Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. 0000487105          |
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| WISCONSIN ELECTRIC POWER COMPANY | ** |                              |
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| Request for Waiver of Section    | *  |                              |
| 101.81 of the Commission\'s      | *) |                              |
| Rules                            | ** |                              |
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**ORDER**

**Adopted: December 17, 2001 Released: December 20, 2001**

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

**I. INTRODUCTION**

1\. On June 12, 2001, Wisconsin Electric Power Company (Wisconsin
Electric) filed a request for waiver of the Commission's Rules to allow
it to retain primary status for its license to operate Fixed Microwave
Service (FMS) Station WNEY242, Paris, Wisconsin.[^1] For reasons set
forth below, we deny the waiver request.

**II. BACKGROUND**

2\. In 1992, the Commission reallocated portions of the 2 GHz band from
FMS to emerging technology (ET) systems, including the personal
communications services (PCS).[^2] The Commission intended to
reaccommodate the FMS licensees in a manner that would be most
advantageous to incumbent users, 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 decided 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
permitted 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 other spectrum.[^5] Third,
the Commission restricted the type of modifications and extensions FMS
licensees could make to their 2 GHz systems and retain primary
status.[^6] Fourth, the Commission provided ET licensees with the option
of requiring the FMS incumbents to relocate sooner and paying the
additional costs caused by the earlier relocation.[^7] One practical
effect of these rules was that incumbent FMS licensees that were
authorized on a primary basis would have the cost of relocating to other
bands paid for by the new ET licensees if the ET licensees force them to
relocate. On the other hand, ET licensees are under no obligation to
relocate 2 GHz band links that were authorized on a secondary basis.

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 their
facilities.[^8] 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.[^9] Later that year, the
Commission affirmed this approach.[^10] As a result, licensees of
existing 2 GHz band 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.[^11]

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.[^12] The Commission stated that to the extent practicable it
would continue to apply the existing rules governing primary and
secondary status to pending 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.[^13] 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.[^14]

5\. On April 25, 1996, the Commission adopted the current regulations
regarding the licensing of FMS systems in the 2 GHz band,[^15] which
went into effect August 1, 1996.[^16] 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.[^17] 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.[^18]

6\. Wisconsin Electric provides electricity to 1,006,013 residences and
businesses in Wisconsin and Michigan, and natural gas and steam to a
combined 398,958 customers.[^19] Wisconsin Electric states that it must
maintain a reliable communications network to maintain its utility
operations and recover quickly from calamities that sometimes occur in
the everyday functioning of its utility operations.[^20] One part of its
communications network is a 2 GHz band microwave path between Stations
WNEY242, Paris, Wisconsin and WNEY241, Kenosha, Wisconsin.[^21] The 2
GHz band microwave hop carries traffic in support of remote monitoring
and control of an electric substation and combustion turbine facility in
Paris, Wisconsin.[^22]

7\. In 1992, in order to meet growing demand for electricity, Wisconsin
Electric constructed a gas turbine facility on the premises of the
authorized site of Station WNEY242, and relocated the station to another
site approximately 500 feet away. Wisconsin Electric failed, however, to
file the appropriate modification application with the Commission prior
to such relocation.[^23] After discovering the resulting coordinate
discrepancy while reviewing its FCC tower registrations, on November 7,
2001 Wisconsin Electric filed a modification application and waiver
request to allow grant of the modification on a primary basis.[^24] On
May 22, 2001, Wisconsin Electric withdrew that application. On June 12,
2001, Wisconsin Electric filed another application and waiver
request.[^25]

**III. DISCUSSION**

8\. As noted above, Section 101.81 of the Commission's Rules provides
that, after April 26, 1996, all major modifications and extensions to 2
GHz FMS systems will be authorized only on a secondary basis.[^26] As an
initial matter, Wisconsin Electric argues that Station WNEY242 should
retain its primary status because the modification occurred prior to
April 25, 1996.[^27] In short, Wisconsin Electric asserts that, as the
modification occurred prior to April 25, 1996, it is exempt from the
requirements of Section 101.81 of the Commission's Rules that would
compel the Commission to grant Wisconsin Electric's application for
license modification for Station WNEY242 with secondary status. We
disagree. Section 101.81 governs all 2 GHz license modification
applications granted after the rule took effect, regardless of when the
application was filed or when the modification was actually
implemented.[^28]

9\. Wisconsin Electric's relocation of Station WNEY242, from its former
location to its present one, an approximate distance of 500 feet,[^29]
constitutes a major modification.[^30] Without a waiver of Section
101.81, Wisconsin Electric's modified license would be granted only on a
secondary basis.[^31] We may grant a request for waiver of a rule if the
requesting party shows (i) the underlying purpose of the rule 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 factual circumstances of the instant
case, application of the rule would be inequitable, unduly burdensome or
contrary to the public interest, or the applicant has no reasonable
alternative.[^32]

10\. Wisconsin Electric argues that the underlying purpose of Section
101.81 would not be frustrated if we were to grant the waiver request,
because the cost to an ET licensee to relocate would be the same at the
old or the new location.[^33] We disagree. As we have stated previously,
the goals of the 2 GHz band licensing rules are not only to limit or
"lock in" relocation costs, as Wisconsin Electric argues,[^34] but also
to clear the 2 GHz spectrum by allowing FMS stations to lose primary
status as those stations change.[^35] In declining to expand the
licensing policy beyond these contours, the Commission stated that
limiting primary site grants is necessary to protect the interests of
PCS (and other ET) licensees.[^36] Moreover, the rules themselves
demonstrate that limiting relocation costs are not the only purpose the
rules serve. For example, all major modifications result in a 2 GHz FMS
station being accorded secondary status, regardless of the effect on
relocation costs.[^37] Further, licensees that make certain minor
modifications must affirmatively justify primary status, not just show
that the modifications will not add to relocation costs in order to
retain primary status.[^38] Thus, we believe that the Commission has
decided that the effect on relocation costs is a relevant decisional
factor only when licensees propose minor modifications, and not when
they propose major modifications.[^39]

11\. Next, Wisconsin Electric argues that we should grant the waiver
request in view of the unique or unusual circumstances of the instant
case.[^40] Specifically, it suggests that application of the rule would
be inequitable because the loss of primary status would compel Wisconsin
Electric, rather than an ET licensee, to bear the cost of relocating
Station WNEY242. Again, we disagree. We see no inequity in
distinguishing between a properly authorized pre-1996 major modification
and a pre-1996 major modification for which authorization was not
requested until 2001. We expect FCC licensees to provide all technical
information regarding its station's facilities in a timely manner so as
to demonstrate compliance with all the technical requirements of the
Commission's Rules.[^41] Further, if prior FCC approval is required
before certain technical changes are made, we expect FCC licensees to
obtain such approval in advance of making the changes rather than
post-implementation thereof. In addition, correct information is
necessary to the frequency coordination process.[^42] Having neglected
to file a timely modification application, Wisconsin Electric is rightly
subject to the rules governing post-1996 modifications.

**IV. CONCLUSION**

12\. Based on the record before us, we conclude that Wisconsin Electric
has failed to demonstrate that grant of a waiver of Section 101.81 of
the Commission's Rules is warranted. We therefore deny its request for
waiver of Section 101.81 of the Commission's Rules. We note, however,
that a denial of the waiver requests does not mean that Wisconsin
Electric may not operate the subject station; rather, assuming the
application is otherwise proper, Wisconsin Electric's authorization to
operate the station will be accorded secondary status.[^43]

**V. ORDERING CLAUSES**

13\. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and Sections
1.925, 1.945, 101.69, and 101.81 of the Commission's Rules, 47 C.F.R. §§
1.925, 1.945, 101.69, 101.81, the Request for Waiver filed by Western
Electric on June 12, 2001, IS DENIED.

14\. IT IS FURTHERED ORDERED that application FCC File No. 0000487105
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.

15\. 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]: Wisconsin Electric Power Company Request for Waiver of Section
    101.81 of the FCC's Regulations (filed June 12, 2001) (Waiver
    Request).

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

[^3]: *ET First R&O*, 7 FCC Rcd at 6886-87 ¶ 5.

[^4]: *Id.* at 6891-92 ¶ 31; *ET NPRM*, 7 FCC Rcd at 1545 ¶ 23.
    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.

[^5]: *ET First R&O*, 7 FCC Rcd at 6890-91 ¶¶ 22-29; *ET NPRM*, 7 FCC
    Rcd at 1545 ¶ 24.

[^6]: *ET First R&O*, 7 FCC Rcd at 6891-92 ¶ 31.

[^7]: *Id.* at 6890 ¶ 24; *ET NPRM*, 7 FCC Rcd at 1545 ¶ 26.

[^8]: Two Gigahertz Fixed Microwave Licensing Policy, *Public Notice*,
    Mimeo No. 23115 (May 14, 1992).

[^9]: *Id*.

[^10]: 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, 6891-92 ¶ 31 (1992).

[^11]: *Id*.

[^12]: 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*).

[^13]: *Id.* at 1926 ¶ 4.

[^14]: *Id.*

[^15]: 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.

[^16]: 61 Fed. Reg. 29679, 29680, 29695 (1996).

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

[^18]: 47 C.F.R. § 101.81.

[^19]: Waiver Request at 1.

[^20]: *See id*. at 2.

[^21]: *Id*.

[^22]: *Id*.

[^23]: *Id*. at 3.

[^24]: FCC File No. 0000254070 (filed November 7, 2000).

[^25]: The June 12, 2001 application and waiver request are both
    identical to those Wisconsin Electric submitted on November 7, 2000.

[^26]: 47 C.F.R. § 101.81.

[^27]: Waiver Request at 3.

[^28]: *Cost Sharing First Report and Order*, 11 FCC Rcd at 8868 ¶ 88.
    *See also* The Beeper People, *Order*, 16 FCC Rcd 18536, 18539 ¶ 8
    (WTB PSPWD 2001).

[^29]: Waiver Request at 3.

[^30]: 47 C.F.R. § 1.929(d)(1)(i).

[^31]: 47 C.F.R. § 101.81.

[^32]: 47 C.F.R. § 1.925(b)(3).

[^33]: Waiver Request at 5.

[^34]: *Id*.

[^35]: Sierra Pacific Power Company, *Order*, 16 FCC Rcd 188, 191 ¶ 7
    (WTB PSPWD 2001); Plumas-Sierra Rural Electric Cooperative, *Order,*
    15 FCC Rcd 5572, 5574-75 ¶ 7 (WTB PSPWD 2000) (*Plumas-Sierra*);
    Duke Power Company, *Order*, 14 FCC Rcd 19431, 19433-34 ¶ 6 (WTB
    PSPWD 1999).

[^36]: *Cost Sharing First Report and Order*, 11 FCC Rcd at 8868-69 ¶
    88.

[^37]: 47 C.F.R. § 101.81.

[^38]: *Plumas-Sierra*, 15 FCC Rcd at 5574-75 ¶ 7.

[^39]: *See e.g.*, Illinois Valley Cellular RSA 2, Inc., *Order*, 15 FCC
    Rcd 14819, 14821 ¶ 6 (WTB PSPWD 2000); Cybertel RSA Cellular, L.P.,
    *Order*, 15 FCC Rcd 5577, 5579 ¶ 5 (WTB PSPWD 2000).

[^40]: Waiver Request at 5.

[^41]: *See*, *e.g.*, 47 C.F.R. § 101.21.

[^42]: *See* Revision of Part 21 of the Commission's Rules, *Report and
    Order*, CC Docket No. 86-128, 2 FCC Rcd 5713, 5715 ¶ 16 (1987);
    Frequency Coordination in the Private Land Mobile Radio Services,
    *Report and Order*, PR Docket No. 83-737, 103 FCC 2d 1093, 1106 ¶
    25, 1112 ¶ 38 (1986).

[^43]: Our decision herein addresses only Wisconsin Electric's waiver
    requests, and is taken without prejudice to any enforcement action
    with respect to unauthorized operation under the modified
    parameters. We also note that any licensee seeking Commission
    approval to modify a FMS station must also seek Commission approval
    to modify the license(s) of any station(s) to which the modified
    station transmit, if any corresponding changes were made to the
    station(s) to ensure that the stations line up accurately.
    Additionally, each license must reflect correct information
    regarding any station(s) to which it transmits. Thus, it would
    appear that Wisconsin Electric must seek to modify its license for
    Station WNEY241.