Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | * | File No.: 2000C3-LML         |
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| PIERRE RADIO PAGING              | ) |                              |
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| & TELEPHONE COMPANY              | * |                              |
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| For Modification of CMRS Station | * |                              |
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| KNKK446 at Lyman, South Dakota   | ) |                              |
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**ORDER**

**Adopted: March 30, 2001 Released: April 2, 2001**

By the Chief, Commercial Wireless Division, Wireless Telecommunications
Bureau:

1\. This order addresses a Petition for Reconsideration (Petition) filed
by Pierre Paging & Telephone Corporation (Pierre) on December 3, 1999.
Pierre seeks further reconsideration of the Commercial Wireless
Division, Licensing and Technical Analysis Branch's (Branch) dismissal
of Pierre's Petition For Reconsideration of the denial of Pierre's
above-captioned application for modification of call sign KNKK446.[^1]
In the alternative, Pierre seeks a waiver of the current paging
application freeze to modify call sign KNKK446. For the reasons
discussed below, we deny the Petition, but grant Pierre a waiver of the
current paging freeze in order to file an application for a license to
operate on a secondary basis.

2\. On March 6, 1996, Pierre filed the above-captioned application for
modification of station KNKK446 at Lyman, South Dakota. On March 22,
1996, the Branch dismissed the application, stating that the Commission
had suspended the acceptance of all new applications for paging channels
as of February 8, 1996.[^2] On April 22, 1996, Pierre filed a petition
for reconsideration of the dismissal of its application and argued that
its application was for two-way service, not paging service, and was not
subject to the freeze on acceptance of paging applications.[^3] The
Branch denied Pierre's petition, as the Commission had clarified in the
*Paging First Report and Order* that two-way mobile telephone service on
the two-way channels listed in section 22.561 of the Commission's rules
was not exempt from the paging application freeze.[^4] On December 3,
1999, Pierre filed a petition for reconsideration and requested a waiver
of the paging application freeze.[^5]

3\. In the *Paging Freeze NPRM*, the Commission indicated that it would
process applications filed before February 8, 1996. Pursuant to interim
licensing rules, the Commission also accepted and processed non-mutually
exclusive paging applications filed by incumbents within 40 miles of an
existing site after April 22, 1996 and before July 31, 1996.[^6]
Pierre's application was filed on March 6, 1996, after the imposition of
the paging freeze and prior to the opening of the filing period for
40-mile expansion applications. We find that Pierre has presented no new
arguments that would persuade us to grant reconsideration of the
Branch's denial of its earlier filed request for reconsideration. Pierre
did not submit its application during the period established for the
filing of 40-mile expansion applications, and the Branch properly
determined that two-way mobile telephone service on the two-way channels
listed in section 22.561 of the Commission's rules were not exempt from
the paging application freeze.

4\. Nevertheless, we find that Pierre is providing paging service in a
rural area and that, consistent with the decisions in *Acadian
Ambulance*[^7] and *JSM Telepage*,[^8] a waiver of the paging
application freeze is appropriate to permit Pierre to file an
application for a license to extend its service area on a secondary
basis, subject to the following conditions: 1) any license granted to
Pierre pursuant to this waiver will have secondary status to the
ultimate geographic area licensee for all Economic Areas (EAs) into
which Pierre's interference contour extends; and 2) upon receiving
notice from a geographic area licensee that the geographic area licensee
intends within 90 days to initiate operation of a facility, the
interference contour of which will overlap with the interference contour
of any transmitter licensed pursuant to this waiver, Pierre shall within
90 days either cease operation of the transmitter in question or change
its technical parameters to eliminate the overlapping interference
contour.

5\. Within 30 days of the effective date of this order, if the
conditions set forth herein are acceptable to Pierre, Pierre shall
refile the application that was previously dismissed by the Branch,
together with an indication in writing that it will accept these
conditions. Upon receipt of this submission, we will promptly place
Pierre's application on public notice as accepted for filing and will
process the application in accordance with the Commission's rules and
its customary procedures, notwithstanding the paging application freeze.

6\. Accordingly, IT IS ORDERED that, pursuant to sections 4 (i) and 405
of the Commissions Act of 1934, as amended, 47 U.S.C. §§ 154 (i), 405
and sections 0.331 and 1.106 of the Commissions Rules, 47 C.F.R. §§
0.331, 1.106, the petition for reconsideration filed by Pierre Radio
Paging & Telephone Corporation on December 3, 1999, IS DENIED.

7\. IT IS FURTHER ORDERED that, pursuant to the authority of Section 4
(i) of the Communications Act of 1934, as amended, 47 U.S.C. § 154 (i),
and Sections 0.331 and 1.925 (b)(3) of the Commission's rules, 47 C.F.R.
§§ 0.331 and 1.925 (b)(3), the request for waiver of the paging
application freeze filed by Pierre Radio Paging & Telephone Corporation
is GRANTED to the extent stated herein.

> FEDERAL COMMUNICATIONS COMMISSION
>
> William W. Kunze
>
> Chief, Commercial Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: In re Application of Pierre Radio Paging & Telephone Corporation,
    *Order*, DA 99-2472, 1999 WL 1005117 (Comm. Wir. Div. rel. Nov. 5,
    1999).

[^2]: *See* 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 (1996) (*Paging Freeze NPRM*).

[^3]: *See* Petition for Reconsideration of Pierre Radio Paging &
    Telephone Corporation filed April 22, 1996.

[^4]: Revision of Part 22 and Part 90 of the Commission's Rules to
    Facilitate Future Development of Paging Systems, *First Report and
    Order,* 11 FCC Rcd 16570, 16588 (1996) (*Paging First Report and
    Order*). The Commission stated that "with respect to the contention
    that the two-way mobile telephone service on the two-way channels
    listed in Section 22.561 should be exempt from the freeze, we
    decline to exempt those lower band CCP channels but note that we are
    partially lifting the freeze by allowing incumbents to add
    transmission sites within 65 kilometers (40 miles) of an authorized
    and operating transmission site."

[^5]: *See* Petition for Reconsideration of Pierre Radio Paging &
    Telephone Corporation filed December 3, 1999.

[^6]: *See* "Wireless Telecommunications Bureau Establishes Interim
    Procedures or Filing of Common Carrier and Private Carrier Paging
    Applications," *Public Notice*, 12 FCC Rcd 8740 (WTB May 10, 1996).

[^7]: *See* Acadian Ambulance Services, Inc., *Order*, 14 FCC Rcd 19310
    (1999).

[^8]: *See* JSM Tele-page, Inc., *Memorandum Opinion and Order*, 14 FCC
    Rcd 19516 (WTB 1999).