*Pages 1--3 from Microsoft Word - 5548.doc* Federal Communications Commission DA 00- 2834 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Application of JONACH ELECTRONICS Petition for Reconsideration of Grant of License for Station WPNX320, Morristown, New Jersey ) ) ) ) ) ) FCC File No. A036957 ORDER ON RECONISDERATION Adopted: December 15, 2000 Released: December 18, 2000 By the Chief, Policy and Rules Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. Introduction. On June 1, 2000, Atlantic Express Transportation Group, Inc., and its wholly owned subsidiary, Winsale, Inc. (Winsale), requested reconsideration of a decision by the Public Safety and Private Wireless Division, Licensing and Technical Analysis Branch (Branch) regarding the grant of a Trunked Industrial/ Business Radio Service license to Jonach Electronics (Jonach) for Station WPNX320, Morristown, New Jersey. 1 For the reasons stated below, the Petition is dismissed. 2. Background. On July 22, 1999, the Commission granted a license to Jonach for Station WPNX320 to operate on frequencies 157.4475 MHz and 157.4925 MHz. 2 Winsale’s Petition requested reconsideration of this grant, claiming that WPNX320 unlawfully interferes with the operation of Station WNVG529, licensed to Winsale in November of 1995, to operate on 157.4850 MHz, Jersey City, New Jersey. Winsale contends that two of the five channels allocated to Jonach’s station, 157.4475 MHz and 157.4925 MHz, cause adjacent- channel interference to Winsale’s station operation on 157.4850 MHz. 3 Winsale further submits that as Jonach was proposing trunked operations, 4 the latter was required to either obtain the consent of any affected licensee( s) to its proposed operations, or provide an engineering study showing that the proposed system’s interference contour would not overlap the service area contour of any affected licensee( s). 5 Winsale asserts that neither of these criteria was met. 6 Winsale submits that, since it 1 Atlantic Express Transportation Group, Inc., and Winsale, Inc. (Winsale), Petition for Reconsideration (filed June 1, 2000) (Petition). 2 Application File No. A 036957. 3 Petition at 1. 4 Trunked radio system is a method of operation in which a number of radio frequency pairs are assigned to mobile and base stations in the system for use as a trunked group. See 47 C. F. R. § 90.7. 5 Petition at 1. 6 Id. at 1- 2. 1 Federal Communications Commission 2 is in the business of providing transportation services, it cannot afford to incur interference to its radio operations. 7 3. According to Winsale, the Industrial Telecommunications Association, Inc. (ITA), first notified it of the WPNX320 license and the adjacent channel interference in a letter dated May 18, 2000. 8 Winsale further submits that the frequency coordinator used by Jonach erred in certifying the WPNX320 application to the Commission, and the Commission erred in granting the subject license application. 9 Because WPNX320 is a Private Land Mobile Radio station, grant of the subject license application did not appear on public notice. Consequently, argues Winsale, the time for appealing the grant of the application did not start until Winsale received actual notice of the grant of the application on May 18, 2000. 10 As the Petition was filed on June 1, 2000, that is within thirty days of receipt of actual notice on May 18, 2000, Winsale submits the pleading is timely filed. 11 4. Discussion. Section 405 of the Communications Act of 1934, as amended, sets forth the requirements that a petitioner must satisfy before we may consider the petitioner’s pleadings on reconsideration. 12 Section 405, as implemented by Section 1.106( f) of the Commission’s Rules, requires that a petition for reconsideration be filed within thirty days from the date of public notice of the Commission’s action. 13 The date of public notice is determined in accordance with Section 1. 4 of the Commission’s Rules. 14 In this case, the date of public notice of the Commission’s action is July 22, 1999, the date the subject licensing action was mailed “to persons affected by the action,” because the grant to Jonach was not published in the Federal Register, released, or placed on public notice. 15 We note that while the pertinent rule speaks of the date a document is sent “to persons affected by the action,” Winsale is not a “person affected by the action” because it was not a party to the application proceeding. Thus, the last day for filing a timely petition for reconsideration was August 21, 1999. 5. The Commission received the Petition on June 1, 2000, more than nine months past the filing deadline. The filing requirement of Section 405( a) of the Act applies even if the petition for 7 Id. at 2. 8 For ITA’s interference analysis, see id. at Attachment 1. 9 Id. at 2. 10 Id. 11 Id. Pursuant to 47 C. F. R. § 1.106( i), the Petition was correctly filed at the Office of the Secretary, Washington, D. C. 12 47 U. S. C. § 405( a). 13 47 C. F. R. § 1.106( f). 14 47 C. F. R. § 1.4. 15 See 47 C. F. R. § 1.4( b)( 5). 2 Federal Communications Commission 3 reconsideration is filed only one day late. 16 Consequently, we conclude that Winsale’s Petition should be dismissed as untimely filed. 17 6. Accordingly, IT IS ORDERED, that, pursuant to Sections 4( i) and 405 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), 405, and Section 1.106 of the Commission’s Rules, 47 C. F. R. § 1.106, the petition for reconsideration filed by Atlantic Express Transportation Group, Inc., and its wholly owned subsidiary, Winsale, Inc., on June 1, 2000, IS DISMISSED. 18 7. 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 John J. Schauble Chief, Policy and Rules Branch Public Safety and Private Wireless Division Wireless Telecommunications Bureau 16 See, e. g., Panola Broadcasting Co., Memorandum Opinion and Order, 68 FCC 2d 533 (1978); Metromedia, Inc., Memorandum Opinion and Order, 56 FCC 2d 909, 909- 10 (1975); In the Matter of Memorandum of Agreement Between the Federal Communications Commission; and Elkins Institute, Inc., Order on Reconsideration, 14 FCC Rcd 5080, 5081 ¶ 3 (WTB 1999). 17 See Reuters Ltd v. FCC, 781 F2d 946, 951- 52 (D. C. Cir. 1986). See also Petition for the Amendment of Commission Rules to Establish First and Second Class Radiotelephone Operator Licenses, Order, 10 FCC Rcd 3196 (1995). 18 While we are dismissing the petition for reconsideration, our action is without prejudice to the right of the Branch to independently investigate this matter and take any appropriate action. 3