NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 ) ) Request for Special ) Temporary Authority to Permit ) Continued Conditional Operation ) of Part 90 Facilities to be ) Reclassified as CMRS as of ) August 10, 1996 ) ) ) ) ORDER Adopted: August 8, 1996 Released: August 9, 1996 I. INTRODUCTION 1. On August 2, 1996, the Personal Communications Industry Association ("PCIA"), on behalf of all affected Part 90 licensees, filed a request for a grant of special temporary authority ("STA") of 180 days to permit continued operation of Part 90 Private Mobile Radio Services ("PMRS") facilities that will be reclassified as Commercial Mobile Radio Services ("CMRS") on August 10, 1996 and are currently operating under conditional authority pursuant to Section 90.159(b). For the following reasons, we grant a blanket 120-day STA to all such affected Part 90 licensees. II. BACKGROUND 2. In the 1993 Budget Act, Congress created the CMRS regulatory classification and mandated that licensees in certain Part 90 services be reclassified as CMRS. The Budget Act also provided that many of these reclassified licensees, including all private paging licensees, would continue to be treated as PMRS until August 10, 1996, when they would be reclassified as CMRS and be subject to CMRS rules. 3. Section 90.159 of the Commission's rules provides that applicants in Part 90 services that require frequency coordination may operate conditionally upon filing an application with proof of frequency coordination. CMRS applicants, however, are generally prohibited from commencing construction or operating facilities prior to the license grant, unless they obtain an STA. In the CMRS Third Report and Order, the Commission determined that this rule would be applied to reclassified Part 90 licensees. The Commission stated that all existing conditional grants held by reclassified PMRS providers would cancel on August 10, 1996, and that the reclassified PMRS providers would then be subject to Section 90.169, which permits construction prior to license grant under certain conditions, but does not allow conditional operation. III. SUMMARY OF PCIA REQUEST 4. PCIA argues that several thousand Part 90 facilities are currently in operation under conditional grants pursuant to Section 90.159, which will expire on August 10, 1996 when reclassification takes effect. Those facilities are primarily private carrier paging (PCP) facilities operating on channels that are subject to frequency coordination. In addition, some applicants for two-way Business Radio channels are operating conditionally while their applications are pending. PCIA contends that without an STA facilities currently being used to meet the service needs of the public will have to be turned off pending completion of Commission processing of the applications. PCIA argues that the public interest would be served by permitting carriers to continue to serve the public using facilities currently operating under STAs or conditional grants. Additionally, PCIA maintains that all Part 90 applicants covered by this request for STA have certified on their applications that neither the applicant nor any other party to the application is subject to a denial of Federal benefits, including FCC benefits, pursuant to Section 5301 of the Anti-Drug Abuse Act of 1988, 21 U.S.C.  862, because of a conviction for possession or distribution of a controlled substance. IV. DISCUSSION 5. We believe that the uniqueness of this transition from PMRS to CMRS constitutes an extraordinary circumstance sufficient to justify the request for STA under Section 309(f) of the Communications Act of 1934, as amended. We find that requiring currently operating facilities to cease operations, thus cutting off service to the public, would not further the goal of establishing regulatory symmetry among similar mobile services. Additionally, the disruption of service would hurt competition by forcing applicants to turn off facilities that will be licensed in the near future. We also note that the processing time for Part 90 applications has recently increased, due in large part to a large influx of paging applications filed prior to our paging application freeze or subsequently filed under our interim licensing rules. Thus, we conclude that the public interest warrants the granting of a blanket STA to permit continued operation of those Part 90 facilities currently operating pursuant to conditional authority. 6. The STA will commence on August 10, 1996, and will continue for a period not to exceed 120 days. We believe that this is sufficient time to ensure that the relevant applications are processed. The STA will apply only to applicants who have commenced operations under Section 90.159 as of August 10, 1996. Applicants who have filed applications prior to August 10, 1996 but who are not yet operating are not authorized to do so by this order. 7. Additionally, we accept PCIA's representation that neither the applicants nor any other party to the affected applications are subject to a denial of Federal benefits, including FCC benefits, pursuant to Section 5301 of the Anti-Drug Abuse Act of 1988, 21 U.S.C.  862, because of a conviction for possession or distribution of a controlled substance. Our rules ordinarily require each applicant filing a request for STA to include such a certification. Under these circumstances, however, it would be impractical to require a Section 1.2002(a) certification from each applicant. Instead, for purposes of this blanket STA, we rely on the fact that each applicant has certified on its license application form that it is in compliance with Section 1.2002(a). If it is later determined that any applicant fails to meet the above-mentioned requirements, or that the license is not otherwise grantable, the affected applicant's STA will cancel immediately. Applicants will assume the risk for any losses that might result. V. ORDERING CLAUSE 8. Accordingly, pursuant to authority delegated by Section 0.331 of the Commission's rules, 47 C.F.R.  0.331, IT IS HEREBY ORDERED that Request for Special Temporary Authority filed by the Personal Communications Industry Association is hereby GRANTED to the extent stated herein. FEDERAL COMMUNICATIONS COMMISSION Gerald P. Vaughan Deputy Bureau Chief Wireless Telecommunications Bureau