**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. 0000053376          |
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| Kittitas Valley Paging Limited   | ** |                              |
| Partnership                      |    |                              |
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| For Renewal or Reinstatement of  | *) |                              |
| the License for Two-Way Paging   | ** |                              |
| Station KNKI817 in the Paging    |    |                              |
| and Radiotelephone Service at    | *  |                              |
| Ellensburg, Washington           | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: March 27, 2002 Released: March 28, 2002**

By the Chief, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau:

**I. INTRODUCTION**

1\. In this order, we address a Petition for Reconsideration (Petition)
filed by Kittitas Valley Paging Limited Partnership (Kittitas) on April
7, 2000. Kittitas seeks reconsideration of an action taken by the
Licensing and Technical Analysis Branch (Branch) of the Commercial
Wireless Division (Division) which: 1) dismissed the above-captioned
application for renewal or reinstatement; and 2) denied Kittitas's
alternative request for waiver to reauthorize call sign KNKI817.[^1] As
discussed below, we find that Kittitas's renewal application was
properly dismissed. However, we grant in part Kittitas's petition for
reconsideration of the denial of its request for waiver, subject to
certain terms and conditions set forth herein. These license conditions
will include a requirement that Kittitas operate on a secondary,
non-interference basis.

**II. BACKGROUND**

2\. On April 1, 1986, the Commission granted Kittitas's application to
operate new Public Land Mobile (PLM) base stations on 158.10 MHz at
Ellensburg and Roslyn, WA under call sign KNKI817. The authorization for
both facilities expired on July 1, 1988[^2] pursuant to Kittitas's
license, the *1983 Licensing Order*[^3] and a clarifying 1988 Commission
Public Notice*.*[^4] The *1983 Licensing* *Order* extended the license
terms of all existing PLM licensees for an additional five years,
resulting in a total license term of ten years for those authorizations.
As a result, existing PLM station licenses expired on uniform dates
which, for wireline common carriers, was July 1, 1988.[^5]

3\. In 1987, Kittitas filed a notification of construction of facilities
indicating that it constructed and made operational one of the two
licensed facilities, *i.e*. the Ellensburg, WA site.[^6] Kittitas did
not file a renewal application for call sign KNKI817 on or before the
July 1, 1988 expiration date. On February 11, 1998, Kittitas filed a
renewal application for call sign KNKI817, accompanied by a "Petition
for Leave to File a Late-Filed License Renewal Application, or in the
Alternative, New Facilities Application and Request for Waiver of the
Paging Freeze" (Waiver Request).[^7] In its Waiver Request, Kittitas
stated that it was unaware of the July 1, 1988 expiration date because
it did not receive a covering license from the Commission listing an
expiration date.[^8] Kittitas also stated that it reasonably believed
that its license to operate at the Ellensburg, WA site expired on July
1, 1996 because: 1) the *1983 Licensing Order* only applied to then
existing licensees, not Kittitas, as its license was not granted until
1986; and 2) the Commission had indicated that PLM licenses were to be
granted for a ten-year period.[^9]

In the alternative, Kittitas requested a waiver to file for authority to
operate a one-way station on 158.10 MHz at Ellensburg, WA.[^10]

4\. On February 28, 2000, the Branch denied Kittitas's application
seeking renewal, stating that Kittitas was charged with knowledge of
former rule section 22.45 and the *1983* *Licensing* *Order,* which
established a July 1, 1988 expiration date for PLM licenses designated
as wireline common carriers.[^11] The Branch also denied Kittitas's
request for waiver for failure to make the appropriate public interest
showing.[^12] On March 8, 2000, the Branch dismissed Kittitas's renewal
application by public notice.[^13]

5\. On April 7, 2000, Kittitas filed the instant Petition seeking
reconsideration of the dismissal action. In its Petition, Kittitas again
argues that it reviewed former section 22.45 of the rules and determined
that PLM licenses were valid for ten years and therefore Kittitas's
license could not have expired prior to July 1, 1996.[^14] Kittitas
argues that its request for renewal was only nineteen months late,
rather than ten years late, and therefore the Commission erred in not
reinstating the authorization or, in the alternative, granting a waiver
to permit the licensing of the station anew.[^15] Kittitas also argues
that the Commission granted a request for transfer of control of
Kittitas and that Kittitas reasonably believed this was in fact a grant
of its request for reinstatement of call sign KNKI817.[^16] Since
Kittitas filed its Waiver Request and Petition, upper and lower band
paging spectrum has been auctioned on a geographic basis, including
158.10 MHz in the Ellensburg, WA area.[^17]

**III. DISCUSSION**

6\. In the *1983 Licensing Order*, the Commission adopted rule section
22.45 and established uniform expiration dates on a service-by-service
basis for Part 21 and Part 22 stations. All PLM wireline common carrier
licenses were designated to expire on July 1 in the year of
expiration.[^18] The *1983 Licensing Order* extended existing licensees'
license terms for an additional five years, resulting in a total license
term of ten years for those licenses. Accordingly, all PLM wireline
licensees previously due to expire on July 1, 1983 were subject to an
extended uniform expiration date of July 1, 1988. Kittitas is correct
that the *1983 Licensing Order* extended the terms of *existing*
licensees, and did not expressly indicate that licenses granted after
the order's adoption date would also expire in 1988. Kittitas is wrong,
however, in interpreting the *1983 Licensing Order* to mean that each
newly granted license would have a ten-year term commencing with the
grant date of each individual license. Kittitas bases this
interpretation on the *1983 Licensing Order* statement that "in the
future, all common carrier and all fixed satellite licenses will be
issued for a period of ten years unless limited by rule or the actual
authorization." This interpretation is incorrect because the Commission
only issued PLM authorizations for ten year license terms after the
expiration of the remaining license term associated with the uniform
expiration date set forth in former rule section 22.45.[^19]

7\. In Kittitas's case, its authorization initially granted in 1986
expired in July 1988, the applicable uniform expiration date for that
service. Kittitas's argument that its authorization expired in July
1996, rather than July, 1988, is without merit. The Commission
eliminated any confusion that may have existed regarding the applicable
expiration dates for PLM wireline licenses granted after the adoption of
the *1983 Licensing Order*, but prior to the July 1, 1988 expiration
date, by issuing the *License Renewal PN* on April 21, 1988. The
*License Renewal PN* applied to all PLM wireline licensees (like
Kittitas), not just those licensees authorized at the time of the *1983
Licensing Order*, and specifically provided that "\[w\]ireline common
carriers are required to file renewal applications for Public Mobile
Service authorizations no earlier than 60 days but not less than 30 days
before July 1, 1988 ...."[^20] Kittitas was therefore required to renew
its authorization prior to the July 1, 1988 license expiration date.

8\. We find without merit Kittitas's argument that it did not receive a
covering license and therefore did not receive notice of the license
expiration. Kittitas states in its Petition that "...counsel inspected
the Commission's public station file for station KNKI817, which
inspection revealed that the Commission had apparently never issued a
license for station KNKI817...." A review of Commission licensing
records reflects a station status and file jacket copy, which is the
Commission's copy of duplicate information set forth on Kittitas's
license for call sign KNKI817. This document indicates that the
authorization for call sign KNKI817 was granted on August 20, 1987 and
that it expired July 1, 1988. The document was printed on August 24,
1987 and indicates that, with respect to location no. 1 in Ellensburg,
WA (the only facility Kittitas constructed), "21821-CD-ML-1-87 covers
23808-CD-P/L-2-85, granted 8/20/87." Kittitas argues that the license to
cover was never received and therefore it had no notice of the
applicable expiration date for call sign KNKI817. Assuming, *arguendo,*
that Kittitas failed to receive a covering authorization, we nonetheless
find that Kittitas had notice of the expiration date for call sign
KNKI817. As discussed above, such notice was afforded through the
Commission's release of the *License Renewal PN* on April 21, 1988,
which was released two years after the initial grant of call sign
KNKI817, and prior to the July, 1988 uniform expiration date for
wireline common carrier PLM licensees.

9\. Under the Commission's rules, licensees must file renewal
applications no later than the expiration date of the license for which
renewal is sought.[^21] In fact, licenses automatically terminate upon
the expiration date, unless a timely renewal is filed.[^22] Kittitas did
not seek renewal of its authorization until February 13, 1998, almost
nineteen months after the date Kittitas incorrectly argues its license
should have expired, and almost ten years after the applicable July,
1988 deadline. Accordingly, the Branch properly dismissed Kittitas's
request for reinstatement.[^23]

10\. We also find without merit Kittitas's argument that the
Commission's grant of an application to transfer of control of
Kittitas[^24] was "indicative of the Bureau's intention to give
favorable action to the late-filed license renewal application."[^25]
Kittitas's application to renew call sign KNKI817 was assigned FCC File
No. 000053376 and was not acted upon in conjunction with the grant of
Kittitas's separately filed transfer of control application, which was
assigned File No. 21428-CD-TC-98. Kittitas acknowledged in its renewal
application that the status of station KNKI817 "is in doubt"[^26] and
requested that the Commission consent to the transfer of control "even
though the status of station KNKI817 is not resolved."[^27] We clarify
that the Branch's action in granting Kittitas's request for a transfer
control was not a grant of the renewal application and, accordingly, the
transferee remains subject to our disposition of Kittitas's Petition and
Waiver Request as it relates to the status of call sign KNKI817.

11\. We now consider Kittitas's Waiver Request. Under section 1.925 of
the Commission\'s rules, a waiver may be granted if it is shown that (1)
the underlying purpose of the rule would not be served or would be
frustrated by application to the instant case, and that a grant of the
requested waiver would be in the public interest; or (2) in view of
unique or unusual factual circumstances of the instant case, application
of the rule would be inequitable, unduly burdensome or contrary to the
public interest, or that the applicant has no reasonable
alternative.[^28] For the reasons set forth below, we find that it is in
the public interest to grant in part Kittitas's Petition by granting a
limited waiver which would reinstate Kittitas's license under call sign
KNKI817 to operate on a *secondary basis*. This action is consistent
with our recent decision in *Billy Williford d/b/a* *Jasper Mobil
Phone,*[^29] where we granted a renewal application filed sixteen months
after the renewal deadline seeking reinstatement of a lower band paging
authorization. In *Williford*, we noted that the Commission had
conducted an auction of upper and lower band paging spectrum to award
geographic licenses to high bidders. Under the new licensing rules,
geographic licensees are required to protect incumbent (non-geographic)
licensees by allowing them to continue to operate under their existing
authorizations with full protection from co-channel interference from
geographic licensees.[^30] We found that Williford was not entitled to
such primary protection because the renewal application was filed
sixteen months late.[^31] Nonetheless, we found that it was in the
public interest to reinstate Williford's expired authorization on a
secondary basis as a result of Williford's substantial showing that
he: 1) provided service to public safety entities; and 2) provided
service to rural areas that may otherwise be without critical
communications service.[^32]

12\. Kittitas has made a substantial showing that it has provided
service for many years in a rural area of Washington and that most of
its customers are in fact public safety entities. Kittitas provides
service to over 240 subscribers in rural Kittitas County, Washington,
including important government entities engaged in activities involving
the life and safety of the public. Kittitas's customers include the
Kittitas Valley Community Hospital, the Kittitas County Prosecutor, the
Ellensburg School District, the City of Ellensburg, and the Cle Elum
Police Department.[^33] Kittitas states that its station is tied into a
multi-carrier, wide-area paging network on 158.10 MHz via a switch
located in Yakima, WA and that Kittitas provides not only numeric and
alphanumeric, but also voice paging, which has "become a rarity in the
U.S."[^34] Kittitas also states that its service is the only service
available in Kittitas County on a wide-area basis and that "even the
substitution of a local-only service would be inadequate if the paging
subscriber requires wide-area service."[^35] We recognize that a
geographic licensee is likely to commence service less quickly in rural
than in more urbanized areas.[^36] Given the unique circumstances of
this case, including Kittitas's provision of service to public safety
entities on a wide-area basis in a rural area, we conclude that it would
be in the public interest to grant a limited waiver to permit Kittitas
to continue operations until a geographic area licensee is available and
elects to provide paging service in the Ellensburg, WA Area.

13\. Grant of this limited waiver is subject to the following
conditions: 1) any license granted to Kittitas pursuant to this waiver
will have secondary status to the ultimate geographic area licensee for
the basic economic area (BEA) into which any of Kittitas\'s interference
contour is a part; and 2) upon receiving notice from a geographic area
licensee that the geographic area licensee intends, within ninety days,
to initiate operation of a facility, where the facility's service
contour will overlap with the interference contour of any transmitter
licensed pursuant to this waiver, Kittitas shall, within ninety days of
receiving such notice, either cease operation of the transmitter in
question or change its technical parameters to eliminate the overlapping
interference contour. [^37]

14\. We find that these conditions are in the public interest based on
the Commission's goals of establishing new rules for a transition from
site-by-site to geographic area licensing for all paging services
authorized on an exclusive, non-nationwide basis. Specifically, the new
geographic area licensing rules were intended to establish a
comprehensive and consistent regulatory scheme that would simplify and
streamline licensing procedures and provide a flexible operating
environment for all paging services.[^38] We further believe these
specific conditions appropriately balance the importance of allowing
Kittitas to continue providing a vital public service against the
importance of preserving sanctions that could have resulted in
termination of its license based on Kittitas's failure to file a timely
renewal application. In particular, we believe that this plan will
provide Kittitas with both the incentive and a reasonable amount of time
to negotiate an arrangement, such as partitioning, with the geographic
licensee, if warranted, and at the same time will protect both Kittitas
and the public from the consequences of unnecessarily forcing Kittitas
to discontinue its service. We note that it is incumbent on Kittitas to
make arrangements, if necessary, that will permit it to continue to
offer the services discussed in this Order.[^39]

15\. The Branch shall return Kittitas's application, File No.
0000053376, to pending status as of the release date of this Order.
Within thirty days of that date, if the conditions set forth in this
Order are acceptable to Kittitas, it shall electronically file an
amendment to its application indicating that it will accept these
conditions. Upon receipt of this submission, the Branch will process the
application in accordance with this Order and Commission rules and
procedures, notwithstanding the deadline for filing renewal
applications.

**IV. ORDERING CLAUSES**

16\. Accordingly, IT IS ORDERED that, pursuant to sections 4 (i), 303
(r), and 405 of the Communications Act, as amended, 47 U.S.C. §§ 154(i),
303 (r), 405, and sections 0.331and 1.106 of the Commission\'s rules, 47
C.F.R. §§ 0.331, 1.106, the Petition for Reconsideration filed by
Kittitas Valley Paging Limited Partnership on April 7, 2000 is GRANTED
IN PART, subject to the conditions described in this Order.

17\. IT IS FURTHER ORDERED that, pursuant to sections 4 (i), 303 (r) of
the Communications Act, as amended, 47 U.S.C. §§ 154(i), 303 (r), and
sections 0.331 and 1.925 of the Commission\'s rules, 47 C.F.R. §§ 0.331,
1.925, the Request for Waiver filed by Kittitas Valley Paging Limited
Partnership on February 11, 1998 is GRANTED, subject to the conditions
described in this Order.

18\. IT IS FURTHER ORDERED that, pursuant to sections 4 (i) and 303 (r)
of the Communications Act, as amended, 47 U.S.C. §§ 154(i), 303 (r), and
sections 0.331of the Commission\'s rules, 47 C.F.R. § 0.331, the
Commercial Wireless Division's Licensing and Technical Analysis Branch
shall return Kittitas's application, File No. 0000053376, to pending
status as of the release date of this Order, and process Kittitas's
application for renewal of the license for call sign KNKI817, subject to
the conditions described in this Order.

FEDERAL COMMUNICATIONS COMMISSION

Paul D'Ari, Chief

Policy and Rules Branch

Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: *See* *Public Notice*, Wireless Telecommunications Bureau
    Site-by-Site Actions, Report No. 472, rel. March 8, 2000.

[^2]: *See* former section 22.45 of the Commission's rules, which
    provided that authorizations for Public Land Mobile Stations
    (Wireline Common Carrier) expired on July 1 in the year of
    expiration. 47 C.F.R. § 22.45 (1986). Kittitas is a wholly owned
    subsidiary of Ellensburg Telephone Company, a wire-line telephone
    company, and therefore is classified as a wire-line common carrier.

[^3]: Common Carrier and Satellite Licensing Procedures Pursuant to the
    Communications Amendments Act of 1982, *Report and Order*, CC Docket
    No. 83-371, 48 FR 27251 (*1983 Licensing Order*).

[^4]: In 1988, the Common Carrier Bureau provided additional notice to
    wireline common carrier PLM licensees of the July 1, 1988 uniform
    license expiration date. *See Public Notice*, "Common Carrier Public
    Mobile Services Information - [License Renewals]{.underline}," Mimeo
    2661, rel. April 21, 1988 (*License Renewal PN*).

[^5]: *See 1983 Licensing* *Order* at fn. 11.

[^6]: Kittitas's filing indicated that the Roslyn, WA facility was not
    constructed. Kittitas is not seeking to reinstate its former license
    at the Roslyn, WA site.

[^7]: Kittitas also filed an application seeking consent to a transfer
    control of station KNKI817, which the Branch granted on April 17,
    1998. *See Public Notice*, Report No. LB-98-36, rel. April 17, 1998.

[^8]: Kittitas Waiver Request at 2.

[^9]: Kittitas Waiver Request at 4-6.

[^10]: Kittitas Waiver Request at 7-8.

[^11]: *See* Letter from Roger Noel, Chief, Licensing and Technical
    Analysis Branch, to Kittitas Valley Paging Limited Partnership,
    dated Feb. 28, 2000. The Branch further found that even if Kittitas
    was correct in its belief that its license was issued for a ten-year
    period expiring in 1996, Kittitas failed to seek renewal until 1998.

[^12]: *Id.* (citing former section 22.45). The Branch did, however,
    grant Kittitas special temporary authority to continue operating.

[^13]: *Public Notice*, Report No. 472, released March 8, 2000.

[^14]: Petition at 4-6.

[^15]: Petition at 5-7.

[^16]: Petition at 4.

[^17]: Auction 40 closed December 5, 2001.

[^18]: *See* former rule section 22.45, 47 C.F.R. § 22.45 (1983).

[^19]: As Kittitas acknowledges, the Commission did not adopt license
    expiration dates on a license-by-license basis until the mid-1990s.
    Petition at 6, fn 9.

[^20]: *License Renewal PN* at 1.

[^21]: 47 C.F.R. § 1.926(b) (1996). Current Commission rule 1.949(a), 47
    C.F.R. § 1.949(a), requires timely renewal.

[^22]: 47 C.F.R. § 22.144(a) (1996). *See also* current Commission rule
    1.955(a)(1), 47 C.F.R. § 1.955(a)(1).

[^23]: Kittitas's failure to timely submit its renewal application could
    not have been the result of confusion over whether former rule
    section 22. 45 governed, as Kittitas did not submit its renewal
    application until 19 months after the date Kittitas argues the
    license should have expired.

[^24]: *See Public Notice*, Report No. LB -- 98-36, rel. April 17, 1998.

[^25]: Petition at 4.

[^26]: *See* Kittitas Valley Paging Limited Partnership FCC Form 490
    Application for Assignment of Authorization or Consent to Transfer
    of Control, FCC File No. 21428-CD-TC-98, at p 2.

[^27]: *Id*.

[^28]: 47 C.F.R. § 1.925.

[^29]: *See* In the Matter of Billy Williford d/b/a Jasper Mobil Phone,
    *Order,* DA 02-22 (Com. Wir. Div. rel. January 8, 2002)
    (*Williford*).

[^30]: *See Williford* at ¶ 9.

[^31]: *Id.*

[^32]: *Williford* at¶ 6-7. We note that the Commission has also granted
    certain paging licensees that operate in rural areas or provide
    service to public safety users a waiver of the paging application
    freeze to expand existing service areas on a secondary basis to the
    geographic licensee. See In re Application of Pierre Radio Paging
    and Telephone Company, *Order*, DA 01-816 (2001); In the Matter of
    Adams Telephone Cooperative, *Order*, DA 01-815 (2001); In the
    Matter of Acadian Ambulance Services, Inc., *Order*, 14 FCC Rcd
    19310 (1999); In re Application of JSM Tele-Page, Inc., *Memorandum
    Opinion and Order*, 14 FCC Rcd 19516 (1999).

[^33]: Kittitas's Petition includes letters from various public safety
    users on its system supporting the reinstatement of Kittitas's
    paging system.

[^34]: Petition at 9.

[^35]: *Id*.

[^36]: *Williford* at ¶ 7.

[^37]: *Williford* at ¶ 8; *see also* In the Matter of Acadian Ambulance
    Services, Inc., *Order*, 14 FCC Rcd. 19310 (1999) (waiving the
    freeze on paging applications and imposing these same conditions on
    any license granted based on the waiver).

[^38]: Revision of Part 22 and Part 90 of the Commission's Rules to
    Facilitate Future Development of Paging Systems, *Notice of Proposed
    Rulemaking*, 11 FCC Rcd 3108, 3109, ¶ 1, 3113, ¶ 21 (1996).

[^39]: *Williford* at ¶ 10.