*Pages 1--4 from Microsoft Word - 7825.doc* Federal Communications Commission FCC 01- 102 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Applications of CGSA- MINNEAPOLIS, INC. For Private Carrier Paging On Frequency 929.6875 MHz ) ) ) ) ) ) ) ) ) File Nos. 680392- 399 680673- 678 680643- 646 680651- 672 MEMORANDUM OPINION AND ORDER Adopted: March 22, 2001 Released: March 29, 2001 By the Commission: 1. The Commission has before it an Application for Review filed by CGSA- Minneapolis, Inc. (CGSA) on November 8, 1999. CGSA seeks review of an order issued by the Policy and Rules Branch (Branch) of the Wireless Telecommunications Bureau’s Commercial Wireless Division, 1 which denied reconsideration of a decision by the former Land Mobile Branch (Land Mobile Branch) 2 dismissing the above- captioned applications for private carrier paging authorization on 929.6875 MHz (CGSA Applications). For the reasons discussed below, we affirm the Branch’s action and deny CGSA’s Application for Review. 2. CGSA states that, pursuant to section 90.175 of the Commission’s rules, it submitted the CGSA Applications for frequency coordination to the Commission- appointed frequency coordinator, the National Association of Business and Educational Radio, Inc. (NABER). 3 On September 7, 1994, 1 CGSA- Minneapolis, Inc., Order, 14 FCC Rcd. 17351 (Commercial Wireless Div. 1999) (Branch Order). The Branch Order, released on October 9, 1999 as DA 99- 2124, addresses the denial of the above- captioned FCC file numbers. CGSA’s Application for Review states that that it seeks review of DA 99- 2126, a different order issued on the same day that dismissed certain other 929 MHz applications filed by CGSA’s affiliate, Datafon, Inc. See Application for Review at 1, n. 1. Further, the Application for Review references filing dates and Commission action dates that apply to Datafon applications, not CGSA applications, and the signature block indicates that the Application for Review is submitted on behalf of Datafon. See CGSA Application for Review at 7. Notwithstanding these errors, we will treat CGSA’s Application for Review as seeking review of DA 99- 2124 because it references the above- captioned file numbers and DA 99- 2124 is the only order released October 8, 1999 that involved CGSA as a party. We further note that we are contemporaneously adopting an order addressing a separate Application for Review filed by the same counsel on behalf of Datafon against DA 99-2126. 2 The Land Mobile Branch was later merged into the Licensing and Technical Analysis Branch. 3 Application for Review at 1, 4. NABER has since become part of the Personal Communications Industry Association. 1 Federal Communications Commission FCC 01- 102 2 NABER filed the CGSA Applications with the Commission, but without the specific frequency recommendation required by our rules. Because the applications were not coordinated, the Land Mobile Branch dismissed the CGSA Applications on March 23, 1995. On April 24, 1995, CGSA filed a Petition for Reconsideration (Petition), in which it argued that the Commission should have retained CGSA’s applications in pending status until it resolved a pending waiver petition filed by a third party, Greenline Partners, Inc., that potentially affected the availability of 929.6875 MHz. 4 On reconsideration, the Branch affirmed that the CGSA Applications were defective and could not be processed without frequency coordination by NABER. 5 The Branch further determined that it had no obligation to hold the applications in pending status until CGSA was able to obtain frequency coordination. 6 Accordingly, the Branch denied CGSA’s Petition. 3. In its Application for Review, CGSA again asserts that its applications should not have been dismissed and should be reinstated. We hold that the Branch correctly affirmed the Land Mobile Branch’s decision and denied CGSA’s applications. Because of the existence of prior- filed applications seeking authority to operate on 929.6875 MHz, NABER was unable to recommend grant of CGSA’s applications to operate on this frequency. 7 Without the specific frequency recommendation required by the Commission’s rules, or an appropriate request for waiver of section 90.175, the Branch could not process the applications. 8 Contrary to CGSA’s assertion, the Branch was not required to hold the applications until CGSA could obtain necessary frequency coordination. 9 The processing rules in effect for the 929 MHz band at this time did not provide for placing applications on a “wait list,” and the Commission in fact had a policy against holding such applications while it processed earlier- filed applications. 10 4 At the time that NABER received the CGSA Applications, a waiver request filed by Greenline Partners, Inc. was pending with the Commission. Greenline’s waiver request sought nationwide exclusivity on the 929.6875 MHz frequency for a three- year time period without having to construct the requisite number of transmitters. In a separate order issued concurrently with the Branch Order, the Branch denied the waiver request and dismissed Greenline’s applications. Greenline Partners, Inc., 14 FCC Rcd. 17369 (Commercial Wireless Div. 1999) (Greenline Waiver Order). 5 Branch Order, 14 FCC Rcd. at 17351- 52, ¶ 2. 6 Id. at 17352, ¶ 2. 7 See Waste Management, Collection & Recycling, Inc., 16 Communications Reg. (P & F) 237 (1999) (denying Application for Review of Land Mobile Branch dismissal and finding that a frequency coordinator’s statement that it would have coordinated an application but for an earlier- filed and still pending application and waiver request did not constitute adequate frequency coordination). 8 See 47 C. F. R. § 90.129( a) (1994) (“ Each application received by the Commission must be accompanied by the applicable information listed below: (a) Evidence of frequency coordination as required by § 90.175.”); 47 CFR § 90.139( c) (“ Applications . . . will be considered defective and may be dismissed unless accompanied by a [waiver] request in accordance with § 90.151 of this part.”). CGSA did not request a waiver of the Commission’s frequency coordination requirements. 9 Frequency Coordination in the Private Land Mobile Radio Services, Report and Order, 103 F. C. C. 2d 1093, 1100, ¶ 14 (1986)( Frequency Coordination Order); id. at 1108, ¶ 29; see also Memorandum Opinion and Order, 16 Communications Reg. (P & F) at 240, ¶ 10 (rules require coordinator to make frequency recommendation that the Commission can adopt intact). 10 See, e. g., Valley County Water District, 14 FCC Rcd 18754, 18755, ¶ 4 (Pub. Safety & Private Wireless Div. 1999) (“[ T] he Commission does not maintain a wait list for the frequency in question.”); Memorandum Opinion (continued….) 2 Federal Communications Commission FCC 01- 102 3 4. CGSA concedes that its applications were subject to the frequency coordination requirement, but argues that the applications should have been treated as acceptable for filing based on the Commission’s 1986 Frequency Coordination Order, which allowed uncoordinated applications to be filed under some circumstances. 11 CGSA’s reliance on the Frequency Coordination Order is misplaced. In that proceeding, the Commission allowed uncoordinated applications to be forwarded to the Commission for review where an applicant sought to contest the coordinator’s recommendation to deny the applicant’s request for a specific frequency, but recommend grant of an alternate frequency. 12 In such instances, the applicant was required to submit a technical justification for the requested frequency, and the applicant’s submission and coordinator’s alternate recommendation were to be submitted to the Commission for evaluation and decision. 13 This procedure is irrelevant to CGSA’s applications because CGSA did not contest NABER’s decision not to recommend grant of CGSA’s applications on 929.6875 MHz. Instead, because the application could not be coordinated on that frequency, CGSA sought to have the Commission maintain the application in pending status indefinitely until the previously filed application for the frequency was resolved. Contrary to CGSA’s assertions, the Frequency Coordination Order does not require a policy of accepting and holding uncoordinated applications while earlier mutually exclusive applications are processed. 14 5. We find that the Land Mobile Branch properly dismissed the CGSA Applications as defective, and the Branch Order properly upheld that dismissal. 15 For the reasons stated above, we affirm the Branch’s decision, and deny CGSA’s Application for Review. (Continued from previous page) and Order, 16 Communications Reg. (P & F) at 240, ¶ 11 (“[ A] pplicants are not permitted to queue behind already- pending mutually exclusive applications.”); MGM Grand Hotel, Inc., 14 FCC Rcd 1784 (Pub. Safety & Private Wireless Div. 1998) (dismissing applications filed without coordination for frequencies that were associated with an ongoing Commission proceeding). 11 Application for Review at 4- 5. 12 See Frequency Coordination Order at ¶ 110. 13 Id. 14 In denying CGSA’s Petition, the Branch did not treat CGSA differently from similarly situated applicants. In the Greenline Waiver Order, the Commission explained that it was dismissing all applications forwarded by NABER that sought authorizations for transmitter sites on 929.6875 MHz because they failed to meet the Commission’s frequency coordination requirements. Greenline Waiver Order, 14 FCC Rcd at 17371, ¶ 7. CGSA fails to identify how the Branch’s actions toward it are inconsistent with the treatment of similarly situated requests. 15 See Always Answering Service, Inc., 15 FCC Rcd. 3243, 3244- 45, ¶ 5 (2000) (denying Application for Review of Branch decision dismissing applications submitted without requisite frequency coordination); 47 C. F. R. § 90.139( b) (“ Applications which are incomplete with respect to answers, supplementary statements, execution, or other matters of a formal character shall be deemed defective and may be dismissed.”) 3 Federal Communications Commission FCC 01- 102 4 6. Accordingly, IT IS ORDERED that, pursuant to section 4( i) of the Communications Act, as amended, 47 U. S. C. § 154( i), and section 1.115 of the Commission’s rules, 47 C. F. R. § 1.115, the Application for Review filed by CGSA- Minneapolis, Inc., on November 8, 1999 in the above- captioned matter is DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary 4