*Pages 1--4 from Microsoft Word - 11730.doc* Federal Communications Commission DA 01- 1728 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of License of CAL WESTERN TERMITE & PEST CONTROL, INC. For Conventional Business Station KVL499, Modjeska and Mount Lukens, California ) ) ) ) ) ) ) ORDER ON RECONSIDERATION Adopted: July 17, 2001 Released: July 20, 2001 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. We have before us a petition for reconsideration filed by Cal Western Termite & Pest Control, Inc. (Cal Western). 1 Cal Western seeks reconsideration of the cancellation of its authorization to operate Conventional Business Station KVL499, Modjeska and Mount Lukens, California. 2 For the reasons set forth below, we dismiss Cal Western’s reconsideration petition because it was filed in the wrong location. After reviewing the record, we decline to take any action to reinstate Cal Western’s license on our own motion because we find that Cal Western has not alleged or demonstrated that the license cancellation was procured by fraud on the Commission’s processes. II. BACKGROUND 2. Cal Western was authorized to operate Station KVL499 at Mount Lukens, California on frequency pair 806/ 851. 9625 MHz. In November 1992, the Commission received an FCC Form 405- A submitted in the name of Cal Western requesting cancellation of the authorization for Station KVL499. 3 The completed FCC Form 405- A was dated November 18, 1992 and signed by a Cal Western owner. 4 Pursuant to that application, the Commission cancelled Cal Western’s license on December 7, 1992. Cal Western asserts that it first learned that its license had been cancelled on September 22 or 23, 1993, when the Cal Western owner learned from another individual that Cal Western’s license had been cancelled. 5 1 Letter from Marcus D. Canipe, owner Cal Western Termite & Pest Control, Inc., to FCC, Gettysburg, PA (received Oct. 4, 1993) (Petition). 2 Petition at 1. 3 Application for Renewal of Radio Station License and/ or Notification of Change of to License Information, FCC Form 405- A, filed by John A. Lemm Sr., on behalf of Cal Western Termite & Pest Control, Inc. (dated Nov. 18, 1992) (Form 405- A). FCC Form 405- A was used to change the name or address of a licensee, to renew a license, or to cancel a license. 4 Id. 5 See Declaration of John A. Lemm, Sr., dated October 29, 1993 at 8 ¶¶ 9- 10, attached as Exhibit B to Motion for Acceptance of Late- Filed Pleading and Supplement to Request for Reconsideration, filed by Arthur B. Cook, Esq., Hill, Farrer & Burrill, on behalf of Cal Western Termite & Pest Control, Inc., to Terry L. Fishel, Chief, Land Mobile Branch (Oct. 29, 1993) (Supplement). 1 Federal Communications Commission DA 01- 1728 2 3. On October 4, 1993, the Commission’s Gettysburg, PA office, via facsimile, received Cal Western’s Petition. 6 In the Petition, Cal Western states that a Cal Western owner signed, without reading, the FCC Form 405- A in order to facilitate a contractual agreement between Cal Western and Lucky’s Two Way Radio (Lucky’s) to move Cal Western’s repeater operations to the Mount Lukens/ Santiago Peaks, California area. 7 Cal Western alleges that through misrepresentation and deception, Lucky’s cancelled Cal Western’s license without Cal Western’s knowledge.” 8 Cal Western states that it did not intentionally cancel its license or authorize anyone to cancel its license and that it seeks reinstatement. 9 On October 29, 1993, Cal Western submitted, via facsimile, a Supplement to the Commission’s Gettysburg, PA Office. 10 In the Supplement, Cal Western urges the Commission to accept its late- filed pleading because Cal Western did not receive notice of the license cancellation and the license cancellation was procured, allegedly, by fraud. 11 III. DISCUSSION 4. We dismiss Cal Western’s petition because it was not filed at the correct location. Section 1.106( i) of the Commission’s Rules provides that a petition for reconsideration must be submitted to the Secretary, Federal Communications Commission, Washington, D. C. 20554. 12 The Commission maintains different offices for different purposes, and persons filing documents with the Commission must take care to ensure that their documents are filed at the correct location specified in the Commission’s Rules. 13 Applications and other filings not submitted in accordance with the correct addresses or locations will be returned to the filer without processing. 14 A document is filed with the Commission upon its receipt at the location designated by the Commission. 15 Accordingly, the plain 6 Petition at 1. 7 Id.; Supplement at Exhibit B 8- 9 ¶ 12. 8 Petition at 1. 9 Id. 10 See Supplement. We note that Cal Western filed its Supplement, partly in response to a letter sent on behalf of Lucky’s to one of Cal Western’s owners subsequent to the filing of Cal Western’s reconsideration petition. Id. at 3. See Letter from Mr. Dennis C. Brown, Esq., Brown and Schwaninger, to Mr. Marcus D. Canipe, Cal Western Termite & Pest Control, Inc. (Oct. 22, 1993). Cal Western also filed a response to pleadings filed by James A. Kay, Jr., the owner of Lucky’s. See Reply to Opposition to Motion of Acceptance of Late Filed Pleading and Opposition to Request for Reconsideration and Opposition to Supplement to Request for Reconsideration filed by Arthur B. Cook, Esq., Hill, Farrer & Burrill, on behalf of Cal Western Termite & Pest Control, Inc. (Nov. 22, 1993). 11 Supplement at 2. On November 9, 1993 and December 2, 1993 James A Kay, Jr., filed pleadings contesting Cal Western’s claims, including Cal Western’s fraud allegations. See Opposition to Motion of Acceptance of Late Filed Pleading and Opposition to Request for Reconsideration and Opposition to Supplement to Request for Reconsideration, filed by James A. Kay, Jr. (Nov. 9, 1993); Supplement to Opposition to Motion of Acceptance of Late Filed Pleading and Opposition to Request for Reconsideration and Opposition to Supplement to Request for Reconsideration filed by James A. Kay, Jr. (Dec. 2, 1993). 12 47 C. F. R. § 1.106( i). 13 47 C. F. R. § 0. 401. 14 Id. 15 47 C. F. R. § 1. 7; First Auction of Interactive Video and Data Service (IVDS) Licenses, Request for Waiver of Applications Deadline, Memorandum Opinion and Order, 11 FCC Rcd 1134, 1135 (1996); Complaints Regarding Cable Programming Services Prices, Amended Order on Reconsideration, 10 FCC Rcd 12778, 12780 n. 14 (CSB 1995). 2 Federal Communications Commission DA 01- 1728 3 language of the Commission’s Rules indicates that a petition for reconsideration submitted to the Commission’s Gettysburg, Pennsylvania, office is not properly filed. 16 5. Based on a review of our records, it does not appear that the Petition was ever filed with the Office of the Secretary. Therefore, we find that the Petition was not timely filed in the proper location. Moreover, Cal Western did not request a waiver to allow it to file its reconsideration petition in Gettysburg, as opposed to filing it with the Office of the Secretary. Consequently, absent a waiver, we conclude that Cal Western’s Petition should be dismissed as improperly filed. 6. Even when a proper petition for reconsideration is not filed, we will consider taking action on our own motion in cases where there is fraud upon the Commission’s processes. 17 In this case, however, there is insufficient evidence before us to conclude that the cancellation of Cal Western’s license was procured by fraud on the Commission’s licensing processes. Cal Western alleges that Lucky’s allegedly induced Cal Western to sign an incomplete FCC Form 405- A by making false statements. Cal Western states that the incomplete FCC Form 405- A was signed because Cal Western relied on Lucky’s representations that the form was needed to move Cal Western’s repeater operations. 18 Lucky’s then allegedly completed and submitted FCC Form 405- A to cancel Cal Western’s authorization. Cal Western admits that a Cal Western owner signed the FCC Form 405- A. As such, the issue of fraud does not touch upon the Commission’s processes, but rather, solely involves interactions between and actions by Cal Western and Lucky’s. When the issue of fraud does not implicate the Commission’s processes, the Commission has consistently declined to take action to undo final assignments or cancellations of licenses. 19 Moreover, given that a Cal Western owner signed the FCC Form 405- A, it is unclear whether any fraud occurred. 20 By signing the FCC Form 405- A, the Cal Western owner certified, under penalty of perjury, that the information contained on the form was correct. With respect to the dispute between Cal Western and Lucky’s as to whether their agreement authorized or required the cancellation of Cal Western’s license, the proper forum for resolving that private contractual dispute is a court of competent jurisdiction. 21 Based on the record before us, we find that Cal Western has not alleged or demonstrated fraud on the Commission’s processes that would warrant taking action on our own motion to undo the license cancellation. 16 See, e. g., Memorandum of Agreement between the Federal Communications Commission and Elkins Institute Inc., Order on Reconsideration, 14 FCC Rcd 5080 (WTB 1999) (determining that a facsimile copy to a division office neither complied with the Commission’s Rules nor ameliorated the late filing with the Secretary’s office); Columbia Millimeter Communications, LP, Order on Reconsideration, 14 FCC Rcd 2782 (WTB PSPWD 1999) (finding that a petition for reconsideration sent to the Commission’s lock box at Mellon bank neither complied with the Commission’s Rules nor ameliorated the late filing with the Secretary’s office), aff’d., Order on Reconsideration, 15 FCC Rcd 10251 (WTB PSPWD 2000). 17 See e. g., Champion Communications Services, Inc., Order, 15 FCC Rcd 12832 (WTB PSPWD 2000); Comtex Communications, Inc., Order, 15 FCC Rcd 11730 (WTB PSPWD 2000). 18 See Supplement at Exhibit B p. 8- 9 ¶ 12. 19 See e. g. Applications of Clarklift of San Jose, Inc., and Moore Material Handling Group, Order on Further Reconsideration, DA 01- 116 ¶ 9 n. 27 (PSPWD 2001); Edison Cellular, Memorandum Opinion and Order on Reconsideration, 8 FCC Rcd 2736, 2337 n. 9 (CCB 1993); TV- 8, Inc., Memorandum Opinion and Order, 2 FCC Rcd 1218, 1220 n. 10 (1987). 20 See e. g. P& P Enterprises, Inc., Cullen Electric Co., and Will County Well & Pump Co., Inc., Memorandum Opinion and Order, 15 FCC Rcd 8418, 8419 ¶ 3 (WTB ENF 1999). 21 See Listener’s Guild, Inc., v. FCC, 813 F. 2d 465, 469 (D. C. Cir. 1987). 3 Federal Communications Commission DA 01- 1728 4 IV. CONCLUSION 7. We dismiss Cal Western’s petition for reconsideration because it was filed in the wrong location. Additionally, we decline to take action to reinstate Cal Western’s license on our own motion because Cal Western has not alleged or demonstrated that the license cancellation was procured by fraud on the Commission’s processes. Therefore, we dismiss Cal Western’s reconsideration petition and supplement. V. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED 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 and the “Motion for Acceptance of Late Filed Pleading and Supplement to Request for Reconsideration” submitted by Cal Western Termite & Pest Control, Inc., and received in Gettysburg, Pennsylvania on October 4, 1993, and October 29, 1993, respectively, ARE DISMISSED. 9. 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 4