Federal Communications Commission FCC 08-61 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of 
NATIONAL READY MIXED CONCRETE CO.,
Assignor
MOBILE RELAY ASSOCIATES,
Assignee
Application for Consent to the Assignment of 
Licenses for Private Land Mobile Radio Stations 
KLH414 and KL3784, Corona, California
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FCC File No. 0001799643
MEMORANDUM OPINION AND ORDER 
Adopted:  February 20, 2008 Released:  March 17, 2008
By the Commission:
1. In a February 22, 2007 Order on Reconsideration,1 the Mobility Division (Division) of 
the Wireless Telecommunications Bureau (Bureau) denied a petition filed by National Science and 
Technology Network, Inc. (NSTN) for reconsideration of an Order2 denying NSTN’s informal petition to 
deny the above-captioned application to assign the licenses for private land mobile radio Stations 
KLH414 and KL3784, Corona, California, from National Ready Mixed Concrete Co. (NRMC) to Mobile 
Relay Associates (MRA). We have before us a pleading that we treat as an application for review of the 
Order on Reconsideration.3 For the reasons set forth below, we deny NSTN’s application for review.
2. Background.  The above-captioned application to assign the licenses for private land 
mobile radio stations KLH414 and KL3784 from NRMC to MRA was filed on July 8, 2004.4 NSTN filed 
an informal petition to dismiss or deny the application on the grounds that the subject licenses cancelled 
automatically due to permanent discontinuance of station operation pursuant to Section 90.157 of the 
Commission’s Rules.5 In support of its claim that station operation had been discontinued, NSTN 
asserted that NRMC had been NSTN’s customer, paying NSTN to operate on NSTN’s co-channel Station 
WPPZ334, Glendale, California.  In opposition, MRA submitted documentation and sworn declarations 
from principals of NRMC and MRA attesting that the NRMC stations were in continuous operation, 
including the period when NRMC was a customer of NSTN, and that NRMC purchased service on 
  
1 National Ready Mixed Concrete Co., Order on Reconsideration, 22 FCC Rcd 3768 (WTB MD 2007) (Order on 
Reconsideration).
2 National Ready Mixed Concrete Co., Order, 21 FCC Rcd 5151 (WTB PSCID 2006) (Order).
3 See infra at paras. 6-7.
4 FCC File No. 0001799643 (filed July 8, 2004, amended Aug. 17, 2004).  The KLH414 license covered the base 
station and the KL3784 license authorized fifty associated mobile units.  The mobile units subsequently were added 
to the KLH414 license, and the KL3784 license was terminated.  See FCC File No. 00022661086 (filed June 23, 
2006).
5 47 C.F.R. § 90.157.
Federal Communications Commission FCC 08-61
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NSTN’s station to supplement, rather than replace, its own operations.  In reply, NSTN disputed that 
NRMC maintained its own operations, provided invoices and additional information to substantiate its 
claims that NRMC had been its customer, and submitted a declaration from NSTN’s president asserting, 
inter alia, that NSTN “routinely monitored the channel” and never heard NRMC use its own call signs in 
its transmissions.6  
3. After MRA filed an erratum to its opposition to provide an attachment (payments by 
NRMC for rental of its transmitter site) that had been referenced in but inadvertently omitted from one of 
the declarations attached to MRA’s opposition,7 NSTN filed a response to the erratum in which it sought 
to present additional evidence regarding business dealings between NSTN and NRMC.8 MRA moved to 
strike NSTN’s response to the erratum, or in the alternative to present rebuttal evidence.9 NSTN 
responded to MRA’s motion.10
4. On May 12, 2006, the Bureau’s Public Safety and Critical Infrastructure Division 
(PSCID)11 denied NSTN’s informal petition to dismiss or deny the application.  PSCID declined to 
consider the additional information in NSTN’s response to MRA’s erratum, and dismissed the response 
and the subsequent responsive pleadings.12 PSCID then concluded, based on the record before it, that
NSTN had not demonstrated that the licenses for Stations KLH414 and KL3784 cancelled automatically 
due to permanent discontinuance of operation because it was plausible that NRMC purchased service on 
NSTN’s co-channel station to augment its own operations,13 and the monitoring mentioned by NSTN fell 
short of the detailed monitoring studies required by Commission precedent to substantiate permanent 
discontinuance of operations. 14 On May 16, 2006, NSTN filed a petition for reconsideration.
5. On February 22, 2007, the Division denied NSTN’s petition for reconsideration.  The 
Division accepted PSCID’s decision not to consider the additional information first proffered in NSTN’s 
response to MRA’s erratum,15 and affirmed the finding in the Order that the record did not set forth 
  
6 See Response of National Science and Technology Network, Inc. (NSTN) to Opposition to Informal Petition to 
Dismiss or Deny (filed Aug. 16, 2004).
7 See Mobile Relay Associates, Erratum to Opposition to Informal Petition to Dismiss or Deny (filed Aug. 17, 
2004).
8 See Response of National Science and Technology Network, Inc. (NSTN) to Opposition to Erratum of [sic] 
Opposition to Informal Petition to Dismiss or Deny (filed Aug. 30, 2004).
9 See Mobile Relay Associates, Response to Improper Pleading (filed Sept. 8, 2004).
10 See Reply of NSTN to “Response of MRA, dated September 8, 2004” (filed Oct. 4, 2004).
11 Pursuant to a Commission reorganization effective September 25, 2006, certain duties of the Public Safety and 
Critical Infrastructure Division were assumed by the Mobility Division.  See Establishment of the Public Safety and 
Homeland Security Bureau, Order, 21 FCC Rcd 10867 (2006).
12 See Order, 21 FCC Rcd at 5152 n.7, 5153-54 ¶ 9.  Specifically, in the exercise of its discretion with respect to 
review of informal objections and responsive pleadings thereto, PSCID declined to permit NSTN to introduce new 
factual allegations that could have been raised earlier in the proceeding.  Id. at 5152 n.7 (citing Automobile Club of 
Southern California, Order on Reconsideration, 16 FCC Rcd 2934, 2936 ¶ 6 (WTB PSPWD 2001); Colorado RSA 
7B(2) Limited Partnership, Order, 13 FCC Rcd 22079, 22081 n.17 (WTB CWD 1998)).
13 See id. at 5152-53 ¶ 5.
14 Id. at 5153 ¶ 6 (citing, e.g., Quatron Communications, Inc., Memorandum Opinion and Order, 15 FCC Rcd 4749, 
4753 ¶ 13 (2000); Cellular Design Corporation, Memorandum Opinion and Order, 14 FCC Rcd 13059, 13064 ¶ 12 
(1999)).
15 See Order on Reconsideration, 22 FCC Rcd at 3770-71 & n.26 (citing, e.g., Colorado Radio Corp. v. Federal 
Communications Commission, 118 F.2d 24, 26 (D.C. Cir. 1941)).  The Division rejected NSTN’s argument that the 
Order had “ignored” probative evidence of discontinuance.  Id. at 3770 ¶ 6.
Federal Communications Commission FCC 08-61
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persuasive evidence of discontinuance of operation.16 Finally, the Division concluded that the proof of 
monitoring submitted by NSTN “fell far short of what is required” to demonstrate permanent 
discontinuance of operations.17
6. On February 28, 2007, NSTN filed a pleading identified as a petition for reconsideration 
of the Order on Reconsideration.18 On March 13, 2007, MRA moved to dismiss the petition on the 
grounds that it was repetitious of the petition for reconsideration that was denied in the Order on 
Reconsideration.19 In response, NSTN requested that its pleading be deemed an application for review, 
rather than a petition for reconsideration.20 NSTN also requested the initiation of modification 
proceedings pursuant to Section 316 of the Communications Act of 1934, as amended,21 with respect to 
the MRA licenses at issue.22 MRA opposed those requests.23  
7. Discussion.  As an initial matter, we address NSTN’s requests that we treat its petition as 
an application for review, and that we initiate license modification proceedings with respect to the MRA 
licenses.  Because NSTN’s petition was filed within the time for filing an application for review, and was 
directed to the Commission rather than the Division, we will exercise our discretion to treat it as an 
application for review.24 We decline, however, to consider the modification request in the context of this 
proceeding.25 Moreover, we agree with MRA’s observation that NSTN appears to seek not modification 
but rescission or revocation of the licenses, which is beyond the scope of Section 316.26
8. In its application for review, NSTN asserts that the Division should have concluded, 
  
16 Id. at 3770 ¶ 6.
17 Id. at 3771 ¶ 7.
18 See Letter dated Feb. 28, 2007 from Ted S. Henry, President, NSTN, to Secretary, Federal Communications 
Commission (AFR).  
19 See Motion to Dismiss or, in the Alternative, Opposition to “Informal” Petition for Reconsideration (filed Mar. 13, 
2007) (citing 47 C.F.R. § 1.106(k)(3)).  
20 See Opposition to Motion to Dismiss and Cross Motion to Consider Pleading as Application for Review Filed by 
National Science and Technology Network, Inc. (NSTN) and Request to Initiate Modification Proceedings Against 
Mobile Relay Associates to Cancel Its Assignments and Cancel Its Licenses (filed Mar. 29, 2007) (Reply).  
21 47 U.S.C. § 316.
22 See Reply at 3.  
23 See Response to Opposition, Cross Motion and Request to Initiate Modification Proceedings (filed Apr. 11, 2007) 
(Response).  
24 See Amendment of Section 73.202(b), Table of Allotments, FM Broadcast Stations (Anniston and Ashland, 
Alabama, and College Park, Covington, Milledgeville and Social Circle, Georgia), Memorandum Opinion and 
Order, 16 FCC Rcd 19857, 19857 n.1 (2001) (granting request to treat pleading captioned petition for 
reconsideration as application for review); WPBN/WTOM License Subsidiary, Inc., Memorandum Opinion and 
Order, 15 FCC Rcd 1838, 1838 n.1 (2000) (same); Texas Media Group, Inc., Memorandum Opinion and Order, 5 
FCC Rcd 2851, 2851 n.1 (1990) (same).
25 See Charles T. Crawford, Memorandum Opinion and Order, 17 FCC Rcd 19328, 19330 ¶ 6 (2002) (Crawford) 
(“Finally, we dismiss Kay's informal request that seeks to modify the authorizations for the captioned authorizations.  
We are not obligated to consider such pleadings.  In the instant case, as a matter of our discretion, we decline to 
consider Kay's informal request because we believe it would be an inefficient use of our resources to consider the 
request, which merely reiterates arguments contained in his AFR.  Therefore, to the extent Kay's pleading informally 
requests that we modify the licenses in question, we dismiss that request.”) (footnotes omitted), recon. dismissed, 
Order, 18 FCC Rcd 10475 (WTB PSPWD 2003).  
26 See Response at 6; see also Crawford, 17 FCC Rcd at 19330 n.22.
Federal Communications Commission FCC 08-61
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based on relevant information regarding business dealings between NSTN and NRMC, that NRMC 
discontinued operation of its licensed facilities.27 NSTN argues that this information renders immaterial 
the issue of whether its monitoring was sufficient to demonstrate permanent discontinuance of 
operations.28 We disagree.  
9. NSTN does not specifically challenge – or even acknowledge – the decision to exclude 
the evidence regarding business dealings between the parties first proffered in NSTN’s response to 
MRA’s erratum.  We agree with the Division’s suggestion that PSCID was within its discretion to decline 
to consider new facts at that stage of the informal proceeding.29 Even if the response to the erratum were 
treated as a formal reply to MRA’s erratum, it would have been defective because it was not “limited to 
matters raised” in the erratum.30 The erratum simply offered documentation that had been omitted from 
MRA’s opposition.  It was not an opportunity for NSTN to offer new evidence regarding other matters.  
10. We further conclude that the Order and Order on Reconsideration correctly found that 
the evidence of discontinuance properly presented to the Bureau failed to substantiate NSTN’s allegation 
that NRMC’s licenses cancelled automatically.  Like a petition to deny, an informal objection “must 
contain specific allegations of fact sufficient to make a prima facie showing that … a grant of the 
application would be inconsistent with the public interest, convenience and necessity.”31 NSTN’s petition 
failed to meet this standard.  The only factual allegation made in the petition to show that the subject 
station had discontinued operation was the allegation that NRMC “has been our customer, paying us 
$960.00 per month to operate under the Private Carrier license of National Science & Technology 
Network Inc. Call Sign WPPZ334 for more than 4 years.”32 Accepting the truth of that allegation, we do 
not agree with NSTN’s argument that NRMC’s use of NSTN’s facilities as a paying customer proves that 
NRMC discontinued operations at its own station.  Rather, as noted in the Order, “[i]t is plausible that the 
licensee would use the other station’s facilities to augment its own operations, as MRA asserts is the case 
here.”33  
11. Nor was NSTN’s evidence of monitoring sufficient.  We agree with NSTN that 
permanent discontinuance of station operations can be substantiated without submitting detailed 
monitoring studies.  To the extent that the Division’s language can be construed to suggest that detailed 
monitoring studies are an essential component of a successful claim that a license cancelled automatically 
pursuant to Section 90.157, we believe that this overstates the case.34 Certainly, there are circumstances 
where monitoring studies are unnecessary, such as an undisputed statement from the site owner/manager 
  
27 See AFR at 1.
28 Id.
29 Similarly, we decline to consider the “newly discovered evidence” submitted with NSTN’s reply to MRA’s 
opposition to its application for review.  See Reply at 3, Ex. C.  The information relates to events in 2002 and earlier, 
and NSTN offers no explanation why it could not have been submitted sooner.  Moreover, an application for review 
may not rely on questions of law or fact upon which the designated authority was afforded no opportunity to pass.  
See 47 C.F.R. § 1.115(c).
30 See 47 C.F.R. § 1.45(c).
31 See 47 C.F.R. § 1.939(d); Area Christian Television, Inc., Memorandum Opinion and Order, 60 Rad. Reg. 2d 
(P&F) 862, 864 (1986).
32 The entire petition to deny was reproduced in a footnote in the Order on Reconsideration.  See Order on 
Reconsideration, 21 FCC Rcd at 3771 n.26.
33 See Order, 21 FCC Rcd at 5153 ¶ 5.  
34 We do not believe that this was the Division’s intent, for the Division specifically stated that the monitoring 
requirement applies only “absen[t] unusual circumstances,” see Order on Reconsideration, 22 FCC Rcd at 3771 
¶ 7, such as those discussed infra.
Federal Communications Commission FCC 08-61
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that the putative licensee no longer maintains a transmitter at the authorized site, or persuasive evidence 
that the licensee no longer exists, or an admission by the licensee that the facility ceased operating.35  
Absent such evidence, however, a claim of permanent discontinuance of operations that relies materially 
on the complainant’s contention that the licensee has not been heard on the authorized frequencies must, 
under Commission precedent,36 be supported by continuous monitoring.37 Because the present matter 
does not present such circumstances, we agree with the Division that NSTN’s monitoring fell short of 
what is required to demonstrate discontinuance of operation.
12. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 5(c) of the 
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 155(c), and Section 1.115 of the 
Commission’s Rules, 47 C.F.R. § 1.115, the petition for reconsideration filed by National Science and 
Technology Network, Inc. on February 28, 2007, when treated as an application for review, IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
  
35 See, e.g., Glendale Electronics, Inc., Memorandum Opinion and Order, 19 FCC Rcd 2540, 2542-43 ¶ 8 (2004) 
(entity that agreed to acquire station in 1994 decided to let license expire rather than file assignment application, but 
assignor’s subsequently-appointed conservator, unaware of the agreement, renewed the license; Commission 
concluded that license cancelled automatically in 1995), recon. dismissed, Order on Reconsideration, 20 FCC Rcd 
4238 (WTB MD 2005); Veracon, Inc., Memorandum Opinion and Order, 16 FCC Rcd 4287, 4287-88 ¶ 2 (2001) 
(affidavit that complainant inspected licensee’s site and found no equipment operating on licensed frequency, and by 
monitoring observed that licensee operated on a different frequency authorized under another license); Mobile 
U.H.F., Inc., Memorandum Opinion and Order, 15 FCC Rcd 3286, 3287 ¶ 4 (2000) (licensee removed equipment 
and commenced operating on a different frequency licensed to a community repeater), recon. dismissed, Order, 15 
FCC Rcd 12844 (WTB PSPWD 2000); West Coast Cab Company, Memorandum Opinion and Order, 15 FCC Rcd 
5909, 5910 ¶¶ 3-4 (2000) (site manager stated that transmitter had been disconnected for over a year for failure to 
pay site rental fee, and Commission correspondence to licensee was returned unclaimed); Milton H. Pintell, Order 
on Reconsideration, 20 FCC Rcd 19315, 19316 ¶ 3 (WTB PSCID 2005) (declarations that complainant’s personnel 
visited the authorized site “and were told by the building’s security chief that there were no antennas on the roof”).  
36 See note 14, supra.  
37 See, e.g., Elmont Trans Med Corporation, Order, 18 FCC Rcd 18692, 18694-95 ¶ 9 (WTB PSPWD 2003).