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tampa electric


									                                  Federal Communications Commission                              DA 99-2793

                                              Before the
                                  Federal Communications Commission
                                        Washington, D.C. 20554

In the Matter of                                      )
TAMPA ELECTRIC COMPANY                                )    FCC File No. 746063
Request for Waiver and Application to                 )
Re-license Operational Fixed Microwave                )
Radio Station License WHI718 with Primary             )
Status                                                )


        Adopted: December 13, 1999                                  Released: December 16, 1999

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

                                           I. INTRODUCTION

         1. Tampa Electric Company (Tampa Electric) operates several fixed microwave services (FMS)
radio stations in the 2 GHz band and inadvertently allowed the license for one of its stations to expire.
Tampa Electric now has filed an application1 to re-license the same facility and requests a waiver of
Section 101.81 of the Commission's Rules that would otherwise result in the station being authorized on
a secondary basis.2 For the reasons stated herein, we deny Tampa Electric's request for a waiver of
Section 101.81 of the Commission‟s Rules.

                                           II. BACKGROUND

        2. The Commission has reallocated portions of the 2 GHz band from FMS to emerging
technology (ET) services, including the personal communications services (PCS). 3 To this end, the
Commission has adopted certain transition rules.4 In doing so, the Commission balanced the needs of

   Applications for Authorization in the Microwave Services (FCC File No. 746063) (filed November 5, 1998)
     Tampa Electric Company Request for Waiver of Federal Communications Commission Rule Section 101.81
(filed November 5, 1998) (Waiver Request).
    Redevelopment of Spectrum to Encourage Innovation in the Use of New Telecommunications Technologies,
First Report and Order and Third Notice of Proposed Rule Making, 7 FCC Rcd 6886 (1992) (ET First Report and
   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
                                      Federal Communications Commission                               DA 99-2793

incumbent FMS licensees to continue to operate their systems with the need to conserve vacant 2 GHz
spectrum for use by ET licensees, to provide ET licensees with a stable environment in which to plan and
implement new services, and to prevent ET licensees from bearing any additional costs of relocating
FMS licensees.5 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 period of time, by the end of which the incumbents are to relocate to another portion
of the spectrum.6 ET licensees have the option, however, of requiring the FMS incumbents to relocate
sooner if the ET licensees pay the additional costs caused by the earlier relocation. 7 Second, the
Commission is authorizing new FMS stations and most modifications of FMS stations only on a
secondary basis to ET systems.8 Most minor modifications of FMS stations are also authorized on a
secondary status unless the licensee can demonstrate that it needs primary status and the modifications
will not add to the relocation costs to be paid by the ET licensee. 9 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. Tampa Electric is an electric utility serving approximately 1.5 million customers in the
Tampa, Florida, metropolitan area. 10 Station WHI718, Tampa, Florida, is the central hub of a nine-
station FMS system that Tampa Electric operates to transmit voice and data communications in support
of its electric operations.11 Due to an administrative oversight, Tampa Electric failed to renew the
station‟s license in a timely manner; 12 the license term therefore expired as of September 22, 1997. 13
Tampa Electric was unaware of this until a routine audit of its licensing records in 1998.14 As a result of
an internal inquiry into why it had failed to file a timely renewal, Tampa Electric learned that the
Commission had cancelled the license in 1996. 15 Tampa Electric searched its files and was unable to

introduction of new services. See ET First Report and Order, 7 FCC Rcd at 6886-87 ¶ 5.
   ET Report and Order, 7 FCC Rcd at 6886 ¶ 5, 6891 ¶ 30; 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, 11 FCC Rcd 8825, 8866-69 ¶¶ 86-88 (1996) (Cost Sharing First Report and Order).
      47 C.F.R. §§ 101.69(b), 101.79(a). See also ET First Report and Order, 7 FCC Rcd at 6886 ¶ 5.
      See 47 C.F.R. §§ 101.69(a), 101.71-101.77.
      47 C.F.R. § 101.81.
       Waiver Request at 1.
       See 47 C.F.R. § 101.65(a) (1998) (currently codified at 47 C.F.R. § 1.955(a)(1)).
        Waiver Request at 1.

                                       Federal Communications Commission                              DA 99-2793

locate any records that would explain why Station WHI718 had been cancelled; inquiries to the
Commission likewise failed to produce any records documenting the circumstances surrounding the
cancellation of the license in 1996. 16 Tampa Electric thus reasons that the license was allowed to expire
because Tampa Electric never received a renewal notice, which occurred because the license had been

         4. Shortly after it realized that the license for Station WHI718 was no longer valid, Tampa
Electric filed a request to operate the station under special temporary authority. 18 Tampa Electric
received special temporary authority on August 21, 1998, with the condition that such authority was with
secondary status and subject to the provisions of ET Docket 92-9.19 On November 5, 1998, Tampa
Electric filed an application for a new license for the station. 20 The station had operated in the 2 GHz
band and was originally authorized with primary status. 21 In connection with its application, Tampa
Electric requests a waiver of the Commission‟s Rules that provide that new FMS stations in the 2 GHz
band will be authorized on a secondary basis to ET licensees. Tampa Electric thus seeks to have its
facilities "re-licensed" with primary status.22

                                                  III. DISCUSSION

        5. In this case, the station at issue was originally authorized with primary status, but that
authorization has terminated. Tampa Electric now requests a waiver of the Rules so that its new station
license can be accorded primary status. Section 1.925(b)(3) of the Commission‟s Rules provides

        See 47 C.F.R. § 101.31 (1998) (currently codified at 47 C.F.R. § 1.931).
     The Commission also granted Tampa Electric‟s two subsequent requests to extend the special temporary
authority (STA), subject to the same conditions of the original STA grant, which now is scheduled to expire on
February 15, 2000.

       See Waiver Request at 1.

                                    Federal Communications Commission                          DA 99-2793

that 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.23 For the reasons set forth below, we conclude that grant of the requested waiver
is not warranted. We, therefore, deny Tampa Electric‟s request for a waiver of the Rules.

         6. Turning to the first of the two standards for deciding a waiver request, Tampa Electric argues
that the primary purpose of the 2 GHz licensing rules is to ensure that the costs of relocation do not
escalate beyond the level originally contemplated by the Commission. 24 Tampa Electric states that
it had previously been licensed at the same location, it is not adding a “new” station, nor is it increasing
the relocation costs beyond what they were at the time the Commission decided to reallocate the 2 GHz
band from FMS to ET services.25 Further, Tampa Electric states that its station was still listed in the
frequency coordinator‟s 2 GHz microwave data base, and that therefore no ET licensee could have
detrimentally relied on the fact that Tampa Electric‟s license had expired. 26 Tampa Electric therefore
contends that the underlying purposes of the rules would not be served by applying the rules to its case. 27

         7. We disagree. As we recently stated in Duke Power Company,28 the goals of the 2 GHz
licensing rules are not only to limit relocation costs, as Tampa Electric argues, but also to clear the 2
GHz spectrum.29 In declining to expand the licensing policy, the Commission previously has stated that
limiting primary site-by-site license grants is necessary to protect the interests of PCS (and other ET)
licensees.30 Moreover, the Rules themselves demonstrate that limiting relocation costs is 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. 31 Further, licensees who 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. 32 Thus, we believe that a determination
    47 C.F.R. § 1.925(b)(3) (formerly codified at 47 C.F.R § 101.23).
       Waiver Request at 3.
       Waiver Request at 3-4.
       Duke Power Company, Order, DA 99-2574, at ¶ 6 (WTB PSPWD rel. November 18, 1999).
       See 47 C.F.R. § 101.69.

       Cost Sharing First Report and Order, 11 FCC Rcd at 8869 ¶ 88.
       47 C.F.R. § 101.81.

                                  Federal Communications Commission                               DA 99-2793

as to whether grant of the requested waiver is warranted should not be limited solely to an analysis of the
impact on potential relocation costs.

          8. Tampa Electric also argues that the primary emphasis of the rules is with respect to the PCS
portion of the 2 GHz band, and that its station is in the non-PCS portion.33 Indeed, argues Tampa
Electric, its station was located in a portion of the spectrum that has not yet been targeted for a particular
ET service.34 While Tampa Electric is correct that the primary focus of the Commission‟s decisions was
on the PCS portion of the 2 GHz band, we do not believe that this is determinative of the outcome in this
matter. As noted in Duke Power Company, “the Commission specifically applied the 2 GHz licensing
rules to all portions of the 2 GHz band.” 35 Thus, we are not persuaded by Tampa Electric‟s argument
that its operations in the non-PCS portion of the 2 GHz band is sufficient justification to waive the
Commission‟s licensing rules. For these reasons, we conclude that Tampa Electric has not shown that
the underlying purpose of the 2 GHz FMS licensing rules would not be served or would be frustrated by
applying them to this case.

         9. Turning to the second of the two standards for granting a waiver, Tampa Electric argues that
this case presents unique or unusual circumstances that render application of the licensing rules
inequitable, unduly burdensome, and contrary to the public interest. 36 First, Tampa Electric contends
that, but for the Commission‟s “clerical error” of cancelling the license in 1996, Tampa Electric would
have received a renewal notice from the Commission in 1997 (and presumably would have timely filed
its renewal).37 Implicit in this argument is the notion that a licensee‟s obligation to timely file a renewal
is dependent upon the Commission‟s sending a renewal notice to the licensee. We disagree. Even if we
excuse Tampa Electric‟s inaction in the face of the 1996 cancellation (for which no explanation appears
in our licensing records), it is nonetheless true that each licensee is responsible for renewing its license
prior to the license‟s expiration. 38 Accordingly, “failure of a licensee to receive a [renewal form] from
the Commission is no excuse for failure to file a renewal application.” 39

        10. Lastly, Tampa Electric contends that application of the rule to its case would be inequitable
and unduly burdensome, because the station in question is paired with three other stations that are still
licensed in the 2 GHz band, and, given the “technical inability to operate paired links in widely

     Waiver Request at 4.
     Duke Power Company at ¶ 7 (citing Cost Sharing Report and Order, 11 FCC Rcd at 8869-70 ¶¶ 90-92).
     Waiver Request at 4-5.
     Daniel R. Goodman, Receiver, Dr. Robert Chan, Petition for Waiver of Sections 90.633(c) and 1.1102 of the
Commission‟s Rules, Memorandum Opinion & Order and Order on Reconsideration, 13 FCC Rcd 21944, 21972-
73 ¶ 53 (1998).
   Id. at 21973 ¶ 53; accord, e.g., Nevada Power Company, Order on Reconsideration, DA 99-2291, at ¶ 5 (WTB
PSPWD rel. October 25, 1999).

                                  Federal Communications Commission                            DA 99-2793

separated frequency bands,” Tampa Electric “will be forced to either increase the cost and complexity of
its system, impair its reliability, or incur the expense of changing out both the existing stations and the
„new‟ stations to a higher frequency” if the Commission does not re-license Station WHI718 in the 2
GHz band.40 That Station WHI718 is linked to other 2 GHz stations is not a unique or unusual
circumstance. Thus, Tampa Electric is in no different situation in this respect from other licensees who
have lost primary status for their FMS stations.41 Accordingly, we do not believe that Tampa Electric
has demonstrated that its case presents unusual or unique circumstances such that it is entitled to a
waiver of the Commission‟s Rules.

                                           IV. CONCLUSION

        11. Tampa Electric‟s application to re-license the station at issue is a new application which, if
granted, would be accorded secondary status pursuant to the Commission‟s Rules. For the reasons
discussed above, Tampa Electric has not demonstrated how the Rules would be frustrated or how
application of the Rules would be contrary to the public interest. We therefore deny Tampa Electric‟s
request for a waiver of Section 101.81 of the Commission‟s Rules, and forward the application to the
Public Safety and Private Wireless Division, Licensing and Technical Analysis Branch, for processing in
accordance with the applicable Commission Rules.

                                       V. ORDERING CLAUSES

        12. ACCORDINGLY, IT IS ORDERED that pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, 47 U.S.C. §§ 154(i), 405, and Sections 1.925 and 101.69 of the
Commission's Rules, 47 C.F.R. §§ 1.925, 101.69, the Request for Waiver of Tampa Electric Company,
filed on November 5, 1998, IS DENIED.

        13. IT IS FURTHER ORDERED that Tampa Electric Company‟s pending application shall be
processed in accordance with the applicable Commission Rules.

      14. 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

     Waiver Request at 5.
    See, e.g., Duke Power Company at ¶ 9; Wells Rural Electric Company, Order on Reconsideration, DA 99-
1968, at ¶ 7 (WTB PSPWD rel. September 23, 1999).


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