) WEH835
    (Sobieski, Washington); 2) WNEE805 (Norway Hill, Washington); 3)
    WNTU401 (Top Hat, Washington); 4) WLG68 (County Courthouse,
    Washington); 5) WED938 (Harbor View, Washington); 6) WNEE804 (Island
    Cross, Washington); and 7) WLG66 (Squak Mountain, Washington).

[^2]: FCC File Nos. 0000819591, 0000819763, 0000819766, 0000819767,
    0000819768 (filed Mar. 21, 2002) and 0000820761, 0000820766 (filed
    Mar. 22, 2002) (Applications) and associated Waiver Requests (Waiver
    Requests).

[^3]: *See* Waiver Requests.

[^4]: 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*).

[^5]: *See* 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 ¶ 5.

[^6]: *ET First Report and Order*, 7 FCC Rcd at 6886 ¶ 5, 6891 ¶ 30.

[^7]: 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*, WT Docket No. 95-157, 11
    FCC Rcd 8825, 8867-69 ¶¶ 86-88 (1996) (*Cost Sharing First Report
    and Order*).

[^8]: 47 C.F.R. §§ 101.69(b), 101.79(a). *See also ET First Report and
    Order*, 7 FCC Rcd at 6886 ¶ 5.

[^9]: *See* 47 C.F.R. §§ 101.69(a), 101.71-101.77

[^10]: 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 and First Report and Order*,
    11 FCC Rcd at 8869 ¶ 89. Thus, an incumbent operating under a
    secondary authorization must cease operations if it poses an
    interference problem to an ET licensee. *Id*.

[^11]: 47 C.F.R. § 101.81.

[^12]: Applications.

[^13]: Waiver Requests.

[^14]: 47 C.F.R. § 1.925(b)(3).

[^15]: *See* Waiver Requests.

[^16]: *See* Biennial Review \-- Amendment of Parts 0, 1, 13, 22, 24,
    26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to
    Facilitate the Development and Use of the Universal Licensing System
    in the Wireless Telecommunications Services, *Memorandum Opinion and
    Order on Reconsideration*, WT Docket No. 98-20, 14 FCC Rcd 11476,
    11485 ¶ 21 (1999); Amendment of Parts 1 and 90 of the Commission's
    Rules Concerning the Construction, Licensing, and Operation of
    Private Land Mobile Radio Stations, *Report and Order*, PR Docket
    No. 90-481, 6 FCC Rcd 7297, 7301 n.41 (1991) (*PLMR R&O*).

[^17]: *See*, *e.g.*, County of Warren, *Order*, 16 FCC Rcd 20149, 20151
    ¶ 5 (WTB PSPWD 2001); Sierra Pacific Power Company, *Order,* 16 FCC
    Rcd 188, 190-91 ¶ 6 (WTB PSPWD 2001); Plumas-Sierra Rural Electric
    Cooperative, *Order*, 15 FCC Rcd 5572, 5575 ¶ 9 (WTB PSPWD 2000);
    Duke Power Company, *Order*, 14 FCC Rcd 19431, 19434 ¶ 8 (WTB PSPWD
    1999).

[^18]: *See*, *e.g*., *PLMR R&O*, 6 FCC Rcd at 7301 ¶ 20.

[^19]: *See* Waiver Requests.

[^20]: *Id*.

[^21]: *See*, *e.g.*, County of Stanislaus, *Order*, 16 FCC Rcd 21956,
    21958 ¶ 5 (WTB PSPWD 2001).