*Pages 1--5 from Microsoft Word - 11415.doc* Federal Communications Commission FCC 01- 245 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Applications of County of San Mateo, California To Modify Public Safety Land Mobile Radio Station WIG278 ) ) ) ) ) ) File Nos. A004251 and A007122 MEMORANDUM OPINION AND ORDER Adopted: August 24, 2001 Released: September 11, 2001 By the Commission: I. INTRODUCTION 1. Before us is a Petition for Reconsideration (Petition) filed by Champion Communications Services, Inc. (Champion) on February 7, 2001. 1 Champion seeks partial reconsideration of the January 8, 2001 Order on Review and Reconsideration which addressed an Application for Review filed by the County of San Mateo, California (San Mateo or the County). 2 Specifically, Champion seeks reconsideration of the Commission’s decision to reinstate and grant San Mateo’s Petition for Reconsideration as it pertains to frequency pair 489/ 492. 4875 MHz in the San Francisco area for Call Sign WIG278. 3 For the reasons provided herein, we deny Champion’s Petition. II. BACKGROUND 2. As an initial matter, we think it is important to describe licensing processing to the extent it is relevant here. Pursuant to the Commission’s rules, certain applications must be accompanied by frequency coordination. 4 To facilitate compliance with this rule, the applicant must provide the necessary technical data to the relevant certified frequency coordinator. The frequency coordinator then files the application with the Commission on behalf of the applicant. When an application is pending with the Commission, frequency coordinators should not file another application seeking the same frequency in the same geographic area. 5 We generally rely on the frequency coordinator’s recommendation when reviewing an application, unless a third party submits evidence that the coordination was improper. Once an application has been reviewed and found in compliance with the Commission’s rules, the application is granted. 1 Champion Communications Services, Inc. Petition for Reconsideration (filed Feb. 7, 2001) (Petition). 2 County of San Mateo, California, Order on Review and Reconsideration, 16 FCC Rcd 4291 (2001) (reinstating San Mateo’s Petition and granting authorizations and modifications related to frequency pairs 489/ 492. 4875 MHz and 483/ 486.4875 MHz in the San Francisco area) (Order on Review and Reconsideration). 3 Petition at 2. 4 47 C. F. R. § 90. 175. 5 Frequency Coordination in the Private Land Mobile Radio Services, Report and Order, PR Docket No. 83- 737, 103 FCC 2d 1093 (1986). 1 Federal Communications Commission FCC 01- 245 2 3. On December 26, 1996, Champion filed an application 6 for a new license to operate on frequency pair 489/ 492. 4875 MHz, a 470- 512 MHz band channel in the San Francisco/ Oakland area. 7 On April 18, 1997, San Mateo filed an application to modify its license for Call Sign WIG278 to add frequency pair 489/ 492. 4875 MHz at two sites also in the San Francisco area. 8 This modification application was granted on May 21, 1997. 9 On September 16, 1997, San Mateo filed a second modification application to add the same frequency pair to a third site. 10 This modification application was granted on November 6, 1997. 11 4. On April 24, 1998, more than five months after it granted the County’s final modification application, the Branch set aside its actions granting San Mateo’s three modification applications. 12 The Branch stated that it had been notified by the Industrial Telecommunications Association (ITA) on November 5, 1997, that the Branch had processed San Mateo’s first modification application ahead of the application for the same frequency pair filed on December 26, 1996, by Champion, in violation of the Commission’s rules and procedures. 13 The Branch received such notification more than five months after it granted the first modification application, and Champion had not petitioned for reconsideration of the Branch’s grants of the County’s modification applications. On May 26, 1998, the County timely filed a petition for reconsideration of the Branch’s April 24, 1998 action. 5. While San Mateo’s reconsideration petition was pending, it filed an application and waiver request pursuant to Section 337 of the Communications Act 14 to add to its system thirteen frequency pairs from the 470- 512 MHz band. 15 The Wireless Telecommunications Bureau (Bureau) granted this waiver request and application, and, because it believed that this grant obviated San Mateo’s need for other 470- 512 MHz band channels, dismissed San Mateo’s petition as moot. 16 On December 13, 1999, San Mateo filed an application for review seeking partial review of the Bureau’s Memorandum Opinion and Order dismissing its petition, and seeking review of the Branch’s decision to rescind its grant of the modification applications. 17 On January 8, 2001, the Commission determined that there was no necessary relationship between the frequencies sought in San Mateo’s Section 337 waiver request and the frequencies at issue in the San Mateo petition, so it reinstated the dismissed reconsideration petition. 18 6 FCC File No. D065490. 7 See 47 C. F. R. § 90. 311( a). 8 FCC File No. A004251. 9 See Letter from Michael J. Regiec, Acting Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division to Steve Dupre, Radio Systems Supervisor, County of San Mateo, at 1 (Apr. 24, 1998) (Branch Letter). 10 FCC File No. A007122. 11 See Branch Letter at 1. A third modification application to add another frequency pair, 483/ 486. 4875 MHz at a fourth site was filed by San Mateo on October 29, 1997 and granted on November 17, 1997. See FCC File No. A009109. Champion’s Petition does not challenge the grant of this third modification application. 12 Branch Letter at 1. On July 24, 1998, after the set- aside action by the Branch, Champion’s application was returned for additional information. However, Champion never re- filed its application. 13 Id. 14 47 U. S. C. § 337. 15 FCC File No. 0000013680 and San Mateo Waiver Request (filed Jan. 28, 1999). 16 County of San Mateo, California, Memorandum Opinion and Order, 14 FCC Rcd 19002, 19009 ¶ 16 (WTB 1999) (MO& O). 17 San Mateo Application for Review (filed Dec. 13, 1999). 18 Order on Review and Reconsideration, 16 FCC Rcd at 4294 ¶ 7. 2 Federal Communications Commission FCC 01- 245 3 The Commission then granted the petition, thereby reversing the Branch’s set- aside of the grants of San Mateo’s modification applications. The Commission found that the Branch’s action was invalid because Section 1.113 of the Commission’s Rules 19 provides that action taken pursuant to delegated authority may be set aside sua sponte only within thirty days. 20 6. On February 7, 2001, Champion filed the instant Petition for Reconsideration of the Commission’s January 8, 2001, decision. San Mateo filed an Opposition to the Petition for Reconsideration, 21 and Champion filed a Reply to the Opposition to Petition for Reconsideration. 22 III. DISCUSSION 7. Section 1.113( a) of the Commission’s rules provides, “Within 30 days after public notice has been given of any action taken pursuant to delegated authority, the person, panel or board taking the action may modify or set it aside on its own motion.” 23 Champion argues that notwithstanding Section 1.113, the Branch was permitted to reverse itself even after the passage of thirty days to remedy an inadvertent error. 24 Champion characterizes the grants of San Mateo’s modification applications as such errors, and contends that this exception applies here. 25 San Mateo argues in response that this case does not involve a ministerial or clerical error that would allow rescission after more than thirty days. 26 We have reviewed the cases cited by the parties, and other authority, and conclude that the ministerial error doctrine does not extend to the present matter. Consequently, we deny Champion’s Petition and affirm the Commission’s decision granting San Mateo’s petition for reconsideration of the Branch’s set- aside of the grant of its modification applications. 8. As the Commission recently stated, “Administrative agencies have the authority to correct inadvertent, ministerial errors.” 27 This authority to revisit final actions is limited. It extends only to the correction of clerical or administrative errors that underlie or occur in the process of taking an action, such as a mathematical miscalculation, 28 or a license that omits 29 or misstates 30 a frequency, or a document that omits an intended party 31 or provision. 32 The taking of an erroneous action, itself, is not 19 47 C. F. R. § 1. 113. 20 Order on Review and Reconsideration, 16 FCC Rcd at 4294 ¶ 8. 21 San Mateo Opposition to Petition for Reconsideration (filed Feb. 22, 2001) (Opposition). 22 Champion Reply to Opposition to Petition for Reconsideration (filed Mar. 5, 2001). 23 47 C. F. R. § 1. 113( a). 24 Petition at 2. 25 Id. at 8. 26 Opposition at 5. 27 Robert Fetterman d/ b/ a RF Communications, Memorandum Opinion and Order, FCC 01- 121, ¶ 5 (rel. Apr. 11, 2001) (Fetterman) (citing American Trucking Ass’n v. Frisco Transp. Co., 358 U. S. 133, 145- 46 (1958) (American Trucking); Chlorine Inst. v. OSHA, 613 F. 2d 120, 123 (5 th Cir.), cert. denied, 449 U. S. 826 (1980) (Chlorine Inst.)). 28 See ACS PCS LLC, Memorandum Opinion and Order, 13 FCC Rcd 23750, 23751 ¶ 1 (1998); see also, e. g., City of Long Beach v. Department of Energy, 754 F. 2d 379, 387 (Temp. Emer. Ct. App. 1985). 29 See Fetterman, ¶¶ 3- 5. 30 See Hazle- Tone Communications, Inc., Order, 13 FCC Rcd 1547, 1552 ¶ 11 (WTB 1997), aff’g John Gabriele, Letter, 12 FCC Rcd 2933 (WTB CWD 1997). 31 See Bell Atlantic- Pennsylvania, Inc., Order, 13 FCC Rcd 13415, 13416 ¶ 4 (WTB CWD PRB 1999) (Bell Atlantic); see also, e. g., Chicano Education and Manpower Servs. v. United States Dep’t of Labor, 909 F. 2d 1320, 1328 (9 th Cir. 1990). 3 Federal Communications Commission FCC 01- 245 4 generally a ministerial error that can be corrected after the 30- day period has elapsed under 47 C. F. R. § 1.113( a). 9. The cases discussed by the parties illustrate this distinction. In Theodore E. Sousa, the Review Board held that a radio station license may not be revoked solely upon the basis of licensee misconduct occurring entirely within a previous license term where the misconduct was officially known to the Commission prior to a grant of license renewal and the 30- day period for setting aside the grant had elapsed under 47 C. F. R. § 1. 113( a). 33 In Bell Atlantic, the Commercial Wireless Division intended to dismiss all pending mutually exclusive paging applications pursuant to a Commission decision to resolve mutually exclusive applications by competitive bidding. 34 The application with which a Bell Atlantic application was mutually exclusive was dismissed, but Bell Atlantic’s application was inadvertently omitted from the dismissal order, and the application was subsequently granted because it no longer appeared to be mutually exclusive. 35 The Bureau’s Commercial Wireless Division, citing the ministerial error doctrine, concluded that it had the authority to correct the ministerial error of omitting Bell Atlantic from the dismissal public notice, and therefore set aside the license grant. 36 10. As noted above, the decision to grant a license application generally is a discretionary, rather than ministerial, action. We conclude that the erroneous grant of an application can be corrected sua sponte more than thirty days after it becomes final only where the grant was premised upon or contains a ministerial error of the type discussed above. 37 We agree with San Mateo that no such “ministerial” or “clerical” error occurred in this matter. 38 Indeed, the Court of Appeals for the D. C. Circuit, in a case involving another administrative agency, stated that granting an application due to the “failure to engage in a comparative evaluation of competing applications,” as occurred here, is not the (... continued from previous page) 32 See American Trucking, 358 U. S. at 146. 33 Theodore E. Sousa, Decision, 71 FCC 2d 1330, 1331, 1334 ¶¶ 2, 7 (Rev. Bd. 1979) (in reaching its decision, the Review Board did not specifically address the ministerial error doctrine, but did note the strong public interest in a reasonable finality of Commission action) (Sousa). 34 Bell Atlantic, 14 FCC Rcd at 13416 ¶ 3 (citing Revision of Part 22 and Part 90 of the Commission’s Rules to Facilitate Future Development of Paging Systems, Second Report and Order and Further Notice of Proposed Rule Making, WT Docket No. 96- 18, 12 FCC Rcd 2732 (1997)). 35 Bell Atlantic, 14 FCC Rcd at 13416 ¶ 3. 36 Id. at 13416- 17 ¶ 4 (citing, e. g., American Trucking, 358 U. S. at 145- 46; Chlorine Inst., 613 F. 2d at 123). We note that although the Commercial Wireless Division relied on the ministerial error doctrine, the doctrine did not actually apply, because the Commercial Wireless Division acted pursuant to a timely petition for reconsideration of the grant, rather than on its own motion. See id. at 13415- 16 ¶¶ 1- 3. 37 See supra ¶ 7. Champion cites Interstate Broadcasting Company, Inc., Hearing Designation Order, MM Docket No. 87- 239, 2 FCC Rcd 4051 (MMB ASD 1987) (Interstate), as an example of the Commission rescinding a license on its own motion more than 30 days after the grant. In that case, the Audio Services Division of the Mass Media Bureau granted a mutually exclusive renewal/ modification application for a broadcast station in 1984, instead of designating it for hearing. Id. at 4051 ¶ 2. Then, “[ d] ue to a computer data entry error, rather than a re[ s] cission notice, a notice was generated incorrectly indicating that the renewal was granted a second time.” Id. In 1987, relying on the line of cases cited above, the Audio Services Division invalidated the grant. Id. at 4051 ¶ 3 (citing American Trucking, 358 U. S. at 144). Due to the aged nature of the case, we are unable to determine whether the initial May 24, 1987 grant was due to a ministerial or clerical error. To the extent the Audio Services Division’s decision in Interstate conflicts with the authority discussed above, it is incorrect and will not be followed here. 38 See Opposition at 6- 8. We note that the Bureau’s MO& O states that the Branch rescinded the modification grants on grounds of administrative error. See MO& O, 14 FCC Rcd at 19004 n. 7. In fact, however, the Branch Letter does not specifically indicate the grounds upon which the Branch acted. See Branch Letter. 4 Federal Communications Commission FCC 01- 245 5 type of error that may be corrected after it becomes final. 39 IV. CONCLUSION 11. For the foregoing reasons, we conclude that the error alleged by Champion was not a ministerial or clerical error that permits deviation from the doctrine of administrative finality. 40 Consequently, the Branch’s action setting aside the grant of San Mateo’s modification applications was contrary to Section 1.113( a) of our Rules. Therefore, we deny Champion’s Petition and affirm the Commission’s determinations in its Order on Review and Reconsideration granting San Mateo’s petition for reconsideration. V. ORDERING CLAUSE 12. Accordingly, IT IS ORDERED that pursuant to Sections 4( i) and 405 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), 405, and Section 1.106( a)( 1) of the Commission’s Rules, 47 C. F. R. § 1.106( a)( 1), the Petition for Reconsideration filed on February 7, 2001, by Champion Communication Services, Inc., IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary 39 Hirschey v. FERC, 701 F. 2d 215, 219 (D. C. Cir. 1983). 40 See Sousa, 71 F. C. C. 2d at 1334 ¶ 7 (noting the strong public interest in a reasonable finality of Commission action). 5