*Pages 1--3 from Microsoft Word - 6996.doc* Federal Communications Commission DA 01- 474 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of ) ) NORCOM COMMUNICATIONS CORP. ) FCC File No. D111212 ) Conventional Industrial/ Business ) Station WNBD235, Central Islip, New York ) ORDER ON RECONSIDERATION Adopted: February 20, 2001 Released: February 22, 2001 By the Deputy Chief, Policy and Rules Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. Introduction. By letter received December 23, 1999, Tower Landscaping, Inc. (Tower) requests reconsideration of the December 7, 1999 action by the Public Safety and Private Wireless Division, Licensing and Technical Analysis Branch (Branch) granting the above- captioned assignment application. 1 The subject application sought authorization to assign Conventional Industrial/ Business Station WNBD235, Central Islip, New York, from Tower to Norcom Communications Corp. (Norcom). For the reasons set forth below, we dismiss the petition for reconsideration. 2. Background. In the 1980s, Tower was granted a license to operate Station WNBD235 on frequency pair 471.7125/ 474. 7125 MHz. In August 1998, Norcom filed an application with the Commission seeking authorization to assign Station WNBD235 from Tower to Norcom. 2 The application contained a certification form, signed by Robert Hole, certifying Tower’s consent to the assignment of the station. 3 On December 7, 1999, the Branch granted the assignment application. Also on December 7, 1999, Tower electronically filed a renewal application, 4 which the Branch later dismissed on December 30, 1999, because payment was not received within ten days of application. 3. By letter dated December 15, 1999 and received at the Commission’s Gettysburg, Pennsylvania facility on December 23, 1999, Tower requested reconsideration of the December 7, 1999 grant of the assignment application. Tower stated, “It has recently come to our attention that [the authorization for Station WNBD235] was transferred over to another party.” 5 Tower asked the Commission to set aside and rescind the assignment so that Tower can retain the authority to operate Station WNBD235. 6 1 Letter from Tower Landscaping, Inc., to FCC, Private Radio Bureau, Gettysburg, Pennsylvania (received Dec. 23, 1999). 2 See id. 3 See FCC Form 1046. 4 See FCC File No. R434536. 5 Id. 6 Id. 1 Federal Communications Commission DA 01- 474 2 4. Discussion. We will dismiss Tower’s petition because it was not properly filed. 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. 7 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. 8 Applications and other filings not submitted in accordance with the correct addresses or locations will be returned to the filer without processing. 9 A document is filed with the Commission upon its receipt at the location designated by the Commission. 10 Accordingly, under the plain language of the Commission’s Rules, a petition for reconsideration submitted to the Commission’s Gettysburg, Pennsylvania, office is not properly filed. 11 5. The petition was never filed with the Office of the Secretary. Therefore, we find that the Petition was not timely filed in the proper location. Moreover, Tower did not request a waiver to file its Petition in Gettysburg, as opposed to filing it with the Office of the Secretary. Consequently, absent a waiver, we conclude that Tower’s petition should be dismissed as improperly filed. 12 6. In addition, Section 1. 106( f) of the Commission’s Rules provides that a petition for reconsideration must be served upon the parties to the proceeding. 13 There is no indication that the petition was served on Norcom. 14 7 47 C. F. R. § 1. 106( i). 8 47 C. F. R. § 0. 401. 9 Id. 10 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). 11 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); see also Petition for Reconsideration Filing Requirements, Public Notice, 15 FCC Rcd 19473 (WTB 2000). 12 The courts have noted a strong policy in favor of administrative finality, and have held that administrative proceedings that have become final will not be reopened unless there has been fraud on the agency's or court's processes, or unless the result is manifestly unconscionable. See Hazel- Atlas Co. v. Hartford Co., 322 U. S. 238 (1944); Greater Boston Television Corp. v. FCC, 463 F. 2d 268 (D. C. Cir. 1971). The Commission has applied that standard to its own proceedings. See Radio Para La Raza, Memorandum Opinion and Order, 40 FCC 2d 1102, 1103 ¶ 6 (1973). That standard, however, is not applicable here, because there is no claim or evidence in Tower’s Petition that the decision granting the assignment application was procured by fraud on the Commission’s application process or that the result is manifestly unconscionable. 13 47 C. F. R. § 1. 106( f). 14 We note that Section 1.47( g) of the Commission’s Rules, 47 C. F. R. § 1.47, states that failure to make proof of service will not affect the validity of service. The Commission may allow the proof to be amended or supplied at 2 Federal Communications Commission DA 01- 474 3 7. 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, that the petition for reconsideration submitted by Tower Landscaping, Inc. and received in Gettysburg, Pennsylvania on December 23, 2000 IS DISMISSED. 8. 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 Scot Stone Deputy Chief, Policy and Rules Branch Public Safety and Private Wireless Division Wireless Telecommunications Bureau any time, unless to do so would result in material prejudice to a party. In the instant matter, we are not requiring Tower to provide proof that it timely served Norcom with its Petition, because the Petition is being dismissed as not properly filed. 3