Federal Communications Commission DA 01-521

Before the

Federal Communications Commission
Washington, D.C. 20554

In the Matter of )

)

COMTEX COMMUNICATIONS, INC. ) )

Modification of the License for )

Industrial/Business Radio Service Station )

WPKR712, Red Oak, Texas )

)

and )

)

TUFCO READY MIX, INC. ) )

Reinstatement of the License for )

Industrial/Business Radio Service Station )

WNBF444, Red Oak, Texas )

MEMORANDUM OPINION AND ORDER

Adopted: February 27, 2001 Released: March 1, 2001

By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:

1.  Introduction. In this Memorandum Opinion and Order, we modify the license for Industrial/Business Radio Service Station WPKR712, Red Oak, Texas, licensed to Comtex Communications, Inc. (“Comtex”). Specifically, we remove the frequency pair 483.4625/486.4625 MHz from the authorization, and issue a new license to Comtex authorizing conventional operation on that frequency pair with loading of 55 mobile units. As explained below, we take this action in order to permit the reinstatement of a license on the same frequency pair to another entity, Tufco Ready Mix, Inc. (“Tufco”). We also reinstate Tufco’s authorization to operate Station WNBF444 in accordance with the terms of the previous authorization for that station.

2.  Background. In 1997, Tufco was the licensee of Industrial/Business Radio Service Station WNBF444, Red Oak, Texas, authorizing the use of up to thirty-five mobile units on frequency pair 483.4625/486.4625 MHz. On November 26, 1997, we granted an application for consent to the assignment of the license for Station WNBF444 from Tufco to JRJ Paving, Inc. (“JRJ Paving”).[1] The application was purportedly signed on behalf of Tufco by an individual named “Renee D. Granos” who was identified in the application as a Vice President of Tufco.[2] Some eight months later, on July 20, 1998, we granted another application for assignment of the Station WNBF444 license from JRJ Paving to Comtex.[3] We also granted a request by Comtex, licensee of Private Land Mobile Radio Service (PLMRS) Station WPKR712, with an authorized loading of fifty-five mobile units, to cancel the Station WNBF444 call sign and combine the loading from the two licenses under the single call sign of Station WPKR712.[4] Both facilities operated on the same frequency pair. With a total loading of ninety mobile units, Comtex obtained exclusive use of the 483.4625/486.4625 MHz frequency pair in the Red Oak, Texas, area.[5]

3.  An investigation by the Commission’s Enforcement Bureau revealed, however, that Tufco never authorized the filing of an application to assign its license. The investigation also revealed that there has never been a “Rene D. Granos” associated with Tufco and that Tufco has continuously operated on the frequency pair.[6] Consequently, on June 28, 2000, we concluded that we should modify Comtex’s license for Station WPKR712 from ninety to fifty-five mobile units at its Red Oak site, and reinstate Tufco’s license for Station WNBF444.[7] In accordance with Section 1.87(a) of the Commission’s Rules,[8] we notified Comtex of the proposed action and its opportunity to interpose a protest.

4.  On July 12, 2000, Comtex filed a petition for reconsideration in which it “requests only limited reconsideration of the Bureau’s Order.”[9] Specifically, Comtex states that the Order did not take into consideration that the license for Station WPKR712 includes two trunked channels in addition to the channel at issue, and it is concerned that the mobile count will be incorrectly reduced on all three channels.[10] Comtex thus requests that the Bureau issue a separate license for an Industrial/Business-Conventional station on 483.4625/486.4625 MHz, authorized for fifty-five mobile units, and issue a modified license for Station WPKR712, deleting 483.4625/486.4625 MHz and retaining authority to operate ninety mobile units in a trunked mode on 484.8625/487.8625 MHz and 484.8875/487.8875 MHz.[11]

5.  Discussion. Although the Petition primarily addresses Comtex’s desire to maintain its authorization to use ninety mobile units on 484.8625/487.8625 MHz and 484.8875/487.8875 MHz, it also supports the notion that Tufco’s license should be reinstated;[12] and, as a result, it does not protest the proposed modification of Comtex’s authorization for operations on 483.4625/486.4625 MHz. Based on the record in this proceeding, we find that Comtex has consented to the proposed modification.[13] Our intention was to reduce Comtex’s mobile count to fifty-five only for the frequency pair 483.4625/486.4625 MHz. We will, therefore, adopt Comtex’s suggestion and issue Comtex a new license for an Industrial/Business-Conventional station on 483.4625/486.4625 MHz, authorized for fifty-five mobile units. In addition, we will modify Comtex’s license for Station WPKR712 accordingly, by deleting the frequency pair 483.4625/486.4625 MHz at the Red Oak site. Comtex’s authorization to operate on 484.8625/487.8625 MHz and 484.8875/487.8875 MHz will not be modified.

6.  ACCORDINGLY, IT IS ORDERED pursuant to Sections 4(i) and 316(a) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 316(a), and Section 1.87 of the Commission’s Rules, 47 C.F.R. § 1.87, that the license for Station WPKR712 IS MODIFIED, effective thirty days from the release of this Order, by deleting 483.4625/486.4625 MHz from the authorization.

7.  IT IS FURTHER ORDERED THAT the Petition for Reconsideration filed by Comtex Communications, Inc. on July 12, 2001 IS GRANTED, and The Licensing and Technical Analysis Branch shall issue Comtex a new authorization for an Industrial/Business-Conventional station at the Red Oak site on frequency pair 483.4625/486.4625 MHz, authorized for fifty-five mobile units.

8.  IT IS FURTHER ORDERED THAT pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. § 154(i), the license of Tufco Ready Mix, Inc. for Station WNBF444, Red Oak, Texas IS REINSTATED. The Licensing and Technical Analysis Branch shall issue Tufco a new authorization for Station WNBF444 with technical parameters identical to Tufco’s previous authorization for that station.

9.  IT IS FURTHER ORDERED THAT this Order shall be sent by certified mail, return receipt requested, to counsel for Comtex, Dennis C. Brown, Esq., 126/B North Bedford Street, Arlington, Virginia 22201, and to counsel for Tufco, James J. Freeman, Esq., Kelley, Drye & Warren, LLP, 1200 19th Street, N.W., Suite 500, Washington, DC 20036.

10.  This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission’s Rules, 47 C.F.R. §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION

D’wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

2

[1] See FCC File No. 9707D085896.

[2] Declaration of Benny L. Atkins, Operations Manager, Tufco Ready Mix, Inc. dated November 23, 1998, filed as an attachment to Opposition to Petition for Reconsideration filed by Tufco on November 25, 1998 (Atkins Declaration).

[3] See FCC File No. A021112.

[4] Id.

[5] See 47 C.F.R. § 90.313.

[6] See Atkins Declaration, pp. 1-2.

[7] Comtex Communications, Inc., Order, 15 FCC Rcd 11730 (WTB PSPWD 2000).

[8] 47 C.F.R. § 1.87(a).

[9] Comtex Communications, Inc. Petition for Reconsideration, filed July 12, 2000 (Petition).

[10] Id. at 2. The two additional frequency pairs are 484.8625/487.8625 MHz and 484.8875/487.8875 MHz.

[11] Petition at 2.

[12] Id. at 3.

[13] See 47 C.F.R. § 1.87(g)(1).