*Pages 1--5 from Microsoft Word - 7319.doc* Federal Communications Commission DA 01- 595 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Application of ) ) RADIOWAVE )FCC File No. A030542 ) For Station WPMZ382 to Operate ) Frequency pair 810/ 855.0625 MHz ) at Chatsworth (Los Angeles), California ) ORDER ON RECONSIDERATION Adopted: March 5, 2001 Released: March 7, 2001 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. Introduction 1. On April 26, 1999, James A. Kay, Jr. (“ Kay”) filed a pleading entitled “Reply” seeking dismissal or denial of the above- captioned application for Station WPMZ382 (Radiowave Application). For the reasons discussed below, we will treat that pleading as a petition for reconsideration of the grant of the Radiowave Application, grant the petition for reconsideration, and rescind Radiowave’s authorization to operate Station WPMZ382. II. Background 2. Kay Modification Application. On June 22, 1993, the FCC granted Kay authority to operate Station WNJA910 on various frequencies in the 800 MHz band, including frequency 855.0625 MHz, in Chatsworth, California. This authority was scheduled to expire on June 22, 1998. On April 26, 1994, Kay filed an application to modify the authorization for Station WNJA910 by adding additional frequencies as well as to surrender the authorization to operate on 855.0625 MHz. 1 The Bureau’s former Licensing Division granted the modification application on October 31, 1995 and removed Kay’s authorization to operate on 855.0625 MHz from the FCC’s licensing database. 2 On November 27, 1995, the Licensing Division informed Kay that, as part of a pending hearing proceeding, it had set aside its grant of the modification application and returned it to pending status. 3 Although the Licensing Division set aside the modification application, it did not restore the information in the FCC’s licensing database to 1 This application was assigned FCC File No. 663289 (Kay Modification Application). 2 See Public Notice, Wireless Bureau Vacates and Supersedes Grants to SMRS Announced by March 17, 1995 Public Notice (Oct. 31, 1995). 3 See Letter from Walter Boswell, Chief, Licensing Division, Wireless Telecommunications Bureau, FCC, to James A. Kay, dated November 27, 1995 (November 27 th Letter). The hearing proceeding, James A. Kay, Jr., Licensee of 152 Part 90 Stations in the Los Angeles, California Area, (WT Docket 94- 147) (Hearing Proceeding), examines Kay’s fitness to be a Commission licensee and is currently pending on exceptions to the initial decision of Administrative Law Judge Joseph Chachkin. 1 Federal Communications Commission DA 01- 595 2 reflect the licensing information prior to the grant of Kay’s modification application. As a result, the FCC’s licensing database no longer indicated Kay’s authorization to operate on 855.0625 MHz. 3. On May 16, 1997, the Bureau’s former Consumer Assistance Branch informed Kay that it was taking back the channels authorized in the modification application because Kay had failed to timely implement the authorized modifications. 4 Kay responded on June 6, 1997, stating that he had not implemented the authorized modifications to Station WNJA910 because the Licensing Division had set aside the modification application and returned it to pending status. 5 Kay further stated that because the Bureau, in the May 16 th Letter, indicated that it had taken back the channel for reassignment, its records should reflect that the modification application remains on file and in pending status and requested that the Bureau correct its licensing data to reflect the parameters associated with Kay’s authorized operations. 6 Additionally, Kay argued that he was not under an obligation to complete construction within a year of October 31, 1995, because the Licensing Division had set aside the modification application on November 27, 1995, and Kay was therefore without authority to implement the proposed modifications. 7 4. Connex Applications. On May 21, 1995, Connex Freight (Connex) filed an application seeking to operate on frequency pair 810/ 855. 0625 MHz at Chatsworth, California. On September 2, 1997, while the Connex Application remained pending, Kay requested dismissal of the Connex Application. 8 Kay opined that the Connex Application was filed because the FCC’s licensing database indicated that the channel was available, and argued that the database was inaccurate because Kay continued to hold a valid authorization for the frequency pair requested by Connex Freight. 9 Kay stated that although the frequency pair would have become available as the result of the grant of its modification application, such grant was set aside by the November 27 th Letter. 10 Kay further stated that “[ a] lthough the Bureau set aside the grant of the requested modification, the database was never updated to reflect that action.” 11 On September 22, 1997, the Branch granted the Connex Application and assigned Connex call 4 Letter from Kathryn M. Garland, Chief, Consumer Assistance Branch, Customer Service Division, Wireless Telecommunications Bureau, FCC to Kay, dated May 16, 1997 (May 16 th Letter). 5 Letter from Robert J. Keller, Counsel for Kay, to Kathryn M. Garland, Chief, Consumer Assistance Branch, Customer Service Division, Wireless Telecommunications Bureau, dated May 16, 1997, and sent to the Bureau on June 6, 1997. 6 Id. 7 Id. 8 Letter from Robert J. Keller, Counsel for Kay, to Terry L. Fishel, Chief, Land Mobile Branch, Licensing Division, Wireless Telecommunications Bureau, FCC, dated September 2, 1997. 9 Id. 10 Id. 11 Id. 2 Federal Communications Commission DA 01- 595 3 sign WPKX960. On October 22, 1997, Kay filed a Petition for Reconsideration of this decision. On November 27, 1998, while the Petition for Reconsideration remained pending, Connex applied for authorization to modify Station WPKX960, specifically seeking permission to reduce the number of mobile units assigned to this station. 12 5. Radiowave Applications. On December 10, 1998, Radiowave filed an application seeking to operate on frequency pair 810/ 855. 0625 MHz at Chatsworth, California (Radiowave Application), essentially seeking authorization to operate on the capacity that Connex was seeking to surrender. On March 31, 1999, Kay filed a petition seeking dismissal or denial of both the Connex Modification Application and the Radiowave Application (Petition to Deny- Connex and Petition to Deny-Radiowave). 13 On April 8, 1999, the Branch granted the Radiowave Application, without explicitly ruling on the Petition to Deny- Radiowave. 14 On April 13, 1999, Radiowave filed an Opposition to the Petition to Dismiss or Deny (Radiowave Opposition). Radiowave represented that it “has no objection to the Commission treating Kay’s petition as a petition for reconsideration.” 15 On April 26, 1999, Kay filed a Reply to the Radiowave Opposition (Kay Reply- Radiowave). On April 29, 1999, the Branch granted Connex’s application to modify Station WPKX960, without explicitly ruling on the Petition to Deny-Connex. 16 6. Related Licensing Actions. On August 1, 2000, the Public Safety and Private Wireless Division, Wireless Telecommunications Bureau (Division) granted Kay’s Petition for Reconsideration and rescinded Connex’s initial authorization. 17 In the Connex Order, the Division determined that: Kay retained an effective and valid authorization for operation on frequency 855.0625 MHz; that Kay did not lose this authorization for failure to implement authorized modifications in a timely fashion; and that the Connex Application was granted in error. 18 12 FCC File No. A022968. 13 On April 26, 1999, Kay filed a motion to disqualify Radiowave’s counsel from further participation in these proceedings. In light of the fact that the counsel in question voluntarily withdrew on May 3, 1999, we will not address the motion to disqualify counsel. 14 See File No. A030542. 15 Radiowave Opposition, p. 1 n. 1. 16 See File No. A022968. 17 See Connex Freight, Order on Reconsideration, 15 FCC Rcd 13345 (WTB PSPWD 2000) (Connex Order). 18 Id. 3 Federal Communications Commission DA 01- 595 4 III. Discussion 7. Section 1. 106( f) of the Commission’s Rules 19 requires that a “petition for reconsideration . . . shall be filed within thirty days from the date of public notice of the final Commission action, as that date is defined in Section 1.4( b) of these rules, and shall be served upon parties to the proceeding. Although the Kay Reply- Radiowave is not labeled as a petition for reconsideration, it complies with the procedural requirements for a petition for reconsideration because it was filed within thirty days of the grant of the Radiowave Application and was served upon Radiowave. 20 Radiowave has also waived any objection to treat Kay’s pleadings as a petition for reconsideration. Accordingly, we will treat the Kay-Reply- Radiowave as a timely filed petition for reconsideration. We will also fully consider the arguments contained in the Radiowave Opposition, which sets forth Radiowave’s reasons why it believes that grant of its application was proper. 8. In the Connex Order, we concluded that Kay retained an effective and valid authorization for frequency 855.0625 MHz at Chatsworth. 21 We also concluded that grant of the Connex application was erroneous because Kay had the exclusive right to operate on the same frequency pair from Chatsworth. 22 The Radiowave Application is indistinguishable from the Connex Application because both applications were inconsistent with Kay’s valid authorization. Accordingly, we will rescind the grant of Radiowave’s authorization and dismiss its application. 9. We disagree with Radiowave’s argument that these matters are governed by the Commission’s statement in Frequency Coordination in the Private Land Mobile Radio Services that “in the case of inconsistencies or discrepancies, the Commission’s database will govern and be used to resolve any disputes.” 23 The Commission intended this “data base rule” to apply to cases involving inconsistencies and discrepancies between the Commission’s databases and those of third parties, not to cases involving errors in the Commission’s database itself. 24 19 47 C. F. R. § 1. 106( f). 20 See Daniel R. Goodman, Receiver; Dr. Robert Chan, Memorandum Opinion and Order and Order on Reconsideration, 13 FCC Rcd 21994, 21959 ¶ 24 (1998) and Sun Over Jupiter Broadcasting, Inc., Order, 8 FCC Rcd 8733 (MMB 1993). 21 See Connex Order, 15 FCC Rcd at 13347 ¶ 7. 22 Id., 15 FCC Rcd at 13347 ¶ 8. 23 Radiowave Opposition at 2, citing Frequency Coordination in the Private Land Mobile Radio Services, 103 FCC 2d 1093, 1113 (1986) ¶ 41. 24 See Replacement of Part 90 by Part 88 to Revise the Private Land Mobile Radio Services and Modify the Policies Governing Them, 12 FCC Rcd 14307, 14333 ¶ 46 (1997) (“ Any disputes that arise due to inconsistencies or discrepancies in the records of different coordinators, however, will be resolved using the Commission’s database.”) (emphasis added). 4 Federal Communications Commission DA 01- 595 5 IV. Conclusion and Ordering Clauses 10. In light of the foregoing considerations, we will treat the Kay Reply- Radiowave as a petition for reconsideration. Based on our review of the record in this proceeding, we find that grant of the petition for reconsideration is warranted. Thus, we will grant the reconsideration petition and rescind the license grant of Radiowave. 11. ACCORDINGLY, pursuant to Sections 4( i) and 405 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), 405, and by Section 1.106 of the Commission’s Rules, 47 C. F. R. § 1.106, IT IS ORDERED that the Petition for Reconsideration filed on April 26, 1999, by James A. Kay Jr., IS GRANTED. 12. IT IS FURTHER ORDERED that, pursuant to Section 4( i) of the Communications Act of 1934, as amended, 154( i) and by Section 1.106 of the Commission’s Rules, 47 C. F. R. § 1. 106 the grant of the license for call sign WPMZ382 to Radiowave IS RESCINDED, and Radiowave’s application (FCC File No. A030542) IS DISMISSED. 13. 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 5