IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ___________ No. 15-1003 ___________ LAWRENCE BEHR APPELLANT v. FEDERAL COMMUNICATIONS COMMISSION APPELLEE ___________ FCC OPPOSITION TO MOTION FOR SUMMARY REVERSAL ___________ JONATHAN B. SALLET GENERAL COUNSEL DAVID M. GOSSETT DEPUTY GENERAL COUNSEL RICHARD K. WELCH DEPUTY ASSOCIATE GENERAL COUNSEL C. GREY PASH, JR. COUNSEL FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D. C. 20554 (202) 418-1740 MARCH 4, 2015 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 1 of 107 TABLE OF CONTENTS Introduction ................................................................................ 1 Statement of Facts ...................................................................... 2 A. Background .................................................................... 2 B. The Order On Appeal .................................................... 5 Argument ................................................................................... 8 Appellant Has Not Satisfied The High Standard For Summary Disposition Of This Appeal. ............................... 8 A. The FCC Properly Held That Section 1.110 Was Inapplicable To The Grant Of Behr’s Modification Application. ............................................... 9 B. The FCC Properly Dismissed Behr’s Application For Review Of The Waiver Denial Because He Had Failed To Preserve His Administrative Review Rights. .............................. 15 C. The FCC’s Delays In Processing Behr’s Application Do Not Justify Grant Of The Motion. ....... 16 Conclusion ............................................................................... 18 Appendix USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 2 of 107 INTRODUCTION Appellant Behr has failed to demonstrate that this case is the rare circum- stance in which summary reversal of an agency action is appropriate. The principal issue in dispute here involves the FCC’s interpretation of an FCC procedural rule, 47 C.F.R. § 1.110, that allows a license applicant to demand a hearing in certain limited circumstances where the agency has partially or conditionally granted a radio license application. The FCC’s determination that this rule did not apply in appellant’s case because it had fully granted his application to modify his license warrants deference, is consistent with agency and judicial precedent, and is plainly reasonable. Indeed, this Court specifically endorsed the Commission’s construction of this rule as not applying in very similar circumstances more than 40 years ago, in Buckley-Jaeger Broadcasting Corp. v. FCC, 397 F.2d 651 (D.C. Cir. 1968). Behr’s attempt to distinguish this precedent in his motion is unpersuasive. Appellant Behr also claims that the full Commission did not adequately address his petition for waiver of a rule requiring that he complete construction of his station within one year. But Behr indisputably failed to follow the established agency rules governing review of the Wireless Telecommunications Bureau’s denial of his waiver petition. The Commission properly dismissed his effort to challenge the waiver denial outside those rules, finding no basis to disregard its established procedures. Behr stresses the Commission’s mistakes and delays in processing his appli- cation. Those missteps were unfortunate but, contrary to Behr’s claims, are not USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 3 of 107 - 2 - relevant to the issues before the Court and do not warrant reversal at all, much less summary reversal. STATEMENT OF FACTS A. Background In 1993, the Commission conducted an initial lottery for licenses to provide private land mobile radio service in the 220 MHz band. More than 59,000 applica- tions were filed to participate in the lottery, one of which was filed by Appellant Behr for a license to serve the Denver area. He won the lottery and became the “tentative selectee.”1 The Commission then requested that a number of selectees, including Behr, resubmit corrected applications with additional technical informa- tion before those applications could be granted. Behr did so in a timely manner, but the Commission misplaced the application and, believing that Behr had not responded, granted a license in Denver to the second tentative selectee from the lottery for that city. To correct this administrative error once it became apparent, the Commis- sion, on its own motion and, admittedly after a lengthy period, set aside the grant to the second-place lottery winner and reinstated Behr’s application. See Lawrence Behr, 17 FCC Rcd 19025 (WTB 2002) (App. 58). Behr’s application was granted on January 8, 2003. 1 Approximately 3800 applicants were tentatively selected. See Commission Announces Tentative Selectees for 220-222 MHz Private Land Mobile “Local” Channels, Public Notice, DA 93-71 (Jan. 26, 1993) (App. 70). (References to “App. --” are to the Appendix to this motion.) USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 4 of 107 - 3 - Behr was authorized to begin construction of his station at that time. Licen- sees in this service are provided 12 months to construct a station once the applica- tion is granted. See 47 C.F.R. § 90.725(f). Indeed, the order reinstating Behr’s application specifically cautioned that if the application were subsequently “grant- ed and he does not timely construct, any authorization granted to Behr would auto- matically terminate and Net Radio, as the Denver geographic licensee, would have reversionary rights in those frequencies ….” Lawrence Behr, 17 FCC Rcd at 19028 n.15 (App. 61), citing, 47 C.F.R. 90.763(b); see also 47 C.F.R. § 90.725(f). On June 2, 2003, Behr filed an application to modify his license by updating certain information with respect to the station and changing the station’s class. App. 42. Along with the application, Behr also filed a petition for waiver of the construction requirements in 47 C.F.R. § 90.725 in order to obtain more time to construct the station. App. 51. Rather than the one-year construction period appli- cable to his class of license, he sought a five- to ten-year period applicable to a different class of licenses. (App. 54-55). The Bureau denied the waiver petition on November 12, 2003. See App. 40. The ruling found that Behr had failed to provide adequate justification for waiver of the rule, noting in particular that his attempt to compare his license with different types of licensees that had been provided longer construction periods was “incorrect.” App. 41. The separate license modification application was granted unconditionally in a different Bureau-level action on November 17, 2003. See FCC File No. 0001332167. On December 17, 2003, Behr filed a letter, purportedly under 47 C.F.R. USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 5 of 107 - 4 - § 1.110, rejecting “the grant as made” and requesting that the Commission “vacate the original action and set the application for hearing.” See App. 39. In a January 2007 ruling, the Bureau dismissed the hearing request, explaining that Section 1.110 applies only to instances where the Commission “grants any application in part, or with any privileges, terms, or conditions other than those requested,” and that in this case Behr’s modification application had been granted in full and with- out condition. Letter to Donald J. Evans, 22 FCC Rcd 1798 (WTB 2007) (App. 37). The Bureau noted that the Commission had previously rejected a hearing request filed in a similar situation as inappropriate under Commission rules, and that this Court affirmed that interpretation of Section 1.110. Id. at 1-2 & n.7 (citing Buckley-Jaeger, 397 F.2d at 656). As for the separate denial of his waiver petition, the ruling pointed out that a petition for reconsideration or an application for Commission review of the Bureau’s action are the two appropriate vehicles for challenging such a denial, and that Behr had submitted neither. See id. at 1799 (App. 38); see also 47 U.S.C. § 405 (reconsideration); 47 C.F.R. § 1.106 (same); 47 C.F.R. § 1.115 (application for review). The ruling also noted that “because Behr failed to construct [the sta- tion] by the applicable 12-month deadline, the license cancelled automatically on January 8, 2004 pursuant to [47 C.F.R. §] 90.725(f).” Id. On February 13, 2007, Behr filed a petition for reconsideration of that rul- ing. He claimed that the Bureau erred in dismissing his Section 1.110 petition for hearing because it was the Commission’s action of denying the waiver request but USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 6 of 107 - 5 - granting the underlying application that “left Behr with no choice but to reject the grant and request a hearing.” App. 32. The Bureau denied that petition, pointing out that in his modification application Behr had sought three specific modifica- tions and that the application with those requests was granted independently of the distinct petition for waiver of the construction period rule, which was separately denied. Lawrence Behr, 24 FCC Rcd 7196, 7198 (WTB 2009) (App. 28). The order found that the initial Bureau ruling was consistent with precedent and had been correct in concluding that Section 1.110 did not apply in this situation. The Bureau explained that Buckley-Jaeger was on point: “Buckley Jaeger concerned a renewal application, which the Commission granted, with an attached request for exemption from the rules, which the Commission denied. The court expressly noted that the relief under Section 1.110 was inapplicable because the Commission granted the license renewal application in full, and denied only the request for exemption that was filed together with the application.” Id. ¶ 6 (citing Buckley Jaeger, 397 F.2d at 652-53) (App. 30). B. The Order On Appeal Behr sought review by the full Commission of the Bureau’s reconsideration order denying his request for a hearing pursuant to 47 C.F.R. § 1.110. See App. 20. The application for review raised two questions: (1) whether grant of his modifica- tion application while denying his separate petition for waiver constituted only a partial grant of the application, making the provisions of Section 1.110 applicable, and (2) whether, in the circumstances of this case, the Bureau should have waived USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 7 of 107 - 6 - the construction permit limits of the rules applicable to his category of station, extending the time for him to construct this station to the much longer periods provided for a different category of station. Id. The Commission rejected Behr’s contention that the separate Bureau actions granting his modification application and denying his petition for waiver amounted to one determination only partially granting the modification application, to which Section 1.110 of the rules would apply. Lawrence Behr Application, 29 FCC Rcd 15924, 15932 ¶22 (2014) (MO&O) (App. 1, 9). The Commission agreed with the Bureau that the agency’s 1967 decision in AM-FM Program Duplication, 8 F.C.C.2d at 2-5, affirmed by this court in Buckley-Jaeger, 397 F.2d at 655-56, was controlling. MO&O ¶¶18-19 (App. 8). Indeed, the Commission noted, Behr had abandoned “his earlier attempts to distinguish his situation from the nearly identical facts in Buckley-Jaeger v. FCC, making no mention of the case at all in his Application for Review.” Id. ¶21 (App. 9). Behr’s claim that grant of his modification application coupled with denial of his waiver petition constituted a partial grant of the modification application, the Commission concluded, was both inaccurate and inconsistent with FCC and judi- cial precedent. MO&O ¶22 (App. 9). The Commission found that Behr’s modi- fication application and waiver petition in fact “contained two separate indepen- dent types of requests – one type constituted the application to correct and modify, within the parameters of the current rules, the administrative aspects of the license, while the other type sought relief apart from the specific terms of the license (i.e., USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 8 of 107 - 7 - to obtain a waiver of the build-out schedule set out in the Commission’s rules).” Id. ¶24 (App. 10). These were the same circumstances, the Commission con- cluded, in which it had previously determined that Section 1.110 did not apply in the ruling affirmed by this Court in Buckley-Jaeger. See 397 F.2d at 655-56 (App. 83-84). The Commission found that agency and judicial precedent cited by Behr were inapplicable since all involved either circumstances in which partial or con- ditional grants were clearly at issue and Section 1.110 did apply, or in which fac- tors other than Section 1.110 had led to the result. See MO&O ¶¶26-35 (App. 11- 13). As for the Bureau’s denial of Behr’s petition for waiver of the rule govern- ing the construction period for this station, the Commission concluded that Behr had failed to file either a petition for reconsideration or application for review of the denial ruling within the time periods provided by statute and rule and had never requested additional time for such a filing. MO&O ¶¶ 39-43 (App. 15-17). In addi- tion, the Commission concluded that “this case presents no circumstances, extra- ordinary or otherwise, that call into question the propriety of giving force to” the deadlines for seeking further review of agency staff rulings. Id. ¶44 (App. 18). Finally, the Commission “observe[d] that even were we to examine the factual assertions that Behr has made to justify additional time to build – whether the ten more years that Behr requested or any smaller amount of time – we see nothing in those assertions or in the way the Wireless Bureau handled them that would have USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 9 of 107 - 8 - warranted grant of the requested relief.” Id. ¶43 (App. 17). ARGUMENT APPELLANT HAS NOT SATISFIED THE HIGH STANDARD FOR SUMMARY DISPOSITION OF THIS APPEAL. Summary disposition will be granted only “where the merits of the appeal or petition for review are so clear that ‘plenary briefing, oral argument, and the tradi- tional collegiality of the decisional process would not affect our decision.’” Cas- cade Broadcasting Group, Ltd. v. FCC, 822 F.2d 1172, 1174 (D.C.Cir.1987), quot- ing, Sills v. Bureau of Prisons, 761 F.2d 792, 793-94 (D.C. Cir. 1985); see also Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.), cert. denied, 449 U.S. 994 (1980). “Agency action,” the Court has explained, “will be subject to summary review by motion only where the moving party has carried the heavy burden of demonstrating that the record and the motions papers comprise a basis adequate to allow the “fullest consideration necessary to a just determination.” Cascade Broadcasting, 822 F.2d at 794. The Court has specifically cautioned that motions for summary reversal are “rarely granted.” See Handbook of Practice and Internal Procedures at 36 (D.C. Cir., Nov. 12, 2013). Behr’s motion falls far short of meeting this exacting standard. The Com- mission order in this case clearly explains why Behr’s claims are entirely without merit, including the fact that his primary argument depends on an interpretation of a Commission rule that conflicts with a prior FCC order interpreting that rule, which this Court affirmed. Summary disposition is equally inappropriate in these USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 10 of 107 - 9 - circumstances because, as the Commission’s order also demonstrates, Behr failed to follow established rules for challenging the denial of his petition for rule waiver, and his application for review was properly dismissed by the Commission. Behr has not demonstrated in his motion that the FCC’s decision in the order on appeal is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. A. The FCC Properly Held That Section 1.110 Was Inapplicable To The Grant Of Behr’s Modification Application. Behr’s appeal relies on the proposition that the denial of his waiver petition seeking additional time to construct his station, along with the separate grant in full of his modification application, amounted to a single action that resulted in a par- tial denial of the application. This circumstance, according to Behr, gave rise to the procedures set out in 47 C.F.R. § 1.110 that allow a party whose license applica- tion is partially or conditionally granted to reject that less-than-complete grant and demand an evidentiary hearing. See Mot. 2, 7-9. As the Commission explained in an extended discussion below, this is both an incorrect interpretation of the rule and a misreading of clear agency precedent. Section 1.110 provides: Where the Commission without a hearing grants any application in part, or with any privileges, terms, or conditions other than those requested, or subject to any interference that may result to a station if designated application or applications are subsequently granted, the action of the Commission shall be considered as a grant of such application unless the applicant shall, within 30 days from the date on which such grant is made or from its effective date if a later date is specified, file with the Commission a written request rejecting the grant as made. Upon receipt of such request, the Commission will USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 11 of 107 - 10 - vacate its original action upon the application and set the application for hearing in the same manner as other applications are set for hearing. 47 C.F.R. § 1.110 (App. 71). As the Commission noted in the MO&O, Behr’s modification application sought to make changes in his license “to add a contact person to his license, pro- vide answers regarding foreign ownership, and change the licensed station class so that he could provide interconnected service.” MO&O ¶24 (App. 10). His separate petition for waiver of the rule imposing a 12-month construction deadline for his category of license, the Commission found, “was not contingent on or otherwise related to any of these changes in the elements of Behr’s license.” Id. The Com- mission thus reasonably determined that there was “no basis for concluding that Behr’s request to modify his license … and his request for waiver of the con- struction rule, constitute anything other than two independent requests, where the denial of one (the waiver request) is entirely unconnected to the consideration of the merits of the other.” Id. at ¶22 (App. 9). Given the “high level of deference due to an agency in interpreting its own orders and regulations,” MCI Worldcom Network Services, Inc. v. FCC, 274 F.3d 542, 548 (D.C.Cir.2001), the Commis- sion’s conclusion standing alone justifies affirmance of its order, not summary reversal. In response to the Commission’s determinations, Behr now seeks in his motion to recast the petition for waiver as a request for modification of his license. The argument is inconsistent with the language in the petition that he filed. The motion claims now, for example, that his filing was a “timeline modification pro- USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 12 of 107 - 11 - posal,” in which the waiver and the application were inextricably intertwined. Mot. 1-2. Yet nowhere in the application itself is there any reference to a “timeline modification” or anything similar. See App. 42-49. As the Commission correctly found, the modification application sought three specific license modifications – (1) addition of a contact person for the licensee; (2) addition of answers to questions concerning alien ownership; and (3) a change in the station’s class. See MO&O ¶¶22-24 (App. 9-10); see also App. 6, 29-30. It is not clear why Behr believes that these requests to modify the license were not “substantive.” See Mot. 10 (“[T]he waiver [petition] was the sole sub- stantive part of the application.”). Behr voluntarily sought these changes in its license, and we do not understand Behr to dispute that the Bureau granted the application seeking those modifications on November 17, 2003. Similarly, Behr’s petition for waiver contains no suggestion that it was merely an appendage to a “timeline modification application” that sought to modi- fy the terms of the license. And, in any event, the station construction period is not a term of the license that is subject to change by modifying the license. It is gov- erned by rule – in this case by 47 C.F.R. § 90.725. Behr plainly recognized this, as he expressly sought a waiver of that rule. His petition was entitled “Petition for Waiver of Section 90.725 of the Commission’s Rules.” App. 51.2 The petition offers a detailed discussion of the development of the rule in 2 The motion erroneously renames the petition as “Petition for Waiver of Outdated Build-Out Timetable.” Mot. 5 n.4. That is inaccurate. See App 51. USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 13 of 107 - 12 - question and explains Behr’s position that the Commission should waive the rule because it had failed to update the rule, adopted in 1990, to reflect changes in the 220 MHz Private Mobile Radio Service. See App. 53-54. The petition concludes by arguing that the circumstances of this case “render application of that rule not only burdensome but inequitable and contrary to the public interest.” App. 56 (emphasis added). Contrary to Behr’s claims now that the waiver petition “existed solely as an essential component of the application” (Mot. 9), the waiver petition makes no reference to seeking any modification to the terms of the license. And as noted above, waiver of the applicable rule rather than a license modification would have been the method to obtain an extension of the construction period established by the rule. As the Commission pointed out, this issue has arisen before. In essentially identical circumstances the Commission concluded in a 1967 order that Section 1.110 did not apply when a broadcast radio station licensee sought renewal of its license accompanied by a request for exemption from a rule governing the amount of duplicative programming commonly owned AM and FM radio stations in the same community could air. The Commission granted the renewal application but denied the rule exemption request. AM-FM Program Duplication, 8 F.C.C.2d at 2 (App. 74). The licensee objected, claiming that this was a partial grant that amounted to a denial of the license renewal application, and demanded a hearing pursuant to 47 C.F.R. § 1.110. Id. The Commission found no merit in the claim, holding that “[t]his amounts to USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 14 of 107 - 13 - a contention that a licensee, by requesting waiver of any Commission rule in his renewal application, can obtain an evidentiary hearing on whether it should apply to him. Such an argument is clearly without substance.” AM-FM Program Dupli- cation, 8 F.C.C.2d at 4-5 (App. 76-77). On appeal, this Court specifically agreed with the quoted language from the Commission’s order, holding that it could “find no support in either the statute or the rules for the proposition asserted and Appel- lant has not cited any authority in support.” Buckley-Jaeger, 397 F.2d at 656 (App. 84). Behr has similarly cited nothing in this case in support of his advocacy of the same approach rejected by this Court in Buckley-Jaeger. The Court added with respect to the applicability of Section 1.110 that “the rule concerns situations where the applicant receives less than a full authorization. But here Appellant received the full authorization to which it was entitled under the statute and rules. In these circumstances we do not believe the rule can reason- ably be interpreted as making a hearing mandatory.” Buckley-Jaeger, 397 F.2d at 656 (App. 84). The same is true in the case of Behr’s modification application. Behr’s effort now to distinguish the circumstances in Buckley-Jaeger from the circumstances of his situation is unpersuasive because it relies on the same erroneous claims about the nature of his modification application discussed above.3 Behr asserts that unlike that case, the “build-out timetable” in this case “was a 3 As the Commission noted, Behr did not even mention Buckley-Jaeger in his application for review below (App. 20), although it had been a principal basis for the Bureau ruling for which he sought Commission review. MO&O ¶21 (App. 9). USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 15 of 107 - 14 - stated provision of Behr’s existing license for which modification was requested.” Mot. 11. As we have shown above, the “build-out timetable” is contained in a rule, 47 C.F.R. § 90.725, and Behr sought a waiver of the rule to extend the time to construct his station, not a modification of his license for that purpose. Behr’s assertion (Mot. 4) that the Bureau “added a build out period to the license in May of 2003” is incorrect and misleading. His reference is to a data entry notation made in the electronic license file indicating that the construction period for his station, established by rule, began to run in January 2003. See Mot. Att. 1. This was much later than that for other licensees whose applications had been filed at the same time as Behr’s initial application as a result of mistakes made by the Commission in processing that application. In 2003 the Commission began an audit of the construction status of stations in this service, and the notation was added to the file to flag Behr’s special situation to make clear, as it states, that his attorney “should not respond to the audit” because his construction period began in January 2003 and extended into 2004. Id. That file notation was for that purpose did not add a term to his license as the motion claims. Moreover, Behr’s reliance (Mot. 7-9) on the fact that the waiver petition was physically attached to the modification application or that the agency’s rules (47 C.F.R. § 1.925(b)(1)) require waiver petitions like this to be filed on a specific form is misplaced. Such procedural rules governing how the Commission pro- cesses electronic filings do not change the nature of the filings and do not under- mine the conclusion that the modification application and waiver petition were USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 16 of 107 - 15 - separate requests for agency action. That the Commission granted the modification application and denied the waiver petition in separate actions five days apart should have been a clear indication to Behr and his experienced communications counsel that the Commission was treating these filings as separate requests. The language of the Bureau ruling denying the waiver petition also makes that clear. See App. 40-41. Behr’s assertion that the Commission only partially granted his modification application and thus erred in refusing to provide a Section 1.110 hearing on that application (as well as on the denial of his petition for waiver of the construction rule) is demonstrably wrong. The motion provides no basis for summary reversal. B. The FCC Properly Dismissed Behr’s Application For Review of The Waiver Denial Because He Had Failed To Preserve His Administrative Review Rights. Behr’s suggestion (Mot. 11) that his “only avenue[] of appeal” following the denial of his waiver petition was to invoke Section 1.110 is mistaken. He could have sought reconsideration of the ruling by the Bureau or review by the Commis- sion through the filing of an application for review. He did neither, choosing to rely exclusively on his mistaken view that Section 1.110 was applicable. Thus, the Commission properly concluded that Behr did not timely seek reconsideration of the Bureau’s denial of his waiver petition or review by the full Commission, even though both avenues of administrative review were open to him. MO&O ¶40 (App. 16). Even if Behr’s one-paragraph December 17, 2003 letter demanding a hear- USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 17 of 107 - 16 - ing pursuant to Section 1.110 (App. 39) somehow could be deemed a reconsidera- tion petition or an application for review of the Bureau ruling denying the waiver petition – although that letter did not remotely comply with the rules for pleadings seeking such relief – it was untimely. Section 405(a) of the Communications Act, 47 U.S.C. § 405(a) and Section 1.106(f) of the agency’s rules, 47 C.F.R. § 1.106(f), require a reconsideration petition to be filed within thirty days from the date of public notice of Commission action. Similarly, Section 1.115 of the rules, 47 C.F.R. § 1.115 requires that an application for Commission review of a staff action be filed within thirty days of public notice of that action. Here the denial of Behr’s waiver petition occurred on November 12, 2003 (App. 40), more than thirty days from the time of the filing of its December 17, 2003 letter request. The Com- mission correctly concluded that Behr had failed to meet the established deadlines for filing a petition for reconsideration or application for review of the denial of his waiver petition. It also reasonably concluded that “this case presents no circum- stances, extraordinary or otherwise, that call into question the propriety of giving force to these deadlines.” MO&O ¶44 (App. 18). C. The FCC’s Delays In Processing Behr’s Application Do Not Justify Grant Of The Motion. Behr makes much of the agency’s errors and delays in processing his appli- cation. See Mot at 2-6, 12-13. However, as the Commission correctly observed, its “errors predating the grant of Behr’s license have no relevance to his subsequent failure to preserve his rights to contest the Wireless Bureau’s determination that he had failed to comply with one of the most basic obligations for holding a license – USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 18 of 107 - 17 - i.e., constructing the station on a timely basis.” MO&O n.120. (App. 17). After its initial mistakes, the Commission reinstated Behr’s application and then granted it in January 2003. Since that time, the record and motion do not reflect any action on his part to construct the station, notwithstanding the clear requirement of the agency’s rules that construction of stations of this type be completed within 12 months of the license grant. See p.3 above. Moreover, when the Bureau subse- quently denied his waiver petition, he failed to seek reconsideration of that order or review by the Commission. The Commission’s errors and delays here are regret- table, but those factors did not cause Behr’s failure to comply with the agency’s rules and provide no basis for reversal of the order at all, much less summary reversal. USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 19 of 107 - 18 - CONCLUSION For the reasons set forth above, the motion should be denied. Respectfully submitted, Jonathan B. Sallet General Counsel David M. Gossett Deputy General Counsel Richard K. Welch Deputy Associate General Counsel /s/ C. Grey Pash, Jr. C. Grey Pash, Jr. Counsel Federal Communications Commission Washington, D. C. 20554 (202) 418-1740 March 4, 2015 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 20 of 107 i Appendix 1. Lawrence Behr Application For Modification of 220-222 MHz Station WPWR222, Memorandum Opinion and Order, 29 FCC Rcd 15925 (2014)......................................................... 1 2. Application for Review, Lawrence Behr (filed June 19, 2009) ................................................................................................ 20 3. Lawrence Behr For a Modification to Station WPWR222, Order on Reconsideration, 24 FCC Rcd 7196 (WTB 2009) .................................................................................................... 28 4. Petition for Reconsideration, Lawrence Behr (filed Feb. 13, 2007) ................................................................................................. 32 5. Donald J. Evans, Esq., Letter, 22 FCC Rcd 1798 (WTB 2007) ............................................................................................................. 37 6. Letter from Donald J. Evans, Esq., Counsel for Lawrence Behr, to Marlene H. Dortch, FCC (filed Dec. 17, 2003) .......................................................................................................... 39 7. Letter from Ronald B. Fuhrman, Commercial Wireless Division, to Donald J. Evans, Esq., Counsel for Lawrence Behr (Nov. 12, 2003) .......................................................... 40 8. Lawrence Behr – Application for Wireless Telecommunications Bureau Radio Service Authorization – FCC Form 601 (filed June 2, 2003) .............................................. 42 9. Petition for Waiver of Section 90.725 of the Commission's Rules, Lawrence Behr (filed June 2, 2003) ................................................................................................. 51 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 21 of 107 ii 10. Lawrence Behr, Application to Operate a Phase I 220 MHz License in Denver, Colorado, Order, 17 FCC Rcd 19025 (WTB 2002) ............................................................................ 58 11. Letter from Terry L. Fishel, Deputy Chief, Licensing and Technical Analysis Branch, Commercial Wireless Division, to Donald J. Evans, Esq., Counsel to Lawrence Behr (Oct. 10, 1997) .......................................................................... 62 12. Letter from Donald J. Evans, Esq., Counsel for Lawrence Behr, to Michael J. Regiec, Deputy Chief, Land Mobile Branch (filed Oct. 25, 1996) .................................................. 63 13. Letter from Michael J. Regiec, Deputy Chief, Land Mobile Branch, to Donald J. Evans, Esq., Counsel for Lawrence Behr (Oct. 18, 1996) ........................................................... 65 14. Disposition of Non-Nationwide 220-222 MHz Applications, Order, 10 FCC Rcd 7747 (WTB 1995) ............................................ 69 15. Public Notice, Commission Announces Tentative Selectees for 220-222 MHz Private Land Mobile “Local” Channels, DA 93-71 (1993) ..................................................................... 70 16. 47 C.F.R. § 1.110 ............................................................................................... 72 17. Requests for Exemption From or Waiver of the Provisions of Section 73.242 of the Commission’s Rules (AM-FM Program Duplication), Memorandum Opinion and Order, 8 F.C.C.2d 1 (1967) ................................................................................................ 73 18. Buckley-Jaeger Broadcasting Corp. v. FCC, 397 F.2d 651 (D.C. Cir. 1968) ................................................................................ 79 -END- USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 22 of 107 Federal Communications Commission FCC 14-207 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Lawrence Behr Application For Modification of 220-222 MHz Station WPWR222 ) ) ) ) ) File No. 0001332167 MEMORANDUM OPINION AND ORDER Adopted: December 16, 2014 Released: December 17, 2014 By the Commission: I. INTRODUCTION 1. In this Memorandum Opinion and Order, we address the Application for Review filed by Lawrence Behr (Behr) on June 19, 2009, 1 regarding the Wireless Telecommunications Bureau (Wireless Bureau) Mobility Division’s May 27, 2009 Order on Reconsideration affirming that Behr was not entitled to a hearing under Section 1.110 of the Commission’s rules when he rejected the grant of a modification application for his 220-222 MHz (220 MHz) license in Denver, Colorado. 2 For the reasons discussed below, we deny Behr’s Application for Review. II. BACKGROUND 2. The history of this proceeding intersects significantly with the Commission’s establishment of the 220 MHz Service. In April 1991, the Commission adopted the 220 MHz Report and Order establishing rules for Phase I licensing of nationwide and non-nationwide channels in the 220 MHz band. 3 The Commission determined that it would grant applications on a first-come, first-served basis, while mutually exclusive applications would be resolved through random selection (lottery) procedures. 4 3. On May 1, 1991, the Commission began accepting nationwide and non-nationwide Phase I applications for 220 MHz licenses, and on that same day Behr submitted his application seeking site-based authority to operate in Denver, Colorado. 5 On May 24, 1991, after receiving over 59,000 applications, the former Private Radio Bureau imposed a freeze on the acceptance of all applications, including initial and modification applications, for the 220 MHz Service. 6 On October 19, 1992, the 1 Application for Review, filed by Lawrence Behr (June 19, 2009) (Application for Review). 2 In re Application of Lawrence Behr for a Modification to Station WPWR222, Order on Reconsideration, 24 FCC Rcd 7196 (WTB MD 2009) (Order on Reconsideration). 3 Amendment of Part 90 of the Commission’s Rules to Provide for the Use of the 220-222 MHz Band by the Private Land Mobile Radio Services, PR Docket No. 89-552, Report and Order, 6 FCC Rcd 2356 (1991) (220 MHz Report and Order). Of the 140 channel pairs set aside for non-nationwide (local) service, 100 were set aside for site-based trunked operations, and trunked channels were assigned in groups of five non-contiguous channels spaced 150 kHz (30 channels) apart. Id. at 2356, ¶ 3 and 2358, ¶¶ 15-16. 4 Id. at 2364-65, ¶¶ 59, 62. 5 FCC File No. 0983133, Application for Private Land Mobile and General Mobile Radio Services, filed by Lawrence Behr (May 1, 1991). 6 Acceptance of 220-222 MHz Private Land Mobile Applications, Order, 6 FCC Rcd 3333, 3333, ¶ 3 (Private Radio Bureau 1991). 15924 1 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 23 of 107 Federal Communications Commission FCC 14-207 Private Radio Bureau’s Land Mobile Branch conducted a lottery to resolve mutually exclusive non- nationwide applications. 7 Behr’s application, which was mutually exclusive with other applications, was selected as the initial tentative selectee for Denver. The initial tentative selectees were announced on January 26, 1993, 8 and on January 28, 1993, the Land Mobile Branch returned Behr’s application with a request for additional technical information. 9 Behr resubmitted the application with the requested information on March 23, 1993, within the required 60 days of the application return date. 10 The Land Mobile Branch subsequently misplaced Behr’s amended application and, as a result, did not issue a Phase I 220 MHz license to Behr for operation in Denver. 4. On July 30, 1992, before the Commission conducted its lottery of non-nationwide Phase I 220 MHz mutually exclusive applications, certain aspects of the Commission’s procedures for the filing and acceptance of 220 MHz applications were appealed to the United States Court of Appeals for the District of Columbia Circuit (“court” or “court of appeals”). 11 In announcing the date for the non- nationwide lottery, the Commission stated that it would condition all grants of 220 MHz licenses upon the outcome of the appeal and that during the pendency of the appeal, licensees could construct facilities at their own risk.12 The Commission further announced that, regardless of a licensee’s initial authorization date, the construction deadline for all non-nationwide 220 MHz stations would be extended after final disposition of the case.13 The case was not settled until March 1994, well after the Commission had granted all non-nationwide 220 MHz licenses. The appeal effectively placed those authorizations in doubt for nearly two years, and the uncertainty with respect to the finality of the Commission’s grant of their licenses caused many licensees to refrain from constructing their stations. Following dismissal of the case on March 18, 1994, 14 the Commission extended the deadline for licensees to construct their stations and place them in operation on five separate occasions. The first three extensions resulted in a deadline of December 31, 1995. 15 7 Commission Announces Lottery for Rank Ordering of 220-222 MHz Private Land Mobile “Local” Channels, Public Notice, 7 FCC Rcd 6378 (Sept. 10, 1992) (Lottery Public Notice). 8 Commission Announces Tentative Selectees for 220-222 MHz Private Land Mobile “Local” Channels, Public Notice, DA 93-71 (rel. Jan. 26, 1993). From the more than 59,000 applications filed prior to the freeze, the Commission ultimately issued authorizations to approximately 3,800 licensees to operate non-nationwide 220 MHz stations. Amendment of Part 90 of the Commission’s Rules To Provide for the Use of the 220-222 MHz Band by the Private Land Mobile Radio Service, PR Docket No. 89-552, Implementation of Sections 3(n) and 332 of the Communications Act, GN Docket No. 93-252, Implementation of Section 309(j) of the Communications Act – Competitive Bidding, 220-222 MHz, PP Docket No. 93-253, Second Memorandum Opinion and Order and Third Notice of Proposed Rulemaking, 11 FCC Rcd 188, 195, ¶ 5 (1995) (220 MHz Second Memorandum Opinion and Order). 9 Lawrence Behr, Application Return Notice for the Private Land Mobile Radio Services, File No. 983133-QT (Jan. 28, 1993). In particular, the return notice explained that “[m]obiles to be operating with the system need to be shown on the application” and directed Behr to complete “items 2 thru 5, 12 and 13” on the application. Id. at 1. 10 See Former 47 C.F.R. § 90.141 (1993) (providing that “Any application which has been returned to the applicant for correction will be processed in original order of receipt if it is resubmitted and received by the Commission’s offices in Gettysburg, PA within 60 days from the date on which it was returned to the applicant. Otherwise it will be treated as a new application and will require an additional fee as set forth in Part 1, Subpart G of this chapter”). 11 Evans v. Federal Communications Commission, No. 92-1317 (D.C. Cir. filed July 30, 1992). 12 Lottery Public Notice, 7 FCC Rcd at 6378. 13 Id. 14 See Evans v. Federal Communications Commission, Case No. 92-1317 (D.C. Cir. rel. Mar. 18, 1994) (per curiam) (granting the motion for voluntary dismissal). 15 On March 30, 1994, the Private Radio Bureau extended the construction deadline for stations authorized on or before the release date of its order, to December 2, 1994. Amendment of Part 90 of the Commission’s Rules to (continued….) 15925 2 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 24 of 107 Federal Communications Commission FCC 14-207 5. Shortly after the appeal was dismissed, the Land Mobile Branch conducted the second round of processing non-nationwide applications after finding that, for various reasons unrelated to the present proceeding, the remaining initial tentative selectee applications could not be granted. On September 6, 1994, unaware of Behr’s timely filed amended application, the Land Mobile Branch granted a Phase I non-nationwide license in Denver to the second tentative selectee, Gary Petrucci (Petrucci), under call sign WPFQ335. 16 On July 21, 1995, after completing the processing of all non-nationwide Phase I 220 MHz applications, the Land Mobile Branch issued its 220 MHz Disposition Order, in which the Wireless Bureau stated that it had acted upon all Phase I non-nationwide applications submitted prior to the freeze and granted all applications for which spectrum was available. 17 The 220 MHz Disposition Order also stated that all remaining Phase I non-nationwide applications were dismissed and would not be returned.18 Later that year, the Wireless Bureau released another order resulting in a fourth extension of the construction deadline for Phase I non-nationwide 220 MHz licensees to February 2, 1996.19 6. While the Commission extended the construction deadline, it recognized that because several years had passed since 220 MHz licensees had filed their applications for which licenses were granted, many licensees found that they were unable to construct at their authorized locations. In addition, as a consequence of the freeze on filing applications, licensees wishing to relocate their authorized locations through license modification were unable to do so.20 To address these concerns, on January 26, 1996, the Commission issued its 220 MHz Second Report and Order adopting a one-time procedure to allow Phase I non-nationwide licensees to relocate their single base stations within defined maximum distances or to change the effective radiated power level or height above average terrain of their base station, as long as doing so did not expand the station’s authorized 38 dBu service contour. 21 (Continued from previous page) Provide for the Use of the 220-222 MHz Band by the Private Land Mobile Radio Services, PR Docket No. 89-552, Order, 9 FCC Rcd 1739 (PRB 1994). In the CMRS Third Report and Order, the Commission, after adopting a 12- month construction requirement for Commercial Mobile Radio Service licensees, also extended the construction deadline for non-nationwide 220 MHz licensees an additional four months to April 4, 1995, affording those licensees 12 months in which to construct their stations. Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile Services, GN Docket No. 93-252, Third Report and Order, 9 FCC Rcd 7988, 8077, ¶ 184 (1994); see Private Radio Bureau Extends Time to Construct Non-Nationwide 220 MHz Stations Through April 4, 1995 and Lifts Freeze for Applications to Modify Site Locations, Public Notice, 10 FCC Rcd 744 (PRB 1994) (granting a four-month extension from December 2, 1994, to April 4, 1995, to construct non-nationwide 220 MHz systems with original license grant dates on or before March 30, 1994). On February 17, 1995, the Wireless Bureau released an order extending the deadline to December 31, 1995. Amendment of Part 90 of the Commission’s Rules To Provide for the Use of the 220-222 MHz Band by the Private Land Mobile Radio Services, PR Docket No. 89-552, Order, 10 FCC Rcd 3356 (WTB 1995). 16 Petrucci’s application was assigned File No. 0962977. 17 In the Matter of Disposition of Non-Nationwide 220-222 MHz Applications, Order, 10 FCC Rcd 7747 (WTB LMB 1995) (220 MHz Disposition Order). 18 Id. 19 On December 15, 1995, the Wireless Bureau released an order providing for an extension of the construction deadline for non-nationwide 220 MHz licensees, contingent upon closure of the Commission as a result of any furlough of Federal Government employees that might occur. See Amendment of Part 90 of the Commission’s Rules To Provide for the Use of the 220-222 MHz Band by the Private Land Mobile Radio Services, PR Docket No. 89-552, Order, 11 FCC Rcd 9710 (WTB 1995). The ensuing 23-day Federal furlough resulted in an extension of the construction deadline to February 2, 1996, pursuant to the formula established in the Bureau order. 20 Amendment of Part 90 of the Commission's Rules To Provide for the Use of the 220-222 MHz Band by the Private Land Mobile Radio Service, PR Docket No. 89-552, Implementation of Sections 3(n) and 332 of the Communications Act, GN Docket No. 93-252, Fourth Notice of Proposed Rulemaking, 11 FCC Rcd 835, 836, ¶ 1 (1995). 21 Amendment of Part 90 of the Commission’s Rules To Provide for the Use of the 220-222 MHz Band by the (continued….) 15926 3 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 25 of 107 Federal Communications Commission FCC 14-207 The Commission then extended the February 2, 1996 construction deadline to give licensees sufficient time to decide whether they wanted to relocate their base stations under the newly adopted modification procedures.22 In particular, the Commission extended the deadline from February 2, 1996, to March 11, 1996, for all non-nationwide 220 MHz licensees that elected to construct their base stations at their originally authorized locations, and to August 15, 1996, for all licensees granted authority to modify their licenses to relocate their base stations.23 7. On August 12, 1996, nearly 13 months after the Land Mobile Branch announced it had acted on all Phase I non-nationwide applications, Behr’s counsel requested information on the status of Behr’s Denver application. The Land Mobile Branch responded by letter dated October 18, 1996, indicating that Behr’s application had not been resubmitted within the required 60-day period, and therefore was no longer pending. 24 The letter further stated that the 220 MHz Disposition Order released on July 21, 1995, had notified applicants that the Private Radio Bureau had completed processing all applications received prior to the imposition of the freeze. 25 On October 25, 1996, Behr sought reconsideration of the October 18, 1996 letter, providing a date-stamped copy evidencing timely resubmission of his amended Denver application. 26 8. On February 19, 1997, while Behr’s petition seeking reconsideration of the dismissal of his Denver application remained pending, the Commission adopted the 220 MHz Third Report and Order establishing rules for the Phase II licensing of nationwide and non-nationwide channels in the 220 MHz band on a geographic area basis. 27 In relevant part, the Commission assigned non-nationwide licenses in 175 geographic areas defined as Economic Areas (EA licenses) and Regional Economic Area Groupings (Regional licenses).28 As codified in Section 90.767 of our rules, EA and Regional licensees must provide coverage to at least one-third of the population of their EA or Region within five years of initial authorization, and at least two-thirds of the population of their EA or Region within 10 years of initial (Continued from previous page) Private Land Mobile Radio Services, PR Docket No. 89-552, Implementation of Sections 3(n) and 332 of the Communications Act, GN Docket No. 93-252, Second Report and Order, 11 FCC Rcd 3668 (1996) (220 MHz Second Report and Order), modified, Memorandum Opinion and Order on Reconsideration, 13 FCC Rcd 14569, 14616, ¶ 97. While Phase I licensees were allowed only one base station, they were also permitted to add “fill-in” transmitters within their 38 dBu service contour without prior authorization from the Commission to fill in “dead spots” in coverage or to reconfigure their systems to increase capacity within their service area, so long as signals from the transmitters did not expand the station’s 38 dBu service contour. 220 MHz Second Report and Order, 11 FCC Rcd at 3670-71, ¶¶ 9-11. A licensee, however, was required to notify the Commission within 30 days of the completion of any changes through a minor modification of its license. These rules allowing modification are codified under Sections 90.745, 90.751, 90.753, and 90.757 of our rules. 47 C.F.R. §§ 90.745, 90.751, 90.753, 90.757. 22 220 MHz Second Report and Order, 11 FCC Rcd at 3674, ¶ 21. 23 Id. 24 Letter from Michael J. Regiec, Deputy Chief, Land Mobile Branch, to Donald J. Evans, Esq., Counsel for Lawrence Behr (Oct. 18, 1996). 25 Id. 26 Letter from Donald J. Evans, Counsel to Lawrence Behr, to Michael Regiec, Federal Communications Commission (Oct. 25, 1996). 27 Amendment of Part 90 of the Commission's Rules To Provide for the Use of the 220-222 MHz Band by the Private Land Mobile Radio Services, PR Docket No. 89-552, Third Report and Order; Fifth Notice of Proposed Rulemaking, 12 FCC Rcd 10943 (1997) (220 MHz Third Report and Order). The Commission made these channels available to all eligible applicants and, given a recent statutory mandate, stated that mutually exclusive applications would be resolved through competitive bidding rather than random selection. Id. at 10950, ¶ 7, 11001-02, ¶ 37. See also 47 U.S.C. § 309(i)(5), (j). 28 Id. at 10949, ¶ 7. 15927 4 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 26 of 107 Federal Communications Commission FCC 14-207 authorization.29 Licensees may, in the alternative, provide substantial service to their licensed areas at the appropriate five- or 10-year benchmarks.30 9. On September 19, 1997, the Commission granted assignment of the Phase I non- nationwide license for Station WPFQ335 in Denver from the second tentative selectee, Petrucci, to Roamer One. On October 10, 1997, the former Commercial Wireless Division’s (CWD) Licensing and Technical Analysis Branch issued a letter to Behr denying his petition for reconsideration of the dismissal of his Denver application as filed in an untimely manner. 31 The letter explained that the 220 MHz Disposition Order released on July 21, 1995, disposed of Behr’s Denver application, not the Land Mobile Branch’s letter of October 18, 1996. 32 On November 10, 1997, Behr filed an Application for Review of the denial of his petition for reconsideration. 33 In late 1998, while Behr’s 1997 Application for Review was pending, the Commission auctioned numerous 220 MHz EA geographic licenses in Auction 18, including the Denver EA license, on the same frequencies Behr sought in his Phase I application. Net Radio was the high bidder for the Denver market in Auction 18, and became the Phase II geographic area licensee for that channel block. On January 13, 2000, several months after the Commission held its 220 MHz Auction 18, Roamer One assigned the Phase I license for Station WPFQ335 to Net Radio. 10. Upon review of Commission records regarding the date on which Behr filed his amended Denver application, CWD determined that Behr had filed the application in a timely manner, and that it should have been processed. On September 26, 2002, after settlement negotiations with Behr failed, CWD adopted an order to correct, on its own motion, the administrative error made in misplacing Behr’s application and granting Petrucci’s application for Station WPFQ335. 34 In particular, the CWD Order set aside the grant of the authorization for Station WPFQ335 licensed, at that time, to Net Radio, and returned Behr’s application to pending status to be processed.35 Importantly, in accordance with Section 90.725(f), the CWD Order specifically warned Behr that if his application were granted and he did not construct the station in a timely manner, any license granted to Behr would automatically cancel and the spectrum associated with Behr’s license would revert to Net Radio, the geographic area licensee.36 Finally, having reinstated his application, the CWD Order dismissed Behr’s 1997 Application for Review as moot.37 29 Id. at 11020, ¶ 163; 47 C.F.R. § 90.767(a). 30 Id. The Commission also determined that failure to meet the construction benchmarks results in automatic cancellation of the licensee’s entire EA or Regional license. Id. at 11021, ¶ 164; 47 C.F.R. § 90.767(c). We also note that the Commission permits EA and Regional licensees to operate any number of base stations anywhere within their authorized geographic areas, provided that their transmissions do not exceed a predicted field strength of 38 dBuV/m at their border, and provided that they protect the base stations of Phase I licensees in accordance with the existing co-channel separation criteria for 220 MHz stations. 220 MHz Third Report and Order, 12 FCC Rcd at 10950, ¶ 7, 10982, ¶ 80, 11007-08, ¶ 138, and 11031, ¶ 182. 31 Letter from Terry L. Fishel, Deputy Chief, Licensing and Technical Analysis Branch, Commercial Wireless Division, to Donald J. Evans, Esq., Counsel to Lawrence Behr (Oct. 10, 1997). 32 Id. 33 Application for Review, filed by Lawrence Behr (Nov. 10, 1997) (1997 Application for Review). 34 In the Matter of Lawrence Behr, Application to Operate a Phase I 220 MHz License in Denver, Colorado; Net Radio Communications Group, LLC, Authorization for 220 MHz Station Call Sign WPFQ335, Denver, Colorado, Order, 17 FCC Rcd 19025 (WTB CWD 2002) (CWD Order). 35 Id. at 19027, ¶¶ 6-7. The CWD Order also granted Net Radio special temporary authority until the earlier of 180 days from the date of the order; or such time as Behr provided Net Radio written notification that he was ready to commence operations under an authorization granted pursuant to the order. Id. at 19027-28, ¶ 8. 36 Id. at 19028, ¶ 8 n.15. 37 Id. at 19028, ¶ 8. 15928 5 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 27 of 107 Federal Communications Commission FCC 14-207 11. In accordance with the CWD Order, Behr’s application was processed and granted on January 8, 2003, under Call Sign WPWR222, and authorized 220 MHz Phase I site-based, trunked five- channel operation in Denver.38 On June 2, 2003, Behr filed the above-captioned modification application seeking authority to make certain administrative and technical changes to the license, specifically: update the contact information for the license, provide answers regarding foreign ownership, and change the station class from FB6 (for-profit private carrier) to FB6C (for-profit interconnected service). Behr also attached a request for a waiver of the construction requirements for Phase I non-nationwide licenses, which required station construction and operation within 12 months of grant of the application, arguing that he should be afforded the full 10 years to construct his site-based station, similar to a Phase II non- nationwide geographic area licensee. 39 CWD’s Technical Analysis Branch denied the waiver request on November 12, 2003, 40 and granted the modification application on November 17, 2003. 12. On December 17, 2003, Behr submitted a letter rejecting the grant of the modification application and requesting a hearing pursuant to Section 1.110 of our rules. 41 Section 1.110 of our rules provides as follows: Where the Commission without a hearing grants any application in part, or with any privileges, terms, or conditions other than those requested, …, the action of the Commission shall be considered as a grant of such application unless the applicant shall, within 30 days from the date on which such grant is made or from its effective date if a later date is specified, file with the Commission a written request rejecting the grant as made. Upon receipt of such request, the Commission will vacate its original action upon the application and set the application for hearing in the same manner as other applications are set for hearing.42 On January 31, 2007, the Mobility Division dismissed the hearing request as procedurally defective in a Letter Order. 43 In particular, citing Buckley-Jaeger Broadcasting Corporation of California v. FCC,44 the Letter Order found that because the Wireless Bureau had granted Behr’s application in full, Section 1.110 did not apply, and that Behr was effectively seeking a hearing on the denial of his waiver request.45 The Letter Order further explained that either a petition for reconsideration or application for review were the appropriate vehicles for challenging denial of the waiver request, and Behr did not seek relief using either vehicle by the required filing deadline of December 12, 2003. 46 13. On February 13, 2007, Behr filed a petition for reconsideration of the Letter Order 47 claiming that the Mobility Division erred in dismissing his Section 1.110 petition because it was the 38 We note that Behr’s license for Station WPWR222 authorized trunked operations on five non-contiguous channels: 220/221.0875, 220/221.2375, 220/221.3875, 220/221.5375, and 220/221.6875 MHz. 39 Petition for Waiver of Section 90.725 of the Commission’s Rules, filed as Attachment to Behr License Modification Application, FCC File No. 0001332167 (filed June 2, 2003) (Waiver Request). 40 Letter from Ronald B. Fuhrman, Deputy Chief, Technical Analysis Branch, Commercial Wireless Division, to Donald J. Evans, Esq., Counsel to Lawrence Behr (Nov. 12, 2003) (Waiver Denial Letter). 41 Letter from Donald J. Evans, Counsel to Lawrence Behr, to Marlene Dortch, Secretary, Federal Communications Commission (Dec. 17, 2003). Behr did not file a petition for reconsideration of the denial of his waiver request under rule Section 1.106 or seek Commission review under rule Section 1.115. 42 47 C.F.R. § 1.110. 43 Donald J. Evans, Esq., Letter, 22 FCC Rcd 1798 (WTB MD 2007) (Letter Order). 44 397 F.2d 651 (D.C. Cir. 1968) (Buckley-Jaeger v. FCC). 45 Letter Order, 22 FCC Rcd at 1798. 46 Id. at 1799. 47 Petition for Reconsideration, filed by Lawrence Behr (Feb. 13, 2007) (2007 Petition). 15929 6 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 28 of 107 Federal Communications Commission FCC 14-207 action of denying the waiver request while granting the application that “left Behr with no choice but to reject the grant and request a hearing.” 48 Asserting that the “application sought no modification to the license other than the change in the build-out deadline,” Behr concluded that he had to reject the grant as made, or “forfeit[] his right to contest the partial grant because he would have been deemed by operation of the rule to have accepted it.” 49 14. On May 27, 2009, the Mobility Division issued an Order on Reconsideration denying Behr’s petition and affirming the Letter Order. The Mobility Division concluded that Behr’s application seeking modification of his license for Station WPWR222 was filed and granted independent of Behr’s waiver request.50 The Mobility Division also found Behr’s recitation of the facts to be inaccurate, specifically rejecting Behr’s claim that the application sought no modification other than the change in the build-out deadline sought in the accompanying waiver request. The Mobility Division stated that in fact Behr had requested several modifications in his application, including (1) amending the contact information for the license; (2) answering questions concerning foreign ownership; and (3) changing the station class from private carrier to interconnected service. 51 15. Reiterating that Buckley-Jaeger v. FCC was controlling precedent, 52 the Mobility Division concluded that “the instant matter concerns a fully-granted modification application and a separately-attached request for waiver of the Commission’s construction requirements that was denied.”53 The Division further endorsed its prior determination that under Buckley-Jaeger v. FCC, a challenge to the denial of the waiver request must be made through the filing of a petition for reconsideration or an application for review, pursuant to either Section 1.106 or Section 1.115 of the Commission’s rules, rather than through a request for a hearing under Section 1.110. 54 In response, Behr filed the Application for Review now before us. III. DISCUSSION 16. Behr seeks review of the Mobility Division’s Order on Reconsideration, claiming that his case involves two issues: whether the grant of Behr’s modification application and denial of a request for waiver filed along with the application constitutes a “partial grant” under Section 1.110 of the Commission’s rules; and whether the Wireless Bureau erred by failing to grant Behr’s 2003 request for waiver of the Phase I 220 MHz non-nationwide construction rule and affording him the same five- and 10-year construction benchmarks that apply to Phase II non-nationwide geographic area licensees.55 As discussed below, we affirm the Mobility Division’s Order on Reconsideration, and deny Behr’s pending Application for Review. A. Section 1.110 of the Commission’s Rules 17. The sole issue in this appeal with regard to Section 1.110 is whether the grant of each modification of license requested in Behr’s 2003 application, coupled with the denial of an accompanying request for waiver of a Commission rule, amounts to a partial grant of the license modification application and thus implicates the requirements of Section 1.110. Behr continues to argue that his modification application and waiver request constitute one application, and that, as a result, the application was only 48 2007 Petition at 1. 49 Id. at 1-2. 50 Order on Reconsideration, 24 FCC Rcd at 7198, ¶ 5. 51 Id. at 7197-98, ¶ 5. 52 Id. at 7198, ¶ 6. 53 Id. 54 Id. at 7199, ¶ 8 (citing 47 C.F.R. §§ 1.106, 1.115). 55 Application for Review at 1. 15930 7 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 29 of 107 Federal Communications Commission FCC 14-207 “partially granted” when the Mobility Division denied his waiver request and later granted his application. Behr contends that the “waiver request was an integral part of the modification application” – “the main action [Behr] was requesting,” – and that if “he accepted the grant as made, he would forfeit any right under Section 1.110 to challenge the Bureau’s denial” of the request to waive the Phase I construction requirements.56 Behr concludes that “Section 1.110 therefore provided the only avenue for Behr to follow.”57 18. We disagree. Initially, we affirm the Mobility Division’s finding that Buckley-Jaeger v. FCC is on point. In that case, the court affirmed an order in which the Commission denied a licensee’s request for hearing under Section 1.110 after the Commission had granted the licensee’s renewal application but not the accompanying request for exemption from a Commission rule.58 The owner of broadcast stations KKHI-AM and KKHI-FM submitted an application to renew its license for its AM station and included along with the application a request for exemption of the Commission’s rule prohibiting 100 percent duplication of program formats on both stations so that the owner could broadcast the same programs simultaneously on the AM and FM channels.59 Staff granted the renewal application on November 5, 1965, without prejudice to whatever action the Commission might take on the licensee’s pending exemption request.60 The Commission later concluded that the licensee’s request for exemption was not warranted. 61 Within 30 days of the grant of the renewal application, but prior to the Commission acting on the request for exemption, the licensee filed a letter objecting to the grant.62 Terming the grant made as partial, the licensee demanded a hearing under Section 1.110 of the Commission’s rules. 19. The Commission, however, found no merit in the contention that the licensee – by rejecting grant of its renewal application without grant of the exemption and invoking Section 1.110 – was entitled to an evidentiary hearing on the question of whether continued duplication would serve the public interest.63 The Commission further explained that “[it] was not necessary to consider [KKHI’s exemption] request in connection with renewal.” 64 The court of appeals, in affirming the Commission’s decision, noted that the Commission aptly phrased its answer: “This amounts to a contention that a licensee, by requesting a waiver of any Commission rule in his renewal application, can obtain an evidentiary hearing on whether it should apply to him. Such an argument is clearly without substance.”65 56 Id. at 4-5. 57 Id. at 5. 58 In the Matter of Requests for Exemption From or Waiver of the Provisions of Section 73.242 of the Commission’s Rules (AM-FM Program Duplication), Memorandum Opinion and Order, 8 F.C.C.2d 1 (1967) (Program Duplication Memorandum Opinion and Order), aff’d in relevant part, Buckley-Jaeger Broadcasting Corporation of California v. FCC, 397 F.2d 651 (D.C. Cir. 1968). 59 Program Duplication Memorandum Opinion and Order, 8 F.C.C.2d at 2, ¶ 5. Former Section 73.242 of the Commission’s rules provided, in relevant part, that “[a]fter October 15, 1965, licensees of FM stations in cities of over 100,000 population … shall operate so as to devote no more than 50 percent of the average FM broadcast week to programs duplicated from an AM station owned by the same licensee in the same local area.” Former 47 C.F.R. § 73.242 (1967). The rule section also outlines requirements for a temporary exemption for the rule. Id. § 73.242(c). 60 Program Duplication Memorandum Opinion and Order, 8 F.C.C.2d at 2, ¶ 5. 61 Id. at 4, ¶ 9. 62 Id. at 2, ¶ 5. The licensee, in its letter objecting to the grant, also claimed that isolation of the exemption request, and later denial without hearing, would deprive it of its right to a hearing under Section 309 of the Communications Act of 1934, as amended (Communications Act). Id. 63 Id. at 4, ¶ 10. 64 Id. 65 Buckley-Jaeger v. FCC, 397 F.2d at 656 (citing Program Duplication Memorandum Opinion and Order, (continued….) 15931 8 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 30 of 107 Federal Communications Commission FCC 14-207 The court agreed that “[i]t is clear that Section 1.110 of the Commission’s rules has no application here,” explaining further that “[t]he rule concerns situations where the applicant receives less than a full authorization,” but “here Appellant received the full authorization to which it was entitled under the statute and rules.” 66 The court concluded that “[i]n these circumstances we do not believe the rule can reasonably be interpreted as making a hearing mandatory.”67 20. In his 2007 Petition, Behr argued that Buckley-Jaeger v. FCC did not apply because “the entire point of the application was to seek a modification of the build out schedule; there was nothing else applied for.” 68 Behr continued by asserting that “[t]he Commission literally denied the entire request for relief embodied in the application, yet now pronounces the application ‘granted in full.’”69 In the instant Application for Review, however, Behr abandons his prior insistence that the request for waiver contained the only modification to his license that he requested. Instead, he describes the request for waiver as the “main action” that he requested,70 and acknowledges that in fact the license application itself requested several license modifications, each of which was granted.71 21. Consistent with this acknowledgement, Behr also abandons his earlier attempts to distinguish his situation from the nearly identical facts in Buckley-Jaeger v. FCC, making no mention of the case at all in his Application for Review. Instead, Behr argues that a licensee in his position – which he continues to characterize as that of one who has received a “partial grant,” notwithstanding his recognition that the Wireless Bureau granted all of the changes he requested in his license modification application72 – has no procedural option except to reject the grant of his application under Section 1.110 and request a hearing.73 We disagree with this reading of our rules and with Behr’s characterization of the case law he cites to support his argument. 22. We first reject Behr’s assertion that grant of his modification application, coupled with the denial of his waiver request, constitutes a partial grant of the modification application and thus entitles him to a Section 1.110 hearing. We reject this assertion because we see no basis for concluding that Behr’s request to modify his license to change various of its factual elements – i.e., the license’s listed contact person, certain foreign ownership information, and the station class of the license – and his request for waiver of the construction rule, constitute anything other than two independent requests, where the denial of one (the waiver request) is entirely unconnected to the consideration of the merits of (Continued from previous page) 8 F.C.C.2d at 4, ¶ 10) 66 Buckley-Jaeger v. FCC, 397 F.2d at 656. 67 Id. 68 2007 Petition at 3 (emphasis in original). 69 Id. In elaborating on this assertion, Behr continued to overlook the terms of the license that his application had in fact requested the Commission to modify: “Looked at another way, the application as granted effected no modification whatsoever to the original license since the Commission denied the only change which had been requested. How can a modification application be deemed to be ‘granted in full’ if no actual modification of any kind was authorized by the grant? In other words, assuming Buckley-Jaeger remains good law, its application to the present situation is undercut by the critical distinguishing fact that Behr’s application was not ‘granted in full’ in any logical sense. To the contrary, it was actually denied in full in every logical sense but one: the Commission granted it.” Id. 70 Application for Review at 5 (acknowledging that the Mobility Division granted “the portions of [his] application that added a contact representative and allowed interconnected service”). 71 Id. at 4. 72 See, e.g., id. at 6 (describing the Mobility Division’s “partial denial and partial grant of [his] application”). 73 See id. (stating that “[b]y rejecting Behr’s request to proceed under the provisions of Section 1.110, the Bureau effectively barred Behr from having any right of appeal whatsoever”). 15932 9 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 31 of 107 Federal Communications Commission FCC 14-207 the other. Certainly, we did not need to act in any particular way on the waiver request (whether to grant or deny it, in whole or in part, or simply to defer acting on it) to consider whether to approve the requested modification of the license elements that Behr identified for change in his modification application. Nor did Behr condition the license modifications he requested on grant of a waiver of the construction rule. Indeed, we would have no logical reason to assume that action on the waiver request would have any bearing on Behr’s interest in keeping his license up-to-date on the designated contact person, foreign ownership information, and the type of service he planned to offer under the license. In short, the only link between the license modification application and the waiver request was the incidental inclusion of Behr’s request for waiver of the construction rule as an attachment to the license modification form. Under these circumstances, the full grant of all the modifications of license requested in the application does not constitute the partial or conditional grant of an application that would provide any hearing rights under Section 1.110, or otherwise trigger the operation of that rule, simply because the Commission did not grant a rule waiver request that the applicant associated with the application. 23. The Commission’s action upheld by the court in Buckley-Jaeger v. FCC, reflects this approach, insofar as none of the relevant considerations for acting on the renewal application in that case depended on the Commission’s consideration of or action on the applicant’s request for an exemption from the program duplication rule. Grant of the renewal application simply extended for an additional period of time the terms and conditions of the authorization that the licensee had accepted when its application was initially granted. Because a determination of whether the licensee in that case was entitled to an exemption of the program duplication rule had nothing directly to do with any element of the licensee’s request that its license be renewed, and because the Commission could grant a full license renewal without placing any conditions on the license or deviating from the renewed license that the licensee had requested, the Commission correctly treated the renewal grant as a full grant of the renewal application, not as a partial application grant that could entitle the licensee to a hearing on the unconnected issue of whether the licensee was entitled to an exemption from the program duplication rule. 24. In the present case, grant of Behr’s modification application approved his request to make certain changes in the factual underpinnings of his license – all within the rules – by allowing him to add a contact person to his license, provide answers regarding foreign ownership, and change the licensed station class so that he could provide interconnected service, all while maintaining the other license terms and conditions he accepted upon initial grant. Whether the Commission would grant a waiver of the rules to give Behr the 10-year construction period afforded Phase II 220 MHz geographically licensed systems was not contingent on or otherwise related to any of these changes in the elements of Behr’s license. As in Buckley-Jaeger v. FCC, Behr’s filing contained two separate, independent types of request – one type constituted the application to correct and modify, within the parameters of the current rules, the administrative and technical aspects of the license, while the other type sought relief apart from the specific terms of the license (i.e., to obtain waiver of the build-out schedule set out in the Commission’s rules). 25. Given our rejection of Behr’s argument that he received a partial grant, Behr offers no convincing explanation why he could not have filed an application for review or a petition for reconsideration of the Mobility Division’s denial of his waiver request instead of, or in addition to, his Section 1.110 letter rejecting the grant of his license application. Indeed, in light of Buckley-Jaeger v. FCC, Behr should have realized that Section 1.110 may not apply and that he should protect his options by filing an application for review or petition for reconsideration in addition to his Section 1.110 filing. The filing of an application for review or petition for reconsideration would not impair his opportunities under Section 1.110 in the event that the Commission agreed that Section 1.110 applied to Behr’s case, nor would the Section 1.110 filing undercut his application for review or petition for reconsideration if Section 1.110 proved inapplicable. 15933 10 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 32 of 107 Federal Communications Commission FCC 14-207 26. We also find inapposite the cases Behr cites to support his contention that his modification application was not granted in full so that Section 1.110 provided the only procedural avenue for him to follow. Citing Murray Hill Broadcasting Company, 74 Behr points out that the Commission noted that “an applicant may not, on the one hand, accept a Commission grant and, on the other hand, seek an administrative appeal of the authorization.” 75 Behr also quotes the court in Central Television, Inc. v. FCC, 76 as saying that “[a]cceptance of a grant, with any attendant conditions, is presumed if no rejection occurs within thirty days of the grant’s issuance.”77 Behr further contends that “[t]o underscore the importance of this point, the court in Mobile Communications v. FCC, 78 held that an applicant would normally be barred from seeking judicial review of the Commission’s actions if it failed to follow the mandatory administrative exhaustion requirement of rejecting the grant as made.”79 Finally, Behr asserts that the court in Tribune Company v. FCC 80 “insisted that, absent futility, an applicant was required to implement the procedures of Section 1.110 when the Commission granted its assignment application but denied the associated cross-ownership waiver.”81 27. While Behr accurately quotes statements from the first two cases, Central Television, Inc. v. FCC and Murray Hill Broadcasting Company, those facts are easily distinguishable from the Behr fact pattern. Behr’s modification application was granted without condition. Both Central Television, Inc. v. FCC and Murray Hill Broadcasting Company, however, involve applications that were granted contingent only on each applicant’s agreement to specific conditions. In both cases, the applicants first accepted the conditional grants, and later attempted to appeal the conditions attached to the grants as made. The appeals were rejected because the applicants did not comply with the procedural requirements of Section 1.110. 28. In Central Television, Inc. v. FCC, the Commission granted an application to assign a broadcast construction permit subject to the condition that no settlement payments were made in excess of $100,000 called for in the assignment contract.82 Nearly two months later, the parties completed the assignment and the assignor received the maximum compensation allowed under the grant.83 As the court described, having secured this benefit, authorized by a Commission ruling that clearly conditioned the assignment on accepting no additional compensation, the assignor appeals “now asserting its right to additional compensation.”84 Finding this position untenable, the court dismissed the appeal for lack of jurisdiction because the parties to the assignment failed to comply with Section 1.110 of the Commission’s rules for challenging a conditional grant.85 The court further explained that it had 74 In re Application of Murray Hill Broadcasting Company for a Construction Permit for Minor Changes in Station WQMG-FM, Greensboro, North Carolina, Memorandum Opinion and Order, 8 FCC Rcd 325 (1993) (Murray Hill Broadcasting Company). 75 2007 Petition at 2 (quoting Murray Hill Broadcasting Company, 8 FCC Rcd at 327, ¶ 19). 76 Central Television, Inc. and WTWV, Inc. 834 F.2d 186, (D.C. Cir. 1987) (Central Television, Inc. v. FCC). 77 2007 Petition at 2 (quoting Central Television, Inc. v. FCC, 834 F.2d at 190). 78 Mobile Communications Corporation of America v. FCC, 77 F.3d 1399 (D.C. Cir. 1996) (Mobile Communications v. FCC). 79 2007 Petition at 2. 80 Tribune Company v. FCC, 133 F.3d 61 (D.C. Cir. 1998). 81 Application for Review at 6. 82 Central Television, Inc. v. FCC, 834 F.2d at 189. 83 Id. 84 Id. at 190. The additional compensation involved consultancy payments in the amount of $475,000 that staff found violated Commission rules. Id. at 189. 85 Id. at 191. 15934 11 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 33 of 107 Federal Communications Commission FCC 14-207 previously “upheld the FCC’s authority to require applicants either to accept a conditional grant or reject it and make a timely request for a full hearing. Section 1.110 does not allow applicants first to accept a partial grant, yet later to seek reconsideration of its conditions.”86 29. In Murray Hill Broadcasting Company, the licensee filed an application to relocate a short-spaced broadcast station and to increase the authorized antenna height and power limits.87 After the application was dismissed because the proposed power level exceeded the maximum allowed, the licensee filed a petition seeking reconsideration of the dismissal, arguing that staff had erred and that, in any event, a waiver of the base station separation requirements was justified. If staff once again rejected its original proposal, the licensee proffered an amendment to its application proposing a power level that would comply with Commission rules.88 Staff granted reconsideration to the extent it approved the licensee’s amended proposal to operate at the lower power level.89 Even though the licensee filed an application for review objecting to the conditions of the grant, it made the authorized modifications to its station, filed an application for a covering license, which was granted, and began operating at the lower power level in accordance with its amended proposal.90 30. The Commission denied the application for review substantively, finding the staff action granting reconsideration to the extent that it approved the licensee’s amended power level proposal was proper.91 The Commission also concluded that dismissal of the initial application was proper and that waiver of its rules to allow the power level proposed in the licensee’s initial application was not justified.92 The Commission found, as an independent procedural basis for rejecting the application for review, that the licensee failed to challenge the terms of the conditional grant of the amended application according to the procedure prescribed in Section 1.110. 93 Behr, in his 2007 Petition, asserted that Murray Hill Broadcasting Company “stands unequivocally for the proposition that an applicant may not follow the procedure suggested in the [Order on Reconsideration] (i.e. seeking reconsideration or filing an application for review) when an application including a waiver has been granted without the waiver.”94 The application that was granted in Murray Hill Broadcasting Company, however, did not require waiver of the power level requirements. 31. Again, in Murray Hill Broadcasting Company, grant of the amended application was contingent on whether the applicant agreed to the lower power level proposed in its amended application as an alternative to the level originally proposed in its initial application. The Commission found that Section 1.110 was triggered because the staff granted the licensee’s amended proposal to operate at a lower power lever, a term to which the licensee objected. As the Mobility Division stated in its Order on Reconsideration, contrary to Behr’s assertion, the Commission’s denial of the request for waiver of the power level proposed in the licensee’s initial application in Murray Hill Broadcasting Company had no bearing on the licensee’s procedural options with regard to its amended application in that case.95 86 Id. at 190. 87 Murray Hill Broadcasting Company, 8 FCC Rcd at 325, ¶ 4. 88 Id. at 325, ¶ 6. 89 Id. at 326, ¶ 7. 90 Id. 91 Id. at 327, ¶ 20. 92 Id. 93 Id. at 327, ¶ 19. 94 2007 Petition at 2. 95 Order on Reconsideration, 24 FCC Rcd at 7199, ¶ 7. 15935 12 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 34 of 107 Federal Communications Commission FCC 14-207 32. Behr is apparently attempting to avoid the circumstances of these cases where the applicants clearly accepted the conditions granted and only later sought appeal of those very conditions. Unlike Behr’s modification application, however, in neither of these cases could the applications have been granted absent agreement to the conditions associated with the grants. In Central Television, Inc. v. FCC, grant of the assignment application was allowed only upon agreement to the conditions regarding compensation under an assignment contract. In Murray Hill Broadcasting Company, grant of the modification application depended on acceptance of the lower power level proposed in the licensee’s amended application. 33. In this case, in granting Behr’s modification application without condition, Commission staff modified Behr’s license to the precise extent that Behr had requested in his application as originally filed. Staff authorized the amended contact information, accepted the answers to the foreign ownership questions, and authorized interconnected service, all without conditions. Behr did not receive less than the modified license for which he had applied. 34. Finally, Mobile Communications v. FCC, and Tribune Company v. FCC, also cases that involve conditional grants of applications, address when court review is appropriate under Section 402(b) of the Communications Act. Section 402(b) permits, in relevant part, appeals from Commission orders to the court of appeals regarding an application for a construction permit or an assignment application, where the application is denied by the Commission.96 In both cases, the initial issue was whether the court had jurisdiction where the Commission had granted the applications at issue, albeit contingent on certain “unrequested” conditions. The court decided that when the Commission grants an application subject to some condition that the applicant did not request, the application has been denied for purposes of judicial review under Section 402(b).97 35. The court, however, rejected Tribune Company’s argument that Section 1.110 was inapplicable because, according to Tribune, even though the Commission had granted its application with conditions, its application had, in effect, been denied. The court explained that Section 1.110, unlike Section 402(b), is written to specifically deal with a conditional grant and “it could not be clearer that it covers the present case.”98 The court further stated that just because a partial grant is a denial for purposes of Section 402(b)(3) does not mean that the same reasoning applies to Section 1.110. 99 The 96 47 U.S.C. §§ 402(b)(1) and (3). 97 Tribune Company v. FCC, 133 F.3d at 66 (citing Mobile Communications v FCC, 77 F.3d at 1404). In Mobile Communications v. FCC, Mobile Telecommunications Technologies Corp. (Mtel) sought a finder’s preference license that would have been awarded without charge under then-applicable law. 77 F.3d at 1403. Before the Commission ruled on Mtel’s application, Congress amended the Communications Act to require payment for licenses, so the Commission imposed a charge on Mtel’s license. Id. The court of appeals determined that Mtel’s application was properly viewed as being for a free license rather than a license subject to any condition. By awarding a license subject to a condition of payment, the court found the Commission in effect denied that application for purposes of Section 402(b)(1). Id. at 1404. In Tribune Company v. FCC, Tribune Company sought to acquire control of a broadcast TV station license where the contour of the TV station encompassed the entire community in which the newspaper was published in violation of the Commission’s daily newspaper cross-ownership rules. 133 F.3d at 64. The Commission granted the assignment application subject to a condition that Tribune divest itself of one of its media outlets within one year of the grant. Id. The court, in reviewing its statutory jurisdiction over the proceeding, concluded that Tribune’s application was denied for purposes of Section 402(b)(3). Id. at 66. 98 Tribune Company v. FCC, 133 F.3d at 66. 99 Id. Behr’s assertion in his Application for Review that Tribune Company v. FCC involved an assignment application where the associated request for waiver was denied, see supra text accompanying note 81, is an inaccurate reading of the facts of the case. The application at issue did not include a request for waiver, but was granted with conditions. Only after Tribune Company accepted the conditional grant did it seek waiver of the Commission’s daily newspaper cross-ownership rules. In particular, in that case, Tribune Company, which (continued….) 15936 13 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 35 of 107 Federal Communications Commission FCC 14-207 court further stated in both cases that a party whose license application has been denied by approval subject to conditions (other than ones requested by the applicant) must normally comply with Section 1.110.100 While the court in these cases discusses review under Section 402(b) of the Communications Act and review under Section 1.110 of our rules, each case again involves an application that could be granted contingent only on the applicant’s agreeing to certain conditions, i.e. terms to which the applicants objected. 36. Finally, Section 1.925(b) of our rules provides that “[r]equests for waiver of rules associated with licenses or applications in the Wireless Radio Services must be filed on FCC Form 601, 603, or 605.”101 Section 1.925(c)(ii) provides that “[d]enial of a rule waiver request associated with an application renders that application defective unless it contains an alternative proposal that fully complies with the rules, in which event, the application will be processed using the alternative proposal as if the waiver had not been requested.”102 Citing Section 1.925(b), Behr argues that he was required to submit his waiver request along with an application.103 Behr also cites Section 1.925(c)(ii) of our rules to suggest that the rule “seemed to require the application to be denied – which would have permitted a straightforward appeal of the Bureau’s action.”104 37. First, Section 1.925(b) is a procedural requirement that does not relieve a filer of its obligation to meet deadlines for seeking reconsideration of an action. Moreover, we note that Section 1.925(c)(ii) addresses situations in which waiver requests have been denied, and provides that in those cases, if an “alternative proposal” has been submitted that fully complies with our rules, the underlying applications will be processed using the alternative proposal. The rule section also addresses the situation where it is necessary to consider the associated waiver request in connection with the application.105 We (Continued from previous page) published newspapers in Fort Lauderdale, Florida, filed an application to acquire six television station licenses. Tribune Company v. FCC, 133 F.3d at 64. Because one TV station’s Grade A contour encompassed the entire Fort Lauderdale community, Tribune’s newspaper and the TV station were in the same primary market, and the daily newspaper cross-ownership rule prohibited their common ownership. Id. Upon granting the assignment application, the Commission also granted Tribune temporary waiver of the rule, which allowed Tribune to take possession of the TV station, but conditioned the grant on Tribune’s divesting itself of the TV license or the newspaper within one year of the grant of the application. Id. After accepting the grant, Tribune sought a permanent waiver of the rule. Id. at 65. 100 Id. at 67 (citing Mobile Communications v. FCC, 77 F.3d at 1404). 101 47 C.F.R. § 1.925(b). 102 Id. § 1.925(c)(ii). 103 Application for Review at 4. 104 Id. at 4-5. 105 See, e.g., In the Matter of State of Florida, Order, 22 FCC Rcd 1782 (PSHSB 2007) (dismissing applications to operate on “offset” short-spaced channels after denying the associated request for waiver of the Commission’s short- spacing rules); In the Matter of Application of City of Crystal Lake, Illinois, Order, 18 FCC Rcd 2498 (WTB PSPWD 2003) (dismissing an application to operate on a microwave link frequency using a bandwidth of 8 MHz after denial of the request for waiver of the rule that allows bandwidths only from 625 kHz to 2.5 MHz for that frequency); In the Matter of Midport Electronics, Inc., Order, 17 FCC Rcd 13778 (WTB PSPWD 2002) (dismissing an application to relocate base stations outside distances permitted after denial of a request for waiver of the rule that confines the location of base stations to within 50 miles of the geographic center of Detroit, Michigan); In the Matter of Applications for Consent to Assignment of Private Land Mobile Radio Authorizations From Lotus Development Corp. and Sequent Computer Systems, Inc. to IBM Research and Development, Inc. International Business Machines Corp., Order, 16 FCC Rcd 5209 (WTB PSPWD 2001) (dismissing assignment applications that require the signature of a director, officer, or authorized employee of the assignor, after denial of the request for waiver of the signature requirement to allow an employee of the assignee to sign for the assignor after the assignment has already been completed and where the assignor has become the assignee’s subsidiary); In the Matter of the Application of Southwestern Public Service Company, Order, 15 FCC Rcd 11010 (WTB PSPWD 2000) (dismissing (continued….) 15937 14 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 36 of 107 Federal Communications Commission FCC 14-207 believe it would be illogical and contrary to administrative efficiency to read this rule as requiring the dismissal of an application where it is not necessary to consider the attached waiver request in connection with the application.106 38. Grant of Behr’s modification application was not a conditional grant, nor was the denial of Behr’s request for waiver contingent on or otherwise related to any change in the elements of his modification application. Rather, Behr received a fully granted modification application and a separate denial of his waiver request. Accordingly, we affirm the Mobility Division’s Order on Reconsideration, which correctly concluded that under Buckley-Jaeger v. FCC, Section 1.110 does not apply in these circumstances, and properly denied Behr’s reconsideration petition. B. Behr’s Request for Waiver of the Phase I 220 MHz Construction Rules 39. Behr also includes as an issue for review whether the Licensing and Technical Analysis Branch’s Waiver Denial Letter erred substantively by not granting his request for waiver of the Phase I non-nationwide construction requirements.107 In his waiver request, Behr asked the Commission to completely waive the Phase I non-nationwide construction requirements applicable to single-station licenses awarded through lottery. Phase I licensees were required, within one year of license grant, to construct a single base station under the authorized technical parameters (with no requirement to meet a specific population coverage benchmark) and to place the station in operation (defined as base station interaction with at least one mobile station) within that time frame.108 To construct his single base station, Behr requested a tenfold increase in the overall time frame for buildout, to match the amount of time afforded the much wider-reaching Phase II EA licenses acquired through competitive bidding, i.e. Behr sought five years to cover one-third of the population of his station’s service area, and 10 years to cover two-thirds of the population of the station’s service area. Citing the 220 MHz Second Report and Order, in which the Commission allowed Phase I non-nationwide licensees to relocate their base stations and to construct “fill-in” stations, Behr asserted that “the Commission decided to effectively turn Phase I non- nationwide licenses into geographic [area] licenses.” 109 Behr then contended that “having brought Phase I licensees into the modern regulatory model …, the Commission neglected to revisit the now outdated and anomalous 12-month construction period which still applied to those licensees.” 110 Behr concluded that “[g]rant of this waiver will put Behr on equal footing with the other similarly situated licensees.” 111 (Continued from previous page) an application to operate on common carrier channels after denial of a request for waiver to provide private radio services on those common carrier channels); In the Matter of Greenline Partners, Inc., Order, 14 FCC Rcd 17369 (WTB CWD 1999) (dismissing 100 applications to construct 100 transmitters to operate on a paging frequency on a nationwide exclusive basis, after denial of a request for waiver of the rule requiring a paging system to consist of 300 or more transmitters to obtain nationwide exclusivity on that frequency). 106 See supra text accompanying note 64 (where the Commission explained in the underlying case to Buckley-Jaeger v. FCC that it was not necessary to consider the licensee’s exemption request in connection to its renewal application). 107 Application for Review at 6. 108 47 C.F.R. § 90.155(a) and (c). 109 Waiver Request at 3. Later in his Waiver Request, Behr added that “[a]s noted above, the FCC effectively and deliberately converted Phase I licenses to the same geographic footing as regional and EA 220 MHz licenses when it authorized approval-less construction of multiple sites within a Phase I licensee’s defined license boundary.” Id. at 5. 110 Id. at 3-4. 111 Id. at 5. 15938 15 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 37 of 107 Federal Communications Commission FCC 14-207 40. Behr now asks the full Commission to directly review his request for waiver. We reject this request, however, and let the Wireless Bureau’s Waiver Denial Letter112 stand on the ground that Behr did not submit a petition for reconsideration or an application for review of the denial of his request for waiver of the Phase I construction requirements. Section 405(a) of the Communications Act, as implemented by Section 1.106(f) of the Commission’s rules, requires that a petition for reconsideration be filed within 30 days from the date of public notice of Commission action. 113 Section 1.106(f) of the Commission’s rules more specifically provides that a “petition for reconsideration and any supplement thereto shall be filed within 30 days from the date of public notice of the final Commission action, as that date is defined in § 1.4(b).” 114 Our procedural rules under Section 1.115 also require applications for review to be filed within 30 days of public notice of the relevant action. 115 41. The United States Court of Appeals for the District of Columbia Circuit has consistently held that the Commission is without authority to extend or waive the statutory 30-day period for filing petitions for reconsideration specified in Section 405(a) of the Communications Act, 116 except where “extraordinary circumstances indicate that justice would thus be served.” 117 We note the filing requirement of Section 405(a) of the Act applies even if the petition for reconsideration is filed only one day late. 118 Behr’s request for waiver was denied by letter dated November 12, 2003. The deadline for filing a petition for reconsideration or application for review was December 12, 2003. Behr neither sought reconsideration by the deadline nor requested that we waive the filing deadline for seeking such reconsideration. Moreover, there is no factual basis in the record to support a finding of extraordinary circumstances that could justify deviating from the statutory deadline for filing petitions for reconsideration, and the record is similarly devoid of any basis for waiving the deadline for filing applications for review. Accordingly, in rejecting Behr’s request at the current stage of this proceeding for a substantive review of his original request for a waiver of the construction deadline, we need not and do not rely on the substantive infirmities of the arguments Behr has raised to support his request for more time to meet his construction obligations. 42. With respect to the extraordinary considerations required to waive the statutory deadline for filing petitions for reconsideration, we observe that Behr has not made any showing that such circumstances are present in his case. The most we can discern on this count from his filings is the suggestion that it was reasonable to forego seeking reconsideration because of his belief that the only way he could preserve his rights was by following Section 1.110 procedures. For the reasons set forth above, it is clear that Behr, who was represented by competent communications counsel, had no reasonable basis 112 See supra note 40 (citing the Waiver Denial Letter issued by the Wireless Bureau’s Technical Analysis Branch of the Commercial Wireless Division). 113 47 U.S.C. § 405(a). 114 47 C.F.R. § 1.106(f). 115 See 47 U.S.C. § 155(c)(4) (providing that “[a]ny person aggrieved by any … order, decision, report or action [under delegated authority] may file an application for review by the Commission within such time frame and in such manner as the Commission shall prescribe”); 47 C.F.R. § 1.115(d) (providing that an “application for review and any supplemental thereto shall be filed within 30 days of public notice of such action, as that date is defined in section 1.4(b)”). 116 See Reuters Ltd. v. FCC, 781 F.2d 946, 951-52 (D.C. Cir. 1986); Gardner v. FCC, 530 F.2d 1086 (D.C. Cir. 1976). 117 See Reuters, 781 F.2d at 952 (holding that express statutory limitations barred the Commission from acting on a petition for reconsideration that was filed after the due date); Gardner, 530 F.2d at 1091 (excepting where “extraordinary circumstances indicate that justice would thus be served”). 118 See, e.g., Panola Broadcasting Co., Memorandum Opinion and Order, 68 F.C.C. 2d 533 (1978) (dismissing a petition for reconsideration that was filed one day after the statutorily allotted time for filing requests for reconsideration); Metromedia, Inc. Memorandum Opinion and Order, 56 F.C.C. 2d 909 (1975) (same). 15939 16 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 38 of 107 Federal Communications Commission FCC 14-207 for concluding that Section 1.110 applied to his case or that he had no other options to secure his rights to redress than the course of action he took. 119 Moreover, there is nothing else in this proceeding – extraordinary or otherwise – that would justify looking past the strict petition for reconsideration filing requirements.120 43. While the deadline for filing an application for review is not mandated by statute,121 there is similarly no basis in the record that could justify waiving that deadline. Behr never filed an application for review of the November 12, 2003 Waiver Denial Letter that directly denied his request for waiver, and he never requested additional time for doing so.122 Accordingly, we have no basis under the review provisions of Section 1.115 to revisit the substantive merits of Behr’s underlying request for waiver of the construction rule.123 That said, we observe that even were we to examine the factual assertions that Behr has made to justify additional time to build – whether the ten more years that Behr requested or any smaller amount of time – we see nothing in those assertions or in the way the Wireless Bureau handled them that would have warranted grant of the requested relief. For example, the determination in the Waiver Denial Letter that Behr had failed to show that his single site-specific license awarded through lottery was “as equally complex to construct as a Phase II license,” and that “[g]eographic area licenses, therefore, are inherently more complex with regard to construction issues,” was logical and well supported. 124 Nor does the record contain any underlying facts specific to Behr’s case that, collectively, could conceivably have supported a decision to provide Behr with additional time to meet his 119 See supra ¶¶ 17-38 (demonstrating that applicable precedent such as Buckley-Jaeger clearly teaches that Section 1.110 does not apply to the Wireless Bureau’s denial of Behr’s request for waiver of the construction deadline, that Behr could have secured his rights by filing a timely petition for reconsideration or application for review, and that, even in the event he perceived any ambiguity in the appropriate procedural vehicle for redress, he could have preserved all his options by filing a petition for reconsideration or application for review in addition to a Section 1.110 pleading). 120 In this regard, we note that the errors predating the grant of Behr’s license have no relevance to his subsequent failure to preserve his rights to contest the Wireless Bureau’s determination that he had failed to comply with one of the most basic obligations for holding a license – i.e., constructing the station on a timely basis. 121 See, e.g., Charles T. Crawford et al., Order, 17 FCC Rcd 2014, 2019 n.44 (2002) (Crawford) (observing that “[t]ime limitations on the filing of Applications for Review are established solely by Commission rule”). 122 Behr’s attempt to resurrect his substantive arguments for waiver of the construction rule in the pending Application for Review (filed in 2009 as a culmination of Behr’s challenge to the Wireless Bureau’s Section 1.110- related action) constitutes, at best, an attempt – six years after the fact – to seek review of the 2003 Waiver Denial Letter. 123 See Crawford, 17 FCC Rcd at 2019 n.44 (holding that “no waiver [of the deadline for filing an application for review was] warranted” because the party had “neither explained his failure to file a timely application for review nor requested a waiver of the filing deadline”). 124 Waiver Denial Letter at 2. In particular, the letter explained that “[s]ervice in Phase I licensed areas may be provided by a single site unlike geographic areas which cover a much larger land area,” and that “geographic area licenses are assigned a larger block of frequencies and are required to build around incumbent stations.” Id. Behr was essentially asking for the same amount of time to construct a single base station (with coverage of approximately 2,500 square miles) as an EA licensee receives for constructing a sufficient number of stations to cover an area that is on average 20,000 square miles in size. See 220 MHz Second Memorandum Opinion and Order, 11 FCC Rcd at 221, n.100. As the Commission has explained, by providing 120 km co-channel protection for Phase I non-nationwide 220 MHz stations based on the provision of 10 dB protection to the station’s 38 dBuV/m field strength contour, stations operating at maximum power and antenna height would “produce a service area with a 38 dBu contour at about 45 kilometers (28 miles).” 220 MHz Second Report and Order, 11 FCC Rcd at 3669, ¶ 5. Based on that calculation, the Commission found that Phase II EAs would, on average, be eight times larger than the service area of a Phase I non-nationwide station. 220 MHz Second Memorandum Opinion and Order, 11 FCC Rcd at 220-21, ¶ 18. 15940 17 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 39 of 107 Federal Communications Commission FCC 14-207 construction obligations. 125 Similarly, we reject the notion that any purported flaw in the Commission’s 1996 rulemaking decision to keep in place the 12-month construction deadline for Phase I non-nationwide licensees provides a basis for modifying Behr’s 12-month construction deadline.126 44. In sum, because Behr did not meet the respective deadlines for filing a petition for reconsideration or an application for review of the Waiver Denial Letter (both December 12, 2003) – and because this case presents no circumstances, extraordinary or otherwise, that call into question the propriety of giving force to these deadlines – we deny Behr’s request in the present Application for Review for substantive review of the Waiver Denial Letter and, accordingly, we let that letter order stand.127 125 We note that in waiver cases – which are handled on a case-by-case basis – the burden of proof rests with the petitioner to plead specific facts and circumstances that would make the rule inapplicable. Tucson Radio, Incorporated (KEVT) v. FCC, 452 F.2d 1380, 1382 (D.C. Cir. 1971). Behr, however, failed to introduce into the record any plan for proposed operations to serve customers or any evidence of circumstances preventing him from meeting the applicable construction deadline. Nor did Behr cite any involuntary loss of site or other circumstances beyond his control that might have justified an extension of time, see, e.g., 47 C.F.R. §§ 1.946(e), 90.155(g), even for a more targeted period (e.g. a two-year extension of time to construct), and while Behr argued that other 220 MHz non-nationwide licensees received extensions of their construction deadlines, Waiver Request at 2, he provided no specific facts to explain why ten years is necessary to construct a single station license. Rather, Behr equated his situation to the Phase II geographic area licensees solely on the basis that the Commission had adopted new rules for such licensees operating in the same 220 MHz band he was licensed to operate in, notwithstanding that his license authorized much more limited operations and required much less buildout. See 220 MHz Third Report and Order, 12 FCC Rcd at 11008, ¶ 139 (distinguishing between the Phase I and Phase II licensing regimes, stating that “Phase I non-nationwide licensees are not authorized to operate within a particular geographic area, but instead are authorized to construct a single land mobile base station for base/mobile operations”). Thus, Behr’s assertions that the Commission had effectively converted the Phase I licensees into comparable geographic licensees is patently erroneous. 126 We note that in attempting to discredit the rationality of the Commission’s rulemaking decision to keep the12- month construction deadline in place for Phase I licensees, Behr asserted that the Commission “neglected to revisit the now outdated and anomalous 12-month construction period which still applied to [Phase I] licensees.” Waiver Request at 3-4. In fact, the Commission made a considered decision to retain this construction period in modifying Section 90.725(f) to allow more flexibility in defining whether a licensee has placed its station in operation. See 220 MHz Second Report and Order, 11 FCC Rcd at 3676, ¶¶ 30-31; see also 47 C.F.R. § 90.757(a) (providing that “a Phase I non-nationwide licensee that is granted modification of its authorization to relocate its base station must construct its base station and place it in operation, or commence service, on all authorized channels on or before August 15, 1996, or within 12 months of initial grant date, whichever is later”). 127 Thus, we reject on procedural grounds Behr’s attempt in the present Application for Review to revisit the merits of his request for waiver of his construction obligations; Behr’s failure to seek reconsideration or review of the Wireless Bureau’s Waiver Denial Letter constitutes a fatal procedural infirmity that has cut off any right of review of these underlying merits, and our rejection of his current request for such review is independent of any discussion herein of the merits. See BDPCS, Inc. v FCC, 351 F.3d 1177, 1182-84 (D.C. Cir. 2003) (explaining that a court must affirm an agency decision properly dismissing a suit on procedural grounds regardless of the agency's consideration of the substantive merits). 15941 18 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 40 of 107 Federal Communications Commission FCC 14-207 IV. ORDERING CLAUSE 45. Accordingly, IT IS ORDERED pursuant to Sections 4(i), 5(c) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 155(c) and 405(a), and Sections 1.106 and 1.115 of the Commission’s Rules, 47 C.F.R. §§ 1.106 and 1.115, that the Application for Review filed by Lawrence Behr on June 19, 2009 IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 15942 19 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 41 of 107 20 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 42 of 107 21 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 43 of 107 22 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 44 of 107 23 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 45 of 107 24 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 46 of 107 25 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 47 of 107 26 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 48 of 107 27 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 49 of 107 Federal Communications Commission DA 09-1167 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of LAWRENCE BEHR For a Modification to Station WPWR222 ) ) ) ) File No. 0001332167 ORDER ON RECONSIDERATION Adopted: May 27, 2009 Released: May 27, 2009 By the Chief, Mobility Division, Wireless Telecommunications Bureau: 1. Introduction. In this Order on Reconsideration, we address a petition (Petition)1 filed on February 13, 2007 by Lawrence Behr (Behr), seeking reconsideration of a January 31, 2007 letter order2 of the Mobility Division (Division), which dismissed Behr’s request for a hearing pursuant to Section 1.110 of the Commission’s Rules.3 For the reasons stated below, we deny the Petition. 2. Background. In 1993, the Commission conducted a lottery for a Phase I 220 MHz license in Denver,4 and Behr was the tentative selectee. However, the Commission subsequently requested that Behr resubmit a corrected application with additional technical information.5 Behr did so in a timely manner, but the Commission misplaced the application and, believing that Behr had not responded, granted a Phase I 220 MHz license in Denver to the second tentative selectee. To correct this administrative error, the Commission, on its own motion, set aside the grant, and reinstated Behr’s application, which was granted on January 8, 2003 under Call Sign WPWR222.6 On June 2, 2003, Behr filed an application to modify the license by updating the contact information for the license and changing the station class from FB6 to FB6C.7 Along with the application, Behr filed a request for a waiver of the construction requirements in Rule 90.725.8 The Commission denied the waiver request on November 12, 1 Petition for Reconsideration (filed February 13, 2007) (Petition). 2 Letter dated January 31, 2007, from Lloyd W. Coward, Deputy Chief, Mobility Division, Wireless Telecommunications Bureau, to Lawrence V. Behr, 22 FCC Rcd 1798 (WTB MD 2007) (Division Order). 3 47 C.F.R. § 1.110 (requiring the Commission, in case of a partial grant of an application or grant with terms or conditions other than those requested, to vacate its original action and set the application for a hearing, if the applicant files within 30 days a written request rejecting the grant as made). 4 See Commission Announces Tentative Selectees for 220-222 MHz Nationwide Commercial Private Land Mobile Channels, Public Notice, 58 Fed. Reg. 26322 (May 3, 1993). 5 See Application Return Notice for the Private Land Mobile Radio Services, dated January 28, 1993. See also former rule section 90. 141, 47 C.F.R. § 90.141 (1993) (applicant must supply requested information within sixty days of application return notice date in order to retain place in application processing line). 6 See Lawrence Behr, Net Radio Communications Group, LLC, Order, 17 FCC Rcd 19025 (WTB CWD 2002). 7 See FCC File No. 0001332167. 8 See id., attached Waiver Request; see also 47 C.F.R. § 90.725. 7196 28 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 50 of 107 Federal Communications Commission DA 09-1167 2003,9 but granted the underlying modification application on November 17, 2003.10 3. On December 17, 2003, Behr filed a petition, pursuant to Section 1.110 of the Commission’s Rules,11 rejecting the grant of the application, and requesting a hearing.12 The Mobility Division dismissed the hearing request, stating that Section 1.110 applies only to instances where the Commission “grants any application in part or with privileges, terms, or conditions other than those requested.”13 The Division explained that a petition for reconsideration and/or application for review were the two appropriate vehicles for challenging its denial of the waiver request.14 4. On February 13, 2007, Behr filed the instant Petition. Behr claims that the Division erred in dismissing his Section 1.110 petition because it was the Commission’s action of denying the waiver request but granting the underlying application that “left Behr with no choice but to reject the grant and request a hearing.”15 Behr states that had the Commission denied the application, he would have sought reconsideration of that denial or filed an application for review.16 Because the application was granted, Behr asserts that, in order to exercise his right to contest the denial of the waiver request, he had to reject the grant, as required by Section 1.110, otherwise he would have been deemed to have forfeited that right.17 5. Discussion. We find Behr’s request for reconsideration without merit.18 At the outset, we find Behr’s recitation of the facts in this case to be factually inaccurate. Behr’s argument is based entirely on his contention that “[t]he application sought no modification to the license other than the change in the build-out deadline” encompassed in the waiver request attached to the application.19 Behr states that “the application as granted effected no modification whatsoever to the original license since the Commision denied the only change which has been requested.”20 A review of the Commission’s publicly available Universal Licensing System database reflects that the Commission granted in full Behr’s application seeking authority to modify call sign WPWR222 to change the contact information and add interconnected service. Specifically, the transaction log for File No. 0001332167 in ULS shows that on June 2, 2003, the licensee requested the following modification to his license for Station WPWR222: (1) adding Donald J. Evans, Esq. of the law firm Fletcher, Heald & Hildreth in Arlington, Virginia, as a contact person for the licensee; (2) adding answers to questions concerning alien ownership; and (3) 9 Letter dated November 12, 2003 from Ronald B. Fuhrman, Deputy Chief, Technical Analysis Section, Commercial Wireless Division, Wireless Telecommunications Bureau, to Donald J. Evans, Esq., Counsel to Lawrence V. Behr. 10 See FCC File No. 0001332167. 11 47 C.F.R. § 1.110. 12 Letter dated December 17, 2003, from Lawrence V. Behr, to Marlene H. Dortch, Secretary, Federal Communications Commission. 13 Division Order, 22 FCC Rcd at 1798 (quoting Section 1.110). 14 See id. at 1799. 15 Petition at 1. 16 Id. 17 Id. at 1-2. 18 We note that Behr states that he “would not object to the Bureau revisiting its 2003 action on the application at issue” and that he “requests that the Bureau simply grant the relief requested by Behr in the application.” Petition at 4. However, Behr presents no arguments in support of his request, including arguments that the Bureau erred in its 2003 denial of Behr’s waiver request. 19 Id. at 1, 3. 20 Id. at 3. 7197 29 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 51 of 107 Federal Communications Commission DA 09-1167 changing the station class for Location 1, Antenna 1, Frequencies 220.0875, 220.2375, 220.3875, 220.5375, and 220.6875 MHz from FB6 to FB6C (the code for interconnection).21 ULS procedures require applicants filing modification application to use a password in association with that licensee’s FRN. Behr does not argue or provide evidence that the referenced modification was requested in error by the licensee or counsel; rather, Behr argues that no such modification was requested. Contrary to Behr’s assertion, we find that the record reflects that an application seeking modification of call sign WPRW222, independent of Behr’s attached request for waiver of construction requirements, was filed and was granted. 6. Given the facts presented, we agree that the Division correctly concluded that the United States Court of the District of Columbia Circuit case of Buckley-Jaeger Broadcasting Corporation of California v. FCC is on point.22 Buckley-Jaeger concerned a renewal application, which the Commission granted, with an attached request for exemption from the rules, which the Commission denied.23 The court expressly noted that the relief under Section 1.110 was inapplicable because the Commission granted the license renewal application in full, and denied only the request for exemption that was filed together with the application.24 Similarly, the instant matter concerns a fully-granted modification application and a separately-attached request for a waiver of the Commission’s construction requirements that was denied. Accordingly, the Division correctly concluded that Section 1.110 does not apply, and properly dismissed Behr’s reconsideration petition. 7. We also disagree with Behr’s contention that the Commission’s 1993 decision in the Murray Hill Order25 stands for the proposition that a licensee may not seek remedy through a petition for reconsideration or application for review when the Commission grants the licensee’s application, but denies an accompanying waiver request,26 as such an interpretation would be inconsistent with Buckley- Jaeger. Rather, we find that the Murray Hill Order clarifies the procedural limitations on an applicant seeking alternative relief. In the Murray Hill Order, the Commission dismissed a licensee’s application to relocate the antenna of a broadcast station because it would violate then-applicable power limit restrictions.27 The licensee filed a petition for reconsideration of the dismissal, claiming that the application was in compliance with the technical rules, or that a waiver of that requirement would be justified.28 The licensee also filed a contingent amendment to its application that complied with the power limit.29 Commission staff then rejected the originally filed application, but granted the alternative 21 See FCC File No. 0001332167. The November 17, 2003 entries in the transaction logs were added by the Commission staff to indicate that a temporary condition (entry “T”) in the form of text (entry “80”) stating that ‘the associated waiver was denied” was added to the license. 22 Buckley-Jaeger Broadcasting Corporation of California v. FCC, 397 F.2d 651 (D.C. Cir. 1968); see also Decision, 22 FCC Rcd at 1799. 23 See Buckley-Jaeger, 397 F.2d at 652-3. 24 Id. at 656 (“It is also clear that section 1.110 of the Commission’s rules has no application here. The rule concerns situations where the applicant receives less than a full authorization. But here Appellant received the full authorization to which it was entitled under the statute and rules. In these circumstances we do not believe the rule can reasonably be interpreted as making a hearing mandatory.”). 25 Murray Hill Broadcasting Company, Memorandum Opinion and Order, 8 FCC Rcd 325 (1993) (“Murray Hill Order”). 26 See Petition at 2. 27 See Murray Hill Order, 8 FCC Rcd at 325; see also 47 C.F.R. § 73.213(a) (1987). 28 See Murray Hill Order, 8 FCC Rcd at 325. 29 See id. 7198 30 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 52 of 107 Federal Communications Commission DA 09-1167 application, as amended.30 The licensee filed an application for review of that staff action (rejecting the initial application, and granting the amended application), but actually made the authorized modifications while its application for review was pending and was operating pursuant to the granted parameters during the pendency of that appeal.31 The Commission denied the application for review substantively, finding that the staff’s interpretation of the technical rules to be correct and agreeing that a waiver was not warranted, and found, as an independent procedural basis for rejecting the application for review, that the licensee had failed to challenge the terms of the grant according to Section 1.110.32 The Commission found that Section 1.110 was triggered because the staff granted the licensee’s application with terms to which the licensee objects by granting its amended proposal, rather than its initial proposal, and that the licensee failed to challenge the terms of the grant according to the Section 1.110 procedures. 33 The Commission also found that the licensee effectively accepted the grant when it subsequently modified its license as authorized.34 The Commission stated that “an applicant may not, on the one hand, accept a [C]ommission grant and, on the other hand seek an administrative appeal of the authorization.”35 Contrary to Behr’s assertion, the Commission’s denial of the accompanying waiver request in Murray Hill had no bearing on the licensee’s procedural options. 8. In contrast, Behr’s request for waiver of the construction requirements was separate from his application that was granted with the requested modifications (i.e., change of contact information, update of answers to alien ownership questions, and change of the station class from FB6 to FB6C). Unlike the facts in the Murray Hill Order, Behr filed no application or amendment seeking relief in the alternative that was granted and which required Section 1.110 action. As Behr’s underlying modification application was granted in full and not on terms with which Behr disagreed, the only substantive denial was the request for waiver. Under Buckley-Jaeger, a challenge to the denial of the waiver request must be made through the filing of a petition for reconsideration and/or application for review, pursuant to Sections 1.106 and 1.115 of the Commission’s Rules, rather than through the request of a hearing under Section 1.110.36 Therefore, we agree with the Division’s decision in this matter. 9. 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 Sections 0.131, 0.331, and 1.106 of the Commission's Rules, 47 C.F.R. §§ 0.131, 0.331, and 1.106, that the Petition for Reconsideration filed by Lawrence V. Behr on February 13, 2007 IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Roger S. Noel, Chief Mobility Division Wireless Telecommunications Bureau 30 See id. at 326. 31 See id. 32 See id. 33 Id. at 327. 34 Id. 35 Id. 36 47 C.F.R. §§ 1.106, 1.115. 7199 31 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 53 of 107 )JO) BEFORE THE In re Application of FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 Lawrence Behr for a ) File No. 0001332167 Modification to ) Station WPWR222 To: Chief, Mobility Division PETITION FOR RECONSIDERATION Lawrence Behr ("Behr"), by his attorneys, hereby petitions the Commission to reconsider its January 31, 2007 Letter Order dismissing Behr's request for a hearing pursuant to Section 1.110 of the rules. For the reasons set forth below, Behr believes the Commission's action was erroneous since the peculiar procedural posture of this application left Behr with no choice but to reject the grant and request a hearing. It will be recalled that Behr's application for Station WPWR222 was granted in 2003 after having been lost by the processing line for more than a decade. Because the regulatory structure of the 220 MHz service had been revised markedly in the intervening decade to go to a non-site-based, geographic licensing scheme with five and ten year construction benchmarks, Behr requested that the Commission apply the more contemporary licensing scheme to his license as well. To accomplish that, he filed the instant application requesting a modification of the terms of his license, including an appropriate exhibit justifying a waiver of the outdated 12 month construction requirement (which by that time applied only to Behr and no other licensee in the world). The application sought no inod!Jication to the license other than the change in the build-out deadline. Had the Commission granted that application, all would have been well. Had the Commission denied that application, Behr could have followed the more typical review path of seeking reconsideration or filing an application for review. Instead, the Commission took the unusual step of granting the application but denying the requested waiver. The Commission's rules are quite clear that an applicant may not accept the good parts of an application as granted while appealing the bad parts: it must either accept the grant in toto or reject the grant and request a hearing. There is no other option under the rules. Section 1.110 specifically provides that [w]hen the Commission without a hearing grants any application in part, or with any privileges, 32 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 54 of 107 terms or conditions other than those requested ..., the action of the Commission shall be considered as a grant of such application unless the applicant shall ... file with the Commission a written request rejecting the grant as made. Had Behr not rejected the grant as made, he would have forfeited his right to contest the partial grant because he would have been deemed by operation of the rule to have accepted it. This was precisely the situation addressed by the full Commission in Murray Hill Broadcasting Company, 71 RR2d 1335, 1337 (1993). There an applicant had submitted a modification application which sought a waiver of the rule to permit short-spacing of its FM station. In the alternative, as permitted by the rules, the applicant had included a non-short-spaced proposal. The Commission granted the non-short-spaced proposal while denying the waiver request. The applicant thereupon built the modified station in accordance with the granted application but at the same time filed an application for review of the denial of the short-spacing request. The full Commission stated: [T]he staff, by delegated authority, granted Murray's application with terms to which Murray objects. That is, the staff granted Murray's amended proposal rather than its initial proposal. However, Murray failed to challenge the terms of grant according the procedure specified by Section 1.110 ... [AJn applicant may not, on the one hand, accept a Commission grant and, on the other hand, seek an administrative appeal of the authorization ... Consequently, having effectively accepted the grant as made and having failed to challenge the staffs action as required, Murray has foreclosed its opportunity to contest the terms of the construction permit." (Emph. in orig.) Murray Hill therefore stands unequivocally for the proposition that an applicant may not follow the procedure suggested in the Letter Order (i.e., seeking reconsideration or filing an application for review) when an application including a waiver has been granted without the waiver. The Commission in Murray Hill relied on Central Television, Inc. v. FCC, 834 F. 2d 186, 190-191 (D.C. Cir. 1987), which itself relied on a host of D.C. Circuit cases dating back to the 1930s, all holding that an application partially granted, or granted with unasked for conditions, will be presumed to be accepted in full if it is not expressly rejected by the applicant. "Acceptance of a grant, with any attendant conditions, is presumed if no rejection occurs within thirty days of the grant's issuance." To underscore the importance of this point, the Court in Mobile Communications Corp. ofAmerica v. FCC, 77 F.3d 1399 (D.C. Cir. 1996), cert. denied, 519 U.S. 823 (1996) held that an applicant would normally be barred from seeking judicial review of the Commission's action if it failed to follow the mandatory administrative exhaustion requirement of rejecting the grant as made. The upshot of all of these cases is that Behr was left with only two options by the Commission's "grant" of his application without granting the construction modification requested: he could do nothing, which would have 33 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 55 of 107 been deemed an acceptance of the grant in full and foreclosed any opportunity to appeal the denial of the waiver, or he could reject the grant and request a hearing. These were not Behr's preferences - they were the only avenues permitted by the Commission's rules, as consistently upheld and enforced by the D.C. Circuit. The request for a hearing was therefore entirely appropriate under the circumstances presented. The Letter Order makes two observations which must also be addressed here. First, the Letter Order indicates that the Bureau "granted Behr's application in full," presumably to bring the case within the ambit of Buckley-Jaeger v FCC, 397 F.2d 651 (D.C. Cir. 1968). In Buckley-Jaeger, the applicant had its license renewal application granted but without the program duplication waiver which it had requested. The Commission and the Court might felt that grant of the license renewal was the grant of the "full authorization" to which the applicant was entitled under the statute and the rules, and they therefore saw no need to apply the provisions of Section 1.110. Id. at 656. Here, however, the entire point of the application was to seek a modification of the build out schedule; there was nothing else applied for. The Commission literally denied the entire request for relief embodied in the application, yet now pronounces the application "granted in full." That is like giving a kid an ice cream cone -- only without the ice cream and without the cone. Looked at another way, the application as granted effected no modification whatsoever to the original license since the Commission denied the only change which had been requested. How can a modification application be deemed to be "granted in full" if no actual modification of any kind was authorized by the grant? In other words, assuming Buckley-Jaeger remains good law, its application to the present situation is undercut by the critical distinguishing fact that Behr's application was not "granted in full" in any logical sense. To the contrary, it was actually denied in full in every logical sense but one: the Commission granted it. That is how Section 1.110 came reluctantly into play. Secondly, the Letter Order raises the specter of hearings being demanded ad nausearn whenever a waiver request "happen[s] to be attached to an application." We first note in this regard that Behr's waiver request did not "happen to be attached to an application"- it was part and parcel of the application. Section 1.925 of the rules requires waiver requests associated with wireless licenses to be filed in an application form, and since Behr was requesting a change in the terms of his license itself, the waiver had to be embodied in an application. This was not some clever maneuver devised by Behr to get the opportunity for a hearing. More importantly, Section 1.110 of the rules (and its predecessor incarnation) has been on the books for 34 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 56 of 107 decades without spawning the spate of hearings feared by the Letter Order. Partial grant situations are rare, and most often an applicant is happy, or at least willing, to accept a partial or conditional grant rather than no grant at all and the prospect of a hearing. In addition, it is most common where the Commission is denying the entirety of the relief requested by an applicant to simply deny the application, which permits the normal appellate avenues through the Commission and the courts, rather than to grant the empty shell of an application as occurred here. For those unusual situations where the Commission does make a partial or conditional grant, Section 1.110 remains a perfectly valid avenue of relief. If the Commission does not want hearings to occur in those situations, Section 1.110 should be removed from the books. As it is, because non-compliance with Section 1.110 would stand as an absolute bar to Behr's right to review of the Commission's denial of his waiver request, he was compelled to comply with its procedures. No one faults applicants for filing applications for review when their applications are denied, although these filings probably bother the full Commission which has more important things to do. Similarly, Behr should not be faulted for exercising a right of review provided for, and here mandated by, the Commission's rules. All that said, Behr would just as soon avoid the expense, delay and trouble to all concerned of having a hearing. Given the unique circumstances presented here - both the unusual twelve-year delay in processing Behr's initial application and the unusual "grant" of an application while denying all portions of it- Behr would not object to the Bureau revisiting its 2003 action on the application at issue. It appears that the Bureau did not recognize that granting the application but denying all relief requested in the application would create the present procedural quandary. Behr renews its request that the Bureau simply grant the relief requested by Behr in the application. If it does not grant the requested modification, however, it should simply deny the application. Either action would put the application back on a normal track without having to involve an AU and the full panoply of hearing procedures. Respectfully submitted, LAWRENCE BEHR Is' Donald J. Evans Fletcher, Heald & Hildreth, PLC 1300 North 17th Street, 1 1th Floor Arlington, VA 22209 703-812-0400 His Attorney 35 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 57 of 107 February , 2007 36 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 58 of 107 37 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 59 of 107 38 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 60 of 107 ORIGINAL ANN BAVENDEP HARRY F. COLE ANNE GOODWIN GRUMP VINCENT J. CURTIS. JR. PAUL J. FELDMAN FRANK R. JAZZO EUGENE M. LAWSON, JR. MITCHELL LAZARUS SUSAN A. MARSHALL HARRY C. MARliN LEE 6. PETRO RAYMOND J. OUIANZON JAMES P. RILEY ALISON J. SHAPIRO KATHLEEN VICTORY JENNIFER DINE WAGNER LILIANA E. WARD HOWARD M. WEISS NOT ADMITTED IN VIRGINIA FLETCHER, HEALD & HILDRETH, P.L.C ATTORNEYS AT LAW 11th FLOOR, 1300 NORTH 17th STREET ARLINGTON, VIRGINIA 22209-3801 BY HAND DELIVERY Ms. Marlene H. Dortch Secretary / Federal Communication^ Commission 445 12 Street, SW Washington, DC 2005 OFFICE: (703) 812-0400 FAX: (703) 812-0486 www.fhhlaw.Com TIRED MEMBERS RICHARD HILDRETH GEORGE PETRUTSAS CONSULW4T FOR INTERNATIONAL AND INTERGOVERNMENTAL AFFAIRS SHELDON J. KRYS U. S. AMBASSADOR I'*I.I OF COUNSEL EDWARD A. cAINE DONALD J. EVANS FRANCISCO R. MONTERO EDWARD S. O'NEiLL' ROBERT M. GURSS WRrTERs DIRECT 703-812-0430 evatlsl'ofhlllaw.cOrn December 17, 2003 RECEIVED DEC 1 7 2003 FWERAI. COMMUNICATIONS C0MMISSI0I OFFICE OF THE SECRETARY Re: File No. 0001332167 Lawrence Behr Dear Ms. Dortch' On November 17, 2003, the Wireless Bureau granted the above application but denied the waiver request contained in the application. Under the provisions of Section 1.110 of the Commission's rules, Mr. Behr hereby rejects the grant as made. Please vacate the original action and set the application for hearing as required by the rule. Respectfully submitted, LAWRENCE V. BEHR Donald J. vans His Attorney DJB:deb 39 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 61 of 107 Federal Communications Commission 1270 Fairfield Road Gettysburg, PA 17325-7245 NOV 1 2 2003 in Reply Refer To: 7110-18 Donald J. Evans, Esquire Fletcher, Heald & J-Iildreth 1300 N. 17th St. Arlington, VA 22209 Dear Mr. Evans: This letter responds to the Petition for Waiver of Rule 90.725 that was filed on June 2, 2003 along with the application with FCC file number 0001332167. The application and waiver are filed on behalf of your client Lawrence Behr (Behr). The request seeks to waive the construction requirements for Behr's Phase 1 220 MHz license with call sign WPWR222. Specifically, Behr is requesting a 5 year 1/3 population coverage! 10 year 2/3 population coverage construction schedule identical to the one used for economic area licensees under Rule 90.767. For the reasons stated below, Behr's waiver request is denied. Behr filed an application for authorization in the 220-222 MHz band on May 1, 1991. The application was misplaced and was not granted until January 8, 2003' - long after all other 220 MHz phase I licenses were issued. Behr argues that the underlying purpose of the Phase I non-nationwide construction rule would not be served by its application in this particular case because the 220 MHz service ". .has moved to a different regulatory paradigm" created by the Commission's Third Report and Order, 6 CR 1169 (1997) (31d R&O) and its Report and Order on Reconsideration, 12 CR 193, 218-19 (1998) (Recon). Behr presumes that the Commission did not make the construction requirements for Phase I non-nationwide licensees equivalent to the construction requirements for phase II non-nationwide licensees in the R&O or Recon because it assumed that all phase 1 non-nationwide licenses were constructed2. We disagree. in the Recon at paragraphs 150 and 151, the Commission specifically addressed Phase I versus Phase II construction requirements in the nationwide context and clarified that the Phase II nationwide construction requirements apply only to Phase II nationwide licensees. Accordingly, Phase I nationwide are required to construct their licenses pursuant to their original construction deadlines. Although the Recon does not specifically address construction requirements for non-nationwide licensees, the Commission's differing treatment of construction requirements of Phase I and Phase II nationwide licensees shows that there is no presumption that Phase II licensing would create an inherent need to change the See Order, DA 02-2429, released September 30, 2002.2 See waiver at top of page 4. 40 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 62 of 107 Donald J. Evans, Esquire construction requirement for Phase I licensees (nationwide or non-nationwide) in order create regulatory parity. The reason the Commission moved to provide flexibility for Phase [licensees to relocate is because it recognized that licensed sites may become unusable for a variety of reasons3 - not because, as Behr suggests, it was trying to apply regulatory parity between "similarly situated" Phase 1 and Phase II licensees4. Behr's argument that the license for its station is complex and similarly situated with geographic area licenses is incorrect. First there is the matter of coverage area. Even though phase I licensees were given the flexibility to combine sites into a single geographic area for administrative convenience5, phase I licensee service areas were not changed by the new regulations. Service in these areas may be provided by a single site unlike geographic areas which cover a much larger land area. Also, geographic area licenses are assigned a larger block of frequencies and are required to build around incumbent stations. Geographic area licenses, therefore, are inherently more complex with regard to construction issues. Behr does not show that its single site specific license is as equal'y complex to construct as a phase H license because of the regulatory changes that occurred while its application was pending. While indicating that he is evaluating sophisticated mobile data and internet access applications, Behr does not support his request for waiver with any evidence of how these applications would be deployed even during an extended Phase II type construction buildout. Further Behr does not show that its single site specific license warrants a construction schedule similar to geographic area licensees. For the above reasons and since Behr has not provided sufficient justification for its waiver request, it does not meet either prong of the waiver test. in Rule 1.925 arid its request for waiver of Rule 90.725 is hereby denied. Sincerely, LLWO2 Ronald B. Fuhrman Deputy Chief, Technical Analysis Section Commercial Wireless Division i.e. deconstruction of a towcr site, refI.isal of a site lessor to extend a lease, or introduction of incurable interference at a site. See Recon at paragraphs 95-106. If anything, the Commission was trying to give the phase I licensees a flexibility similar to what they would have enjoyed if there were no regulatory changes. It is important to note that combining such stations requires that the stations be constructed. See Recon at paragraph 103. 41 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 63 of 107 Reference Copy FCC 601 FCC Application for Wireless Telecommunications Bureau Approved by OMB Main Form Radio Service Authorization 3060 - 0798 See instructions for public burden estimate 1) Radio Service Code: 1a) Existing Radio Service Code: General Information 2) (Select only one) ( ) NE - New RO - Renewal Only AU - Administrative Update NT - Required Notifications MD - Modification RM - Renewal/Modification WD - Withdrawal of Application EX - Requests for Extension of Time AM - Amendment CA - Cancellation of License DU - Duplicate License RL – Registered Location/Link 3a) If this application is for a Developmental License, Demonstration License, or a Special Temporary Authorization (STA), enter the code and attach the required exhibit as described in the instructions. Otherwise enter ‘N’ (Not Applicable). ( )D M S N/A 3b) If this application is for Special Temporary Authority due to an emergency situation, enter ‘Y’; otherwise enter ‘N’. Refer to Rule 1.915 for an explanation of situations considered to be an emergency. ( )Yes No 4) If this application is for an Amendment or Withdrawal, enter the file number of the pending application currently on file with the FCC. File Number 5) If this application is for a Modification, Renewal Only, Renewal/Modification, Cancellation of License, Duplicate License, or Administrative Update, enter the call sign of the existing FCC license. If this is a request for Registered Location/Link, enter the FCC call sign assigned to the geographic license. Call Sign 6) If this application is for a New, Amendment, Renewal Only, or Renewal/Modification, enter the requested authorization expiration date (this item is optional). MM DD _______/_______ 7) Is this application “major” as defined in §1.929 of the Commission’s rules when read in conjunction with the applicable radio service rules found in Parts 22 and 90 of the Commission’s rules? (NOTE: This question only applies to certain site-specific applications. See the instructions for applicability and full text of §1.929). ( )Yes No 8) Are attachments being filed with this application? ( )Yes No Fees, Waivers, and Exemptions 9) Is the applicant exempt from FCC application fees? ( )Yes No 10) Is the applicant exempt from FCC regulatory fees? ( )Yes No 11a) Does this application include a request for a Waiver of the Commission’s rule(s)? If ‘Yes’, attach an exhibit providing rule number(s) and explaining circumstances. ( )Yes No 11b) If 11a is ‘Y’, enter the number of rule section(s) being waived. Number of Rule Section(s): _________ 12) Are the frequencies or parameters requested in this filing covered by grandfathered privileges, previously approved by waiver, or functionally integrated with an existing station? ( )Yes No QT MD N WPWR222 N Y N N Y 1 Y FCC 601 Main Form July 2005 Page 1 Submitted: 06/02/2003 at 14:00:10 File Number: 0001332167 Reference Copy Only. Do Not Mail to the FCC as an Application. 42 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 64 of 107 Reference Copy Applicant Information 13) FCC Registration Number (FRN): 14) Applicant/Licensee legal entity type: (Select One ) Individual Corporation Unincorporated Association Trust Government Entity Consortium General Partnership Limited Liability Company Limited Liability Partnership Limited Partnership Other (Description of Legal Entity) ______________________________________________________________ 15) If the licensee name is being updated, is the update a result from the sale (or transfer of control) of the license(s) to another party and for which proper Commission approval has not been received or proper notification not provided? ( )Yes No 16) First Name (if individual): MI: Last Name: Suffix: 17) Legal Entity Name (if other than individual): 18) Attention To: 19) P.O. Box: And/Or 20) Street Address: 21) City: 22) State: 23) Zip Code: 24) Telephone Number: 25) FAX: 26) E-Mail Address: 27) Demographics (Optional): Race: American Indian or Alaska Native Asian Black or African-American Native Hawaiian or Other Pacific Islander White Ethnicity: Hispanic or Latino Not Hispanic or Latino Gender: Male Female Real Party in Interest 28) Name of Real Party in Interest of Applicant (If different from applicant): 29) FCC Registration Number (FRN) of Real Party in Interest: Contact Information (If different from the applicant) 30) First Name: MI: Last Name: Suffix: 31) Company Name: 32) Attention To: 33) P.O. Box: And /Or 34) Street Address: 35) City: 36) State: 37) Zip Code: 38) Telephone Number: 39) FAX: 40) E-Mail Address: X LAWRENCE BEHR 3400 TUPPER DR GREENVILLE NC 27834 (919)757-0279 Donald J Evans Fletcher, Heald & Hildreth 1300 N. 17th St. Arlington VA 22209 (703)812-0430 (703)812-0486 evans@fhhlaw.com FCC 601 Main Form July 2005 Page 2 0003215548 43 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 65 of 107 Reference Copy Regulatory Status 41) This filing is for authorization to provide or use the following type(s) of radio service offering (enter all that apply): ( )Common Carrier ( )Non-Common Carrier ( )Private, internal communications ( )Broadcast Services ( )Band Manager Type of Radio Service 42) This filing is for authorization to provide the following type(s) of radio service (enter all that apply): ( )Fixed ( )Mobile ( )Radiolocation ( )Satellite (sound) ( )Broadcast Services 43) Interconnected Service? ( )Yes No Alien Ownership Questions 44) Is the applicant a foreign government or the representative of any foreign government? ( )Yes No 45) Is the applicant an alien or the representative of an alien? ( )Yes No 46) Is the applicant a corporation organized under the laws of any foreign government? ( )Yes No 47) Is the applicant a corporation of which more than one-fifth of the capital stock is owned of record or voted by aliens or their ( )Yes No representatives or by a foreign government or representative thereof or by any corporation organized under the laws of a foreign country? 48a) Is the applicant directly or indirectly controlled by any other corporation of which more than one-fourth of the capital stock ( )Yes No is owned of record or voted by aliens, their representatives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a fo eign country? 48b) If the answer to the above question is ‘Y’, has the applicant received a ruling(s) under Section 310(b)(4) of the ( )Yes No Communications Act with respect to the same radio service involved in this application? If the answer to 48b is ‘N’, attach to this application a date-stamped copy of a request for a foreign ownership ruling pursuant to Section 310(b)(4) of the Communications Act. Basic Qualification Questions 49) Has the applicant or any party to this application had any FCC station authorization, license or construction ( )Yes No permit revoked or had any application for an initial, modification or renewal of FCC station authorization, license, or construction permit denied by the Commission? 50) Has the applicant or any party to this application, or any party directly or indirectly controlling the applicant, ( )Yes No ever been convicted of a felony by any state or federal court? 51) Has any court finally adjudged the applicant or any party directly or indirectly controlling the applicant guilty of unlawfully ( )Yes No monopolizing or attempting unlawfully to monopolize radio communication, directly or indirectly, through control of manufacture or sale of radio apparatus, exclusive traffic arrangement, or any other means or unfair methods of competition? Aeronautical Advisory Station (Unicom) Certification 52) ( ) I certify that the station will be located on property of the airport to be served, and, in cases where the airport does not have a control tower, RCO, or FAA flight service station, that I have notified the owner of the airport and all aviation service organizations located at the airport within ten days prior to application. Broadband Radio Service and Educational Broadband Service Cable Cross-Ownership 53a) Will the requested facilities be used to provide multichannel video programming service? ( )Yes No 53b) If the answer to question 53a is yes, does applicant operate, control or have an attributable interest ( )Yes No (as defined in Section 27.1202 of the Commission’s Rules) in a cable television system whose franchise area is located within the geographic service area of the requested facilities? Note: If the answer to question 53b is ‘Y’, attach an exhibit explaining how the applicant complies with Section 27.1202 of the Commission’s Rules or justifying a waiver of that rule. If a waiver of the Commission Rule(s) is being requested, Item 11a must be answered ‘Y’. Broadband Radio Service and Educational Broadband Service (Part 27) 54) (For EBS only) Does the applicant comply with the programming requirements contained in Section 27.1203 ( )Yes No of the Commission’s Rules? Note: If the answer to item 54 is ‘N’, attach an exhibit explaining how the applicant complies with Section 27.1203 of the Commission’s Rules or justifying a waiver of that rule. If a waiver of the Commission Rule(s) is being requested, Item 11a must be answered ‘Y’. 55) (For BRS and EBS) Does the applicant comply with Sections 27.50, 27.55, and 27.1221 of the Commission’s Rules? ( )Yes No Note: If the answer to item 55 is ‘N’, attach an exhibit justifying a waiver of that rule(s). If a waiver of the Commission Rule(s) is being requested, Item 11a must be answered ‘Y’. X X Y N N N N N N N N FCC 601 Main Form July 2005 Page 3 44 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 66 of 107 Reference Copy General Certification Statements 1) The applicant waives any claim to the use of any particular frequency or of the electromagnetic spectrum as against the regulatory power of the United States because of the previous use of the same, whether by license or otherwise, and requests an authorization in accordance with this application. 2) The applicant certifies that grant of this application would not cause the applicant to be in violation of any pertinent cross-ownership or attribution rules.* *If the applicant has sought a waiver of any such rule in connection with this application, it may make this certification subject to the outcome of the waiver request. 3) The applicant certifies that all statements made in this application and in the exhibits, attachments, or documents incorporated by reference are material, are part of this application, and are true, complete, correct, and made in good faith. 4) The applicant certifies that neither the applicant nor any other party to the application is subject to a denial of Federal benefits pursuant to §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. This certification does not apply to applications filed in services exempted under §1.2002(c) of the rules, 47 CFR § 1.2002(c). See §1.2002(b) of the rules, 47 CFR § 1.2002(b), for the definition of "party to the application" as used in this certification. 5) The applicant certifies that it either (1) has current required ownership data on file with the Commission, (2) is filing updated ownership data simultaneously with this application, or (3) is not required to file ownership data under the Commission's rules. 6) The applicant certifies that the facilities, operations, and transmitters for which this authorization is hereby requested are either: (1) categorically excluded from routine environmental evaluation for RF exposure as set forth in 47 C.F.R. 1.1307(b); or, (2) have been found not to cause human exposure to levels of radiofrequency radiation in excess of the limits specified in 47 C.F.R. 1.1310 and 2.1093; or, (3) are the subject of one or more Environmental Assessments filed with the Commission. 7) The applicant certifies that it has reviewed the appropriate Commission rules defining eligibility to hold the requested license(s), and is eligible to hold the requested license(s). 8) The applicant certifies that it is not in default on any payment for Commission licenses and that it is not delinquent on any non-tax debt owed to any federal agency. Signature 56) Typed or Printed Name of Party Authorized to Sign First Name: MI: Last Name: Suffix: 57) Title: Signature: 58) Date: FAILURE TO SIGN THIS APPLICATION MAY RESULT IN DISMISSAL OF THE APPLICATION AND FORFEITURE OF ANY FEES PAID. Upon grant of this license application, the licensee may be subject to certain construction or coverage requirements. Failure to meet the construction or coverage requirements will result in termination of the license. Consult appropriate FCC regulations to determine the construction or coverage requirements that apply to the type of license requested in this application. WILLFUL FALSE STATEMENTS MADE ON THIS FORM OR ANY ATTACHMENTS ARE PUNISHABLE BY FINE AND/OR IMPRISONMENT (U.S. Code, Title 18, §1001) AND/OR REVOCATION OF ANY STATION LICENSE OR CONSTRUCTION PERMIT (U.S. Code, Title 47, §312(a)(1)), AND/OR FORFEITURE (U.S. Code, Title 47, §503). Lawrence V Behr Sole Proprietor Lawrence V Behr 06/02/2003 FCC 601 Main Form July 2005 Page 4 45 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 67 of 107 Reference Copy FCC 601 Wireless Telecommunications Bureau Schedule for Approved by OMB Schedule D Station Locations and Antenna Structures 3060 - 0798 See 601 Main Form Instructions for public burden estimate 1) Action Requested: ( ) Add Mod Del 2) Location Number: 3) Location Description: 4) Area of Operation Code: 5) Location Name: 6) FCC Antenna Structure Registration # or N/A (FAA Notification not Required): 7) Latitude (DD-MM-SS.S): NAD83 ( ) N or S 8) Longitude (DDD-MM-SS.S): NAD83 ( ) E or W 9) Street Address, Name of Landing Area, or Other Location Description: 10) City: 11) State: 12) County/Borough/Parish: 13) Elevation of Site AMSL (meters) (‘a’ in antenna structure example): 14) Overall Ht AGL Without Appurtenances (meters) (‘b’ in antenna structure example): 15) Overall Ht AGL With Appurtenances (meters) (‘c’ in antenna structure example): 16) Support Structure Type: 17) Location Number: (only for Area of Operation Code ‘A’) 18) Radius (km): 19) Airport Identifier: 20) Site Status: 21) Maximum Latitude (DD-MM-SS.S): NAD83 Use for rectangle only (Northwest corner) ( ) N or S 22) Maximum Longitude (DDD-MM-SS.S): NAD83 Use for rectangle only (Northwest corner) ( ) E or W 23) Do you propose to operate in an area that requires frequency coordination with Canada? ( ) Yes No 24) Description: (only for Area of Operation Code ‘O’) 25) Number of Units: ____Hand Held ____Mobile ____Temporary Fixed ___Aircraft ___Itinerant 26) Would a Commission grant of Authorization for this location be an action which may have a significant ( ) Yes No environmental effect? See Section 1.1307 of 47 CFR. If ‘Yes’, submit an environmental assessment as required by 47 CFR, Sections 1.1308 and 1.1311. 27a) If the site is located in one of the Quiet Zones listed in Item 27b of the Instructions, provide the date (mm/dd/yyyy) that the proper Quiet Zone entity was notified: ____________ 27b) Has the applicant obtained prior written consent from the proper Quiet Zone entity for the same technical parameters that are specified in this application? ( ) Yes No 28) Do you propose to operate in an area that requires frequency coordination with Mexico? ( ) Yes No N/A FCC 601 Schedule D July 2005 - Page 1 46 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 68 of 107 Reference Copy FCC 601 Technical Data Schedule for the Approved by OMB Schedule H Private Land Mobile and Land Mobile Broadcast Auxiliary 3060 - 0798 Radio Services (Parts 90 and 74) See 601 Main Form instructions for public burden estimate Eligibility 1) Rule Section: 2) Describe Activity: Frequency Coordinator Information (if not self-coordinated) 3) Frequency Coordination Number 4) Name of Frequency Coordinator 5) Telephone Number 6) Coordination Date 7) Has this application been successfully coordinated? ( )Yes/No Extended Implementation (Slow Growth) 8) Are you requesting a new or modified extended implementation plan? ( )Yes/No If ‘Yes’, attach an exhibit with a justification and a proposed station construction schedule. 90.703C APPLICANT PROPOSES TO PROVIDE ON A COMMERCIAL BASIS MOBILE RELAY STATIONS FOR USE OF ELIGIBLES UNDER SUBPARTS B C D AND E OF PART 90 Associated Call Signs (Attach additional sheets if required) 9) Broadcast Auxiliary Only 12) City and State of Parent Station Principal Community: 11) Radio Service of Parent Station: If there is an associated Parent Station, complete Items 10-12. 10) Facility Id of Parent Station: 13) If there is no associated parent station, this applicant is a: ( ) Broadcast Network Entity Television Cable Operator Motion Picture ProducerTelevision Producer 14) State of Primary Operation: Control Point(s) (Other than at the transmitter) (Attach additional sheets if required) 18) Telephone Number 17) Location Street Address, City or Town, County/Borough/Parish, State 15) Action A/M/D 16) Control Point Number FCC 601 - Schedule H July 2005 - Page 1 47 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 69 of 107 Reference Copy f r FCC 601 - Schedule H Antenna Information 22) AAT (meters) 21) Antenna Number 19) Action ( ) A/M/D 20) Location Number 27) Gain (dB) 26) Polarization 23) Antenna Ht. (meters) 25) Beamwidth (degrees) 24) Azimuth (degrees) 48 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 70 of 107 Reference Copy FCC 601 - Schedule H Frequency Information 31) Frequency (MHz) 30) Antenna Number 28) Action ( ) A/M/D 29) Location Number 37) Emission Designators 36) ERP (watts) 32) Station Class 35) Output Power (watts) 34) No. of Paging Receivers 33) No. of Units Existing (if Mod) 000220.08750000 1M 1 4K00J3E500.0005 100.000FB6C New Existing (if Mod) 000220.23750000 1M 1 4K00J3E500.0005 100.000FB6C New Existing (if Mod) 000220.38750000 1M 1 4K00J3E500.0005 100.000FB6C New Existing (if Mod) 000220.53750000 1M 1 4K00J3E500.0005 100.000FB6C New Existing (if Mod) 000220.68750000 1M 1 4K00J3E500.0005 100.000FB6C New 49 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 71 of 107 Attachment(s): Type Description Date Entered O Memorandum Opinion and Order FCC 14-207 12/18/2014 P Application for Review 06/19/2009 O Order on Reconsideration 05/27/2009 P Petition for Reconsideration of Action on Application 02/13/2007 L Denial of Petition for Hearing 01/31/2007 O Petition for Hearing 12/17/2003 L Waiver Denial Letter 11/12/2003 O Petition for Waiver of Outdated Build-out Timetable 05/23/2003 50 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 72 of 107 PETITIONFORWAIVEROF SECTION90.725OFTHECOMMISSION=SRULES LawrenceBehr(ABehr@),byhisattorneys,herebypetitionstheCommissiontowaive constructionrequirementssetforthinSection90.725oftherulesforPhaseI220MHz licensees.Aswillbesetforthbelow,Behr=s220MHzlicenseisintheuniqueposition ofhavingbeenmislaidbytheCommissionandthengrantedsometwelveyearsafterit wasoriginallyfiled.ThewaiverrequestsetforthbelowisintendedtoplacetheBehr licenseonanequalfootingwithothercurrent220MHzlicensees,takingintoaccount theevolutionoftheCommission=sruleswhichoccurredwhiletheBehrapplicationwas inastateofsuspendedanimation. I. BACKGROUND BehroriginallyfiledhisapplicationforstationWPWR222duringtheinitialfilingwindow fornon-nationwide220MHzapplicationsinMayof1991.Hisapplicationwasselected inthelotteryandhetimelyfiledaperfectingamendment.Hisapplicationapparently waslostbytheCommissionandwasdeemedtohavebeendismissed,althoughno orderspecificallytakingsuchactionwaseverissued.TheCommissionultimately discoveredandcorrectedthemistakebyanOrderissuedSeptember30,2002. LawrenceBehr ,DA02-2429,rel.Sept.30,2002.Induecoursethestaffprocessedthe applicationandgranteditonJanuary8,2003.Weassumethat 51 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 73 of 107 allotheroriginalPhaseIapplicationswereeitherconstructedorabandonedmanyyears ago.Hencetherearenoother220MHzlicenseesinBehr=ssituationnow,andthere willneverbeanyagain. UndertherulesapplicabletoPhaseIlicensees,Behrnowhas12monthsinwhichto completeconstructionoftheDenverstation.Thisrulewasadoptedin1990. 1Inthe interveningyears,however,the220MHzservicewentthroughalongprocessof evolution.First,theoriginal220MHzapplicantswereactuallygivenuntilAugust15, 1996,toconstructtheirsystems.SeeSection90.757(a)oftheCommission=srulesand SecondReportandOrder inPRDocket89-552 ,rel.Jan.26,1996.Whilethisextended constructionperiodwasaproductofmyriadcomplicationsinthe220MHzlicensing process,thefactremainsthattheoriginallicenseesinBehr=spositionweregivenmore thanfouryearstocompletetheirinitialbuild-out.OnlythebizarrecircumstanceofBehr =sapplicationhavingbeenlostpreventedhimfromsharingthisgenerousconstruction schedule. Second,theCommissioncreatedaPhaseIIcategoryof220MHzlicenseesin1997. 220MHzBandUsebyPrivateLandMobileRadioService(ThirdReportandOrder) ,6 CR1169(1997).InthatordertheCommissiondecidedtoapplytonew220MHz non-nationwidelicenseesthesamefive-andten-yearbuildoutbenchmarkswhichithad beenapplyingtoallotherfixedandmobileservicelicensees.Thesebenchmarks requirePhaseIInon-nationwidelicenseestobeservingone-thirdofthepopulationof theirserviceareawithinfiveyearsoftheirgrantdate,andtwo-thirdsofthatpopulation withintenyears.SeealsoSection90.767oftheCommission=srules.Thisapproachto systemconstructionwasspecificallymodeledonthe900 -2- 52 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 74 of 107 MHzSMRregulatoryscheme,butinfactoverthelastdecadethishasbeenthe Commission=spolicywithrespecttoallgeographically-definedlicenses. Indeed,theCommissiondistinguisheditsproposedtreatmentofPhaseII220MHz licenseesfromPhaseIlicenseesonthegroundsthatthelatterwereAauthorizedto operateonsinglebasestationatasinglesite.@ Useofthe220MHzBandbythe PrivateMobileRadioService ,11FCCRcd188,234(1995).In1995,thatactuallywas adistinguishingfactor:PhaseInon-nationwidelicensesauthorizedoperationonlyat onespecificsitewithspecifictechnicalparameters,whilePhaseIInon-nationwide licensesweregrantedonanEconomicArea(EA)orRegionalbasiswhichpermitted operationatmultiplesiteswithintheboundariesoftheirauthorizedterritories. In1998,thatdistinctiondisappeared.In Useof220MHzBandbythePrivateRadio Service,ReportandOrderonReconsideration ,12CR193,218-19(1998),the CommissiondecidedtoeffectivelyturnPhaseInon-nationwidelicensesintogeographic licenses.Undernewrule90.745,PhaseIlicenseesmayconstructasmanybase stationsastheywishwithintheconfinesoftheiroriginal38dBucontourandmay relocatetheirbasestationswithoutpriorapprovalfromtheCommission.Thiswasdone toprovideparitybetweenPhaseIlicenseesontheonehand,andPhaseIIandallother commercialPart90incumbentsontheother.ThisimportantstepforwardgavePhaseI licenseestheflexibilitytoconstructfacilitiesinthelocationsbestdesignedtoservetheir customers=needswithouthavingtoundergoalong,cumbersome,andunnecessary applicationandapprovalprocessattheCommission.However,havingbroughtPhaseI licenseesintothemodernregulatorymodelforthispurpose,theCommissionneglected torevisitthenowoutdatedandanomalous12-monthconstructionperiod -3- 53 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 75 of 107 whichstillappliedtothoselicensees.Indeed,itisprobablethatbythattime(1998), therewerenolongeranyPhaseInon-nationwidelicenseesextantwhohadnot completedtheirinitialbuild-outs.Hence,therewasnoneedtoAfix@theconstruction periodforacategoryoflicenseewhonoonethoughtwouldevenexist. Comes2003,andBehrawakenslikeRipVanWinkletofindhimselfina21 stcentury regulatoryschemeforallpurposesexceptthenowtotallyantiquatedandanomalous build-outperiod.Toeliminatethisuniqueanomaly,Behrrequeststhatthesame constructionrequirementswhichapplytonon-nationwidePhaseII220MHzlicensees( i.e.,'90.767)beappliedtohim. II. APPROPRIATESTANDARDFORWAIVER ThestandardforgrantingawaiveroftheCommission=srulesiswell-established.The Commission=swaiverrulesrequireawaiverproponenttodemonstrateeither(a)that theunderlyingpurposeoftherulewouldnotbeserved,orwouldbefrustratedbyits applicationinthisparticularcase,or(b)thattheuniquefactsandcircumstancesofthis particularcaserenderapplicationoftheruleinequitable,undulyburdensome,or otherwisecontrarytothepublicinterest,orthattheproponenthasnoreasonable alternative.47C.F.R.1.925.Behr=srequestmeetsbothtests. First,itisobviousthatthelicenseforstationWPWR222isacuriousthrowbacktothe 1990/1991erawhenthe220MHzservicewasfirstbeingconceived.Asaresultofa uniquesequenceofevents,BehrfindshimselfwithaPhaseIbuild-outperiodinaworld thathaslongsincemovedtoadifferentregulatoryparadigm.Themodernconstruction schemeenvisionsmaximalflexibilityforlicenseestobuildouttheirsystemona scheduleandatlocationswhich willbestmeettheircustomers=needs.Thisbroadflexibilityisboundedonlybythenow -4- 54 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 76 of 107 customaryfive-yearandten-yearbenchmarksnecessarytoensurethatthespectrum doesnotliefallowforextendedperiodsoftime.Asnotedabove,theFCCeffectively anddeliberatelyconvertedPhaseIlicensestothesamegeographicfootingasregional andEA220MHzlicenseswhenitauthorizedAapproval-less@constructionofmultiple siteswithinaPhaseIlicensee=sdefinedlicenseboundary.Grantofthiswaiverwillput Behronequalfootingwiththeothersimilarlysituatedlicenseesnotonlyinthe220MHz servicebutinvirtuallyallothercommercialservicesregulatedbytheCommission. OncePhaseIlicenseesbecameuntetheredfromthesingle-site/singlebasestation model,thetwelve-monthconstructionperiodapplicabletothatmodelnolongermade sense.2YetBehrisconstrainedbypressuretobuildoutinaccordancewithan outmodedregulatoryconstraintwhichhasotherwisebeenabandonedforsimilarly situatedlicensees. Ausefulcomparisonhereiscertaincellularradiolicenseapplicationswhichwereacted onbytheWirelessBureauin2000.Threeapplicationswhichhadoriginallybeenfiled in1988and1989,afterfollowingatwistedpathfromdismissaltocourtappealsto reinstatementbyCongressionalfiat,wereeventuallyprocessedbytheCommissionin early2000.Technically,theseapplicationswererequiredtoincludethefinancial qualificationdemonstrationwhichwasacomponentofpre-1990cellularapplicationsbut whichhadlongsincebeenabandonedforlatercellularfilings.TheCommission recognizedthattherewasnopurposeinapplyinganoutmodedruletoapplications which,byhappenstance,hadre-emergedassurvivorsofthatearlierregulatory regime.Itaccordinglyandsummarilywaivedtherulethatrequiredfinancial commitmentstobesubmittedaspartofthecellularlong-formapplication. 3This -5- 55 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 77 of 107 practicalcommonsenseapproachtodealingwithdecade-oldapplicationsshouldapply hereaswell. Inthemonthssincehislicensewasgranted,Behrhasbeenexploringthe220MHz marketplaceinDenver.Itisfardifferentthananythingheenvisionedin1991,when conventionalmobilevoiceusagewasexpectedtobetheprimaryapplication.Heisnow evaluatingsophisticatedmobiledataandinternetaccessapplications,bothofwhichwill requiredevelopmentbyequipmentmanufacturers.Inaddition,theelectromagnetic environmentinDenverisobviouslymorecomplicatedthanitwasin1991,with entrenchedincumbentstodealwith.Moreover,sitingissuesinrecentyearshave becomemoredifficultthantheyoncewere.Thus,whileBehrobviouslyhopesand planstoputStationWPWR222toworkassoonaspossible,hecannotbeblindtothe realitieswhichcandelaydevelopmentin2003.Thegrantofthewaiverwillaffordhim thesameflexibilitytoworkthroughdeploymentissuesthatallothercontemporary licenseesnowenjoy. III. CONCLUSION Basedontheforegoing,itisapparentthattheunderlyingpurposeofthe12-monthbuild- outperiodprescribedbySection90.725wouldnotbeservedhere,but,rather,thatthe trulyuniquefactsandcircumstancesofthisparticularcaserenderapplicationofthat rulenotonlyburdensomebutinequitableandcontrarytothepublicinterest.The Commissionshouldallow -6- 56 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 78 of 107 Behrthesamelatitudethatitgivesallothercurrent220MHzlicenseestobuildouttheir systemsinaflexiblemanner. 1Theoriginalrulesspecifiedaneight-monthconstructionperiod.Thiswaslater extendedtotwelvemonths. 2Ofcourse,Behrwasnotinapositiontoraisetheseissuesin1995or1998sincethe Commissionwasstillyearsawayfromacknowledgingthathisapplicationevenexisted. 3SeeApplicationofGreatWesternCellularPartners,LLC;MonroeTelephoneServices, LLC,andFutureWavePartners,LLC,FileNos.10269CLP88,10625CLP89, 10810CLP89. -7- 57 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 79 of 107 58 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 80 of 107 59 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 81 of 107 60 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 82 of 107 61 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 83 of 107 I fl_I. LJ,_II I . S' _ Federal Communications Commission 1270 Fairfield Road Gettysburg. PA 17325-7245 XIJ 01997 Donald I. Evans, Esquire Evans & Sill, P.C. 1627 Eye Street, NW. Washington, DC 20006 Dear Mr. Evans; In Reply Refer To 7110-18 This letter replies to the October 25, 1996 "Request for Reconsideration" of our October 18, 1996 letter. Specifically, you request that the application submitted by your client, Lawrence Behr (Behr) with FCC file number 983133 be returned to pending status for processing. Beb.r's application was disposed of by the Commission's Order released July 21, 1995 which we enclosed with our October 18, 1996 letter, Behr' s request for reconsideration of our October 18, 1996 letter is moot since the letter had no affect on Behr's application, file number 983133, It was the CommissiQn's Order released on July 21, 1995 which disposed of Bebr's application. Since Behr's August 12, 1996 and October 25, 1996 letters regarding this issue are not timely', and since the proposed frequencies are no longer available at the proposed location, Behr's request for reconsideration is hereby DENIED. Sincerely, Po&t-It Fax Note 7671 cc ( g Te'Fishe1 Depu Chief, Licensing and Technical Analysis Branch Commercial Wireless Division °6rç 1&I - a °t- 2(Z Behr's request for reconsideration is received more than one year after the Order which disposed of its application was released. Timely filings are to be submitted within 30 days of the date of the Commission's action, 62 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 84 of 107 DONALD U. EVANS i WILLIAM J. SILL THOMAS L. JONES WILLIAM M. BARNARD ROBERT M. WINTERINGHAM JILL N. CANFIELD OF COUNSEL EVANS & SILL, P.C. ATTORNEYS AT LAW 627 EYE STREET, NW. SUITE 810 WASHINGTON. DC. 20006 TELEPHONE 12021 293-0700 TELECOPIER 202)659-5409 E-MAIL: mesaccess.digex.net October 25, 1996 Mr. Michael Regiec Federal Communications Commission 1270 Fairfield Road Gettysburg, Pennsylvania 17325-7245 Attention: Mr. Gary Devlin In re: Application of Lawrence Behr File No. 983133 Dear Mike: ALSO ADMITTED: MD., PA. ADMITTED VA. ONLY "ADMITTED N.Y. ONLY Thank you for your letter of October 18, 1996 (copy attached) regarding a 220 MHz application of Lawrence Behr, The reason we are perplexed is that the application was not "returned for additional information on March 23, 1993." It was returned on January 28, 1993. (See attachment). The application with the requested information was then re-submitted on March 23, 1993 -- well within the 60 day period established by Rule 90.141. See FCC Date Stamp on page 2 of the application). Mr. Behr never received any indication that his application had been re-returned or not accepted or dismissed. Rather, it appeared to be in the exact same category as two other applications which he re-submitted and which were duly granted. When an authorization was not received by late last year, we attempted to check through the FCC's data bases and through inquiries to the FCC staff as to what might have become of the application. It was the unsuccessful exhaustion of these efforts which led me to write to you last August. It appears that Mr. Behr's application was timely and properly re-submitted to the Commission within the procedures established by the Commission. so far as we can tell, the Commission has never acted on the application. Perhaps it has 63 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 85 of 107 EVANS & SILL. PVC. Mr.Michael Regiec October 25, 1996 Page 2 somehow fallen through a crack. But Mr. Behr should not have to forfeit a valuable license because the application seems to have gotten lost. It is not entirely clear what the appropriate procedure is here since the Commission has never acted on Mr. Behr's re- submitted application, yet you appear to believe that it is no longer pending. To the extent your letter indicates that Mr. Behr's application is no longer pending, Mr. Behr requests reconsideration of that decision. Please call me when you have received this and perhaps we can figure out a way to resolve this matter. Yoursvery truly, Donald J. Evans- DJE/sls Enclosures 64 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 86 of 107 Federal Communications Commission 1270 Fairfield Road Gettysburg, PA 17325-7245 In Reply Refer To: OCT18 199 7110-18 Donald J. Evans, Esquire Evans & Sill, P.C. 1627 Eye Street, N.W. Washington, DC 20006 Dear Mr. Evans: This letter replies to yourAugust 12, 1996 request for information concerning an application for a new 220-222 MHZ station in the QT radio service which was assigned FCC file number 983133 . The application was submitted by your client, Lawrence Behr (Behr) on May 1, 1991 and returned for additional information on March 23, 1993. Rule 90.141 provides applicants 60 days to resubmit an application which is returned and have it considered in its original place in the processing line. Otherwise, the application is treated as a new request for the purpose of processing. According to Commission records, Behr's application was never resubmitted. Consequently, Behr's application, file number 983133, is no longer pending. Further, due to the freeze1 on filing applications for new stations in the 220 MHz band, Behr's application can not now be considered as a new filing. Please be advised that applicants were alerted to the completion of processing for applications in the 220-222 MHz band by a Commission Order released July 21, 1995. The Order (copy enclosed) which announced the Disposition of Non-Nationwide 220-222 MHz Applications indicated that the Commission acted upon all applications received from May 1 through May 23, 1991. I trust this replies fully to your inquiry. If, however, you have additional questions regarding thismatter, you may contact Mr. Gary Devlin, a Land Mobile Branch engineer at (717) 338-2618. Sincerely, 41JJ/ Michael J. Regiec Deputy Chief, Land Mobile Branch Enclosures See enclosed copy of Order DA 91-647 adopted May 24, 1991 and released May 24, 1991. 65 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 87 of 107 FEDERAL COMMuNICATIONS COMMISSION 12Th11RF!ELD ROAD GETTYSBURG, PA 17325-7245 ----------- APPLICATION RETURN NOTICE FOR THE PRIVATE LAND MOBILE RADIO SERVICES Lawrence Behr ':;.;210 W. '4th St. ''' ' ' DATE •' ,.eenvifle, 27835 Janua 28, 1993 e: :t: . ,-.-..,'-;' ,,., FILE NO. 983133-QT 1es INSTRUCTIONS: Your application for station authorization is returned for the reason(s) checked below. Complete or correct your application, re-sign and date your application in the space provided on the reverse side. Return this and all enclosures to the above address. See "NOTICE TO APPLICANT' on the reverse of this form. Your eligibility is unclear. Please provide a more detailed description of your activities and how radio will be used in connection with them. LI If you are requesting authority to acquire a station presently licensed to another person or entity, you should check 'Assignment of Authorization in item 32 Complete the application giving all information pertaining to the new licensee (including eligibility showing) and include a completed FCC Form 1046, Assignment of Authorization, or a similar declaration signed by the present licensee, with your application. Please advise if the Control you show in item 1 8 is a Control Station or Control Point For Control Stations, complete items 1 through 11 (except 7), 14 through 17, and 26 through 29. If the Control Station complies with the 20 ft criterion as defined in Rule Section 90.1 19(a)(2Xii), complete only items 1 through 5. Evidence of frequency coordination is required for stations not meeting the 20 ft rule. You MUST resubmit this application through your frequency coordinator if you are requesting the licensing of a new station, modifying an existing licensed station, or if you are making ANY CHANGE to information in items 1 through 25 which has previously been coordinated. See Rule Sections 90.135 and 90.175. FAILURE TO DO SO COULD RESULT IN DISMISSAL OF YOUR APPLICATION AND FORFEITURE OF ANY FEE(S) PAID. Failure to resubmit your application in a timely manner as explained on the reverse of this form will also result in loss of any previously paid fee(s). Your application is being returned because it did not include frequency coordination as required by Rule Section 90.175. It is recommended that you contact the frequency coordinator in advance to determine if payment of a coordination fee is necessary. Such fees are separate and distinct from any fee charged by the Commission. Please include this Return Notice with your submission to the frequency coordinator to indicate that any necessary Commission fee have been paid. Failure to resubmit your application in a timely manner as explained on the reverse of this form will result in loss of any previously paid fee(s). LI Item(s) ____________________________________________________________ should be completed or corrected. xJ OTHER: Mobiles to be operating with the system need to be shown on the application. Complete iterrs 2 thru 5, 12 and 13. 4. ,--. - . '. . - FCC 1034G - SEE REVERSE JANUARY 199166 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 88 of 107 ANTWOTlCE:ALLappUcantsMUSflnciudo , - IviubiLt HAUJO SERVICES; IUUiI% At 010 I l'i Ut h'.J'_''II RJI1, flDIUI Iti IIIC --' -- • Federal Cornrnunlcaons Comnsslon, Gett\ ) COMMISSION USEONLY: 098 ci;" 2t;n'" or ' missten 5uW,t 6. . mu Afll.fl • ',, 12. Numberof Mobiles • flenna ''t ' 'I B C,, .Cf.si ,, ,t.(MHz) y etegory:Units I D.slgnatoq ' Pew,; ClIP. ' AA.T. Elevation 'tbTip Lalitud, TJ3J. 5__ 41QJ3E 1OL 50Th 110' 535111 Lbt tfl_s7 47 237g Mo. 400 4FCOJ3E ________ 50 ___ __ ____ __ . _ w ; too- - ________ ____ _____ ____ __ ___ __ __________ • Portable ________ _____ _____ _____ ____ __________ __________ • Aircraft _________ _____ _____ ____________ Marine ___________ 'Pagers . 13. AreaefOpeatIgnte,Mjies _______ __________________ - , Tampon orltinerantSlatlon. tio'- i( "ft14 rndluaofstationA, miles _________________ _______ __________________ or). NJA____,_mllaa radlug of codrôtnatea: L___________________ et. ____________________ Long, C '•ouny St t_____________________ a e ____________________ StattonAddrsseorGeograph(cLocation 15. CIty 16. County - 17. St. If not, please check ONE: 200 VINE STREET DENVER DENVER -c-o- Countywide ______ o Statewide ___________ 0- Nationwide __________ D 'Other • ; ation of Primary Control point (include telephone number) and location of all Radio Control Ions with antenna under 20 ft GMRS ONLY Li t il t l ti " ' 19. Freq. Advlaory Comm. No: // A 20. Radio Service: QT. : s ema con ro ela on iocations and FB/V wed by ama)) baae idcat)ona with antennae under 20 ft. (See Instructions.) 21. ApplIcant/Licenaee Name (Sea Instructions): 210 W.4TH'STREET ; ; ; ' ; LAWRENCE BEHR ' ',:,:''.:,".':,' '0 GREENVILLE, NC 27835 ' 22. MailIng Addreea (Number& Street, P.O. Box or RI. No.): ,, ATTN: .''",' (919) 757-0279 ADDRESS210 W 4TH STREET 23. City 24. Stole 25, 'ZiP Code ___________________________ GREENVILLE TC 27835'Wilt antenna be mounted on. 27, Provide description of the Structure on whidh your antenna (amounted and the height 28. Give the name of the nearest aircratt landing area, end the structure with an existing antenna? above ground to the top of the atructure. (Ste antenna figures I .3 ott reverse for distance and direction to the neareat runway. it yea, give Call aign end radio sampica.) service of existing licensee, ' as Cat) Sign SIe - Structure 'P,rpe Structure Height Above Ground Aircraft Landing Area Name , Direction A BUILDING 110' STABLETON 10 NE B C 0 E ___ F N ___ sa notice of construction or siteration been filed with the FAA? it yes, give the date fiied, the name under which fund, _____ 30,Appiicant Ciasaitication: (, jJ )/tdividuat 0 Partnership and the FAA office where filed. , 0 Association 0 Corporatio Govt. Entity ts Date Fund Name Under Which Filed FAA Office Where Flied 3t. Eligibility (Doxcribe Activity): SUPPORT ;TRUCTURE HEIGHT NOT _____________________ APPLICANT PROPOSES TO PROVIDE ON INCREASF ) HENCE NO FAA APPROVAL A COMMERCIAL BASIS MOBILE RELAY AND NO 7 o60-1 REQUIRED ___________________ y STATIONS FOR US VF ELIGIBLES- J UNDER SUBPARTSB C D AND E OF- , , PART 90- _______________ 1 - cation le for (check one): ( i ew Station 9 33. Does appiication include the Complete a em nuie Section atlon 0 Assignment 0 RJQ1 lament 0 Renewal ' es 0 No 90 -O3 (c) * commission grant aiynor application be an action which may ' 4502 atth.as detined b Sectioni lti t i nm t l aIle Suppiementoi information for Trunked nd C'onventionai Systems 806.8241851-869 MHz and 896-901/93S00 MH frequency bands . ,y. gn cart env ro en a d Invlon.lloIe?ItynU.fl.wer ye., aubn,lt the .1st,, a. r,qlred a Indicate of Applicant: • '.0 e •. , , N 0 a) Independent 0 b) Commercial (SMRS entrepreneur) ification of it em(s) modified, if applica 0: 0 c) Community Repeater (Ow ;' I •, • 0 cl) SMAS user (Show SMRS licensee nat dcxii oign and allocate your mobflo ioadingi rthmr new slellon, list call tgnhsi ot eni.ting .talion(.) to be -I., I • - 1,rpeoleystem%(CheckOne) . " ---- 0 a) Conventional. Specify the number of mobile units lobe placed In operational the of grant: _____________________________ duet compieting the application form(s): • 0 b) Trunked. Specify the number of trunked channels requested: ____________________________________________________________ KEITH TAYLOR No, (202 ) 293-0700 , Frequency Band Requested: (CheckOne) 0 a) 851-869 MHz 0 b)935-940 MHz rto 'tvrmnia.t ATram I tc rnej, v. CERTIFiCATCt, t'.EAD CAREFULLY BEFORE SIGNING If it application Is tar a Land Mobile Service license, applicant ceniitiea theta current copy ci the reque.trd rodio service's ruin. mill be obtained, Contact the UnIted Stale. Gonernment Printing ottice, Washington, DC 20402 (2021 753.322a, 2) Applicant waives any claim in the use 01 any particular Irequency rngarrtiesa xl prior u.n by license or olh.rwiie, 3i Applicant will have unlimited acCe.s lull,, radio equipmeni and will Control acces, to ecciu,to ,,nauthn,izrd peraon., 4) tIeliher applicani nor any member ll,erenl l.a larnign government or repreneotaiive ihareoi, Si Appucani certitie. ihat all slalementa made in this application and attachments are true, Compiete, correct and made in good taith, 01 Applicant certilles ihai the signature is Ihat ol ihe individual, or parinrr, or ollice, or duly authorized empiuyee xl • corporallan, or oIl icer who l.a member elan unincorpor.ied a,,ociatlan,or appropriate elected or appointed otticiai on behall xi. governmental eniIi. • ••• WILLFUL FALSE STATEMENTS PA0E OH THIS FORM ARE PUNISHABLE BY FINE AND/Ott iMPRISONMENT. U.S. CODE TITLE 18, SECTiON loot. Typed/Printed Name' Telephone No: 0 I I9 57O279' ______________________________________ Si9rteture:"MUSTBEORiGtNA>"\'_,.,7.-' Date: 04/26/91 / _\ \,,__000/ (r', tFY2, 67 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 89 of 107 - LLAJ DI IIVALY ACT OF 1974 ' AND THE PAPERWORK REDUCTION ACT OF 1980 .• Sccti is 30i ,j3 ihd 308 of the Communic'itions Act of 1934 as 'imended (licensint, powers) authorized the FCC to request the information on this application 1 he purpose of the information is to dctermineyoureligibility for i license 1 he information will be used by FCCstaffto evaluate the application, to determine station location, to provide information for enforcement and rulemaking proceedings and to maintain a current inventory oflicc.nsees. No license can be granted unless all information reciucstcd is provided. Your reponsc is required to obtain this" .. authorization. . -;- 1iblic reporting burden for this collection of information is estimated to range from fifteen minutes to six hours per rèsponse,•including time for reviewing instructions searching existing data sources gathering and maintaining the d ita needed and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Federal Communications Commission, Office of Managing Director, Washington, DC 20554, and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Paperwork Reduction Project (3060-0128), Washing- ton, DC 20503. ........... ................... ................... ............. .. . ....................... ....... USE.IrHESAMPLEINFORMATIONSHOWNBELOWTOASSISTYOU WITh 'r'.ANSWr3R1NoITflMS 89AN1) 27 ON REVERSE SID • - ..,, •,•.. - ., -..... . . I i ttrc. i I r,gtir 2 I igure il ' 'L . Ground Moiinied . . Mounicd On An Pxisiing I Mountcd on Anoihcr Si' u_iurI,. 4 - ' ' I Antcnnn Siruciur 201t ., - l50ft. • '':' • fl loft fIØ ft J Jb c 50 ft b - . . .. .. . . 50 ft. = antenna a = height above ground to tip of proposed antenna (item 9) b = height above ground to top of supporting structure (item 27) c = ground elevation above mean sea level (item 8) I H For these figures, items 8, 9 and 27 would be completed as follows (See samples below): Item 8 Item 9 Item 27 Ground Elevation Figure #1 50 Figure #2 50 Figue #3 50 Antenna lleight To Tip 20 80 65 I -j 1.:,, :.: 1:I tUc 1 ;. I 4..-I . 1 i' •i Ci 'P1/c, 89,.., Structure Type Structure Height Above Ground Pole 10 Tower 150 Building . 40 I .. :s J nih Ii ill ill) iU nii oju! Juno! ppu oj agd 5!tl Sfl GPO: 1990 0 - 275-696 I, '. .' AINO Sfl ADNDV 'dOd .•. 68 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 90 of 107 10 FCC Red NO. is Federal Communications Commission Record DA 95-1559 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Disposition of Non-Nationwide 220-222 MHz Applications ORDER Adopted: July 10,1995; Released: July 21, 1995 By the Chief, Land Mobile Branch, Licensing Division: The Wireless Telecommunications Bureau has acted upon all applications for frequencies in the 220-222 MHz Band filed pursuant to PR Docket 89-552. The Bureau acted upon all applications submitted from Day 1 through Day 23 and granted all applications for which spectrum was available. The granted licenses are contained in the Commission's database. License records are available for review at the Wireless Telecommunications Bureau's Office of Operations - Gettysburg or this information may be obtained from International Transcription Service, the Commission's copy contractor. On-line public access to the database can also be obtained through Interactive Systems, Inc.. the Commission's database contractor. Inasmuch as no spectrum was available for the remainder of the ap plications, those applications are hereby Dismissed and will not be returned. FEDERAL COMMUNICATIONS COMMISSION Terry L. Fishel Chief. Land Mobile Branch 7747 69 USCA Case #15-1003 Docu ent #1540832 Filed: 03/04/2015 Page 91 of 107 PUBLIC NOTICE FEDERAL COMMUNICATIONS COMMISSION 1919 M STREET N.W. WASHINGTON, D.C. 20554 07\ 93-71 News media lnfonnation 202/832·5050. Recorded lsting of releases end taxts 202/832.0002. COMMISSION ANNOUNCES TENTATIVE SELECTEES FOR 220-222 MHZ PRIVATE LAND MOBILE "LOCAL" CHANNELS Januacy 26, 1993 On October 19, 1992, the Commission conducted a lottery for the purpose of rank ordering the applications for "local" 220-222 HHz private land mobile channels that were received on the first day such applications were accepted for filing, i.e., Hay 1, 1991. In accordance with the Commission's rules dealing with random selection procedures, 47 C.F.R. § 1.972, this Public Notice is issued to announce the tentative selectees for these channels. As indicated in 47 C.F.R. § 1.972(d), the Commission will grant the applications of those tentative selectees that are determined to be qualified to receive licenses under 47 C.F.R. Part 90 of the rules. The attached listing contains the tentative selectees for local licenses in the 220-222 HHz band: - FCC - 70 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 92 of 107 File# Tentative Selectee Filet Tentative Selectee 968767 ATCHISON TOPEKA AND SANTA FE RAILWAY COM 951686 BAY VENTURES 942392 ATELOG PARTNERS 951655 BAY VENTURES 964572 ATKIN, LOMAN E 951687 BAY VENTURES 972841 ATTAR, LYNN P 952189 BAY VENTURES 977576 ATTAR, MARZ 951633 BAY VENTURES 976508 ATTAR, MARZ 954592 BAY VENTURES 986088 AU, FRANCES K 0 987575 BAY VENTURES 953903 AUNGST, JAMES 954585 BAY VENTURES 974538 AVEDOVECH, MYER 987540 BAY VENTURES 968513 AXE, BRIAN L 987673 BAY VENTURES 931452 J I PARTNERSHIP 954589 BAY VENTURES 931253 J I PARTNERSHIP 951683 BAY VENTURES 931266 J I PARTNERSHIP 954587 BAY VENTURES 931251 J I PARTNERSHIP 987541 BAY VENTURES 931250 J I PARTNERSHIP 987574 BAY VENTURES 931775 J I PARTNERSHIP 952187 BAY VENTURES 931267 J I PARTNERSHIP 954586 BAY VENTURES 931275 J I PARTNERSHIP 952401 BAY VENTURES 931260 J I PARTNERSHIP 986439 BAY VENTURES 930830 J I PARTNERSHIP 987538 BAY VENTURES 931271 J I PARTNERSHIP 952186 BAY VENTURES 931276 J I PARTNERSHIP 987550 BAY VENTURES 931m J I PARTNERSHIP 987535 BAY VENTURES 931774 B J I PARTNERSHIP 987665 BAY VENTURES 931771 B J I PARTNERSHIP 987539 BAY VENTURES 931272 B J I PARTNERSHIP 951977 BAY VENTURES 930831 B J I PARTNERSHIP 987544 BAY VENTURES 931259 B J I PARTNERSHIP 987625 BAY VENTURES 931776 B J I PARTNERSHIP 987573 BAY VENTURES 931274 B J I PARTNERSHIP 987618 BAY VENTURES 931257 B J I PARTNERSHIP 954588 BAY VENTURES 931770 B J I PARTNERSHIP 951976 BAY VENTURES 933682 BADE, ROBERT 987533 BAY VENTURES 938589 BAGLEY, BRETT 987527 BAY VENTURES 938568 BAGLEY, ELIZABETH F 951979 BAY VENTURES 934676 BAGLEY, NANCY R 954004 BAY VENTURES 930289 BAGLEY, NICOLE L 952066 BAY VENTURES 968364 BAHNER, SPENCER L 952188 BAY VENTURES 968366 BAHNER, SPENCER L 986943 BAY VENTURES 978693 BALTIMORE GAS AND ELECTRIC COMPANY 987531 BAY VENTURES 986390 BALTIMORE GAS AND ELECTRIC COMPANY 987547 BAY VENTURES 983983 BALTZ, DAVID C 987671 BAY VENTURES 935336 BANAS, EDWARD J 971418 BOA PARTNERSHIP 984077 BANKER, CAROL 951521 BOA PARTNERSHIP , 966685 BARR, DAVID H 982136 BOA PARTNERSHIP,., 966648 BARR, DAVID H 982143 BOA PARTNERSHIP 975173 BARTELL, CHARLES B 951485 BOA PARTNERSHIP 985039 BARTELL, CHARLES B 971411 BOA PARTNERSHIP 985096 BARTELL, CHARLES B 971408 BOA PARTNERSHIP 932250 BARTO\ol I ROY 949015 BEAUCHEMIN, RAY 960573 BASSETT, JERRY 964271 BEAUCHEMIN, RAY 982252 BASTO, CHRISTOPHER B 932238 BEAVER, K L 982287 BASTO, CHRISTOPHER B 949517 BECKETT, NORMA 972468 BASTO, CHRISTOPHER B 966225 BECKETT I NORMA 972473 BASTO, CHRISTOPHER B 965997 BECKETT, NORMA 972469 BASTO, CHRISTOPHER B 946600 BECK\IITH JR, C G 982245 BASTO, CHRISTOPHER B 983133 BEHR, LAWRENCE 982244 BASTO, CHRISTOPHER B 978374 BEHR, LAWRENCE 972474 BASTO, CHRISTOPHER B 983134 BEHR, LAWRENCE 982249 BASTO, CHRISTOPHER B 930683 BELLA, JAMES R 964501 BATTISTINI, KEITH 972962 BENNINGFIELD, LEONA J 951647 BAY VENTURES 972959 BENNINGFIELD, LEONA J 986944 BAY VENTURES 973352 BERGHS, STEVEN 954594 BAY VENTURES 982831 BERMAN, LOUIS H 951637 BAY VENTURES 957256 BERMAN, LOUIS H 987667 BAY VENTURES 982829 BERMAN, LOUIS H 951699 BAY VENTURES 968535 BERNSTEIN, TAMARA C 987668 BAY VENTURES 972282 BERRIER, CHARLOTTE 986986 BAY VENTURES 972277 BERRIER, CHARLOTTE 954598 BAY VENTURES 981611 BERRIER, CHARLOTTE 987664 BAY VENTURES 982910 BERRIER, CHARLOTTE 987669 BAY VENTURES 981610 BERRIER, CHARLOTTE 951658 BAY VENTURES 981556 BERRIER, CHARLOTTE 987582 BAY VENTURES 981603 BERRIER, CHARLOTTE 71 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 93 of 107 47 C.F.R. § 1.110 Partial grants; rejection and designation for hearing. Where the Commission without a hearing grants any application in part, or with any privileges, terms, or conditions other than those requested, or subject to any interference that may result to a station if designated application or applica- tions are subsequently granted, the action of the Commission shall be considered as a grant of such application unless the applicant shall, within 30 days from the date on which such grant is made or from its effective date if a later date is specified, file with the Commission a written request rejecting the grant as made. Upon receipt of such request, the Commission will vacate its original action upon the application and set the application for hearing in the same manner as other appli- cations are set for hearing. 72 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 94 of 107 73 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 95 of 107 74 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 96 of 107 75 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 97 of 107 76 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 98 of 107 77 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 99 of 107 78 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 100 of 107 79 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 101 of 107 80 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 102 of 107 81 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 103 of 107 82 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 104 of 107 83 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 105 of 107 84 USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 106 of 107 No. 15-1003 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT LAWRENCE BEHR, APPELLANT, V. FEDERAL COMMUNICATIONS COMMISSION, APPELLEE. CERTIFICATE OF SERVICE I, C. Grey Pash, Jr., hereby certify that on March 4, 2015, I electronically filed the foregoing FCC Opposition To Motion For Summary Reversal with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Donald J. Evans Fletcher, Heald & Hildreth, PLC 1300 North 17th Street 11th Floor Arlington, VA 22209 Counsel for: Lawrence Behr /s/ C. Grey Pash, Jr. C. Grey Pash, Jr. Counsel Federal Communications Commission Washington, D.C. 20554 (202) 418-1751 (Telephone) (202) 418-2819 (Fax) USCA Case #15-1003 Document #1540832 Filed: 03/04/2015 Page 107 of 107