Federal Communications CommissionDA 01-7

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
EASTERN MUNICIPAL
WATER DISTRICT
Licensee of Station WNVF985
Riverside County, California / )
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ORDER ON RECONSIDERATION

Adopted: January 2, 2001Released: January 3, 2001

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

I.INTRODUCTION

  1. We have before us a petition for reconsideration filed on May 23, 2000, by AVCOM Company, on behalf of Eastern Municipal Water District (EMWD).[1] The 2000 Petition seeks reconsideration of the dismissal of EMWD’s earlier-filed petition, filed on December 22, 1999.[2] On April 25, 2000, the 1999 Petition was dismissed for failure to satisfy the filing requirements of Section 1.106 of the Commission’s Rules.[3] The April 25, 2000, determination stated that the 1999 Petition had been improperly sent to the FCC’s Gettysburg office, instead of being filed with the Commission’s Office of the Secretary in Washington, D.C.[4] EMWD has successfully shown that the 1999 Petition satisfied the Commission’s filing requirements. For the reasons stated herein, the 2000 Petition, requesting reinstatement of the 1999 Petition for consideration on its merits, is granted. After careful consideration on the merits, the 1999 Petition is denied.

II.BACKGROUND

  1. Station WNVF985 is a five-channel, trunked Industrial/Land Transportation category system operating on 900 MHz band frequencies. On July 6, 1999, EMWD filed an application to modify its license for Station WNVF985 to add four additional base-station frequencies to be used for mobile-to-mobile “talk-around” mode.[5] On November 22, 1999, the Licensing and Technical Analysis Branch (Branch) of the Public Safety and Private Wireless Division, Wireless Telecommunications Bureau, granted EMWD authority to add four frequencies to Station WNVF985 for talk-around mode. However, the Branch granted EMWD four mobile frequencies instead of the four base-station frequencies requested in the application.[6]
  2. On December 22, 1999, EMWD filed the 1999 Petition with the Commission’s Office of the Secretary, Washington, D.C., 20554.[7] The original of the 1999 Petition has never been located. On December 21, 1999, a copy of the 1999 Petition was received by the FCC’s Gettysburg Office. By a letter ruling dated April 25, 2000, the 1999 Petition was dismissed based on the conclusion that it was improperly filed with the FCC’s Gettysburg office, instead of being filed with the Commission’s Office of the Secretary in Washington, D.C.[8] On May 23, 2000, EMWD filed the 2000 Petition, seeking reconsideration of the dismissal of its 1999 Petition, and consideration of the 1999 Petition on its merits. EMWD contends in the 2000 Petition that it properly filed the 1999 Petition with the Commission’s Office of the Secretary in Washington, D.C. in a timely manner.[9]

III.DISCUSSION

  1. 2000 Petition. EMWD submits evidence that the 1999 Petition had been timely filed with the Office of the Secretary, Washington, D.C. This evidence includes, inter alia, a FedEx USA Airbill, that reflects delivery to the FCC Office of the Secretary in Washington, D.C, and receipt by a Commission employee, on December 22, 1999.[10] We find that EMWD has persuasively demonstrated that it timely filed the 1999 Petition with the Commission’s Office of the Secretary in Washington, D.C. Accordingly, we conclude that the 1999 Petition should be reinstated and considered on its merits.
  2. 1999 Petition. Turning to the merits of the 1999 Petition, EMWD seeks the four base-station channels that it originally requested on July 6, 1999, instead of the four mobile channels that the Branch granted it on November 22, 1999.[11] Upon reconsideration, we conclude that the action by the Branch on the captioned application was proper.
  3. First, we note that EMWD did not describe its operation as itinerant; thus, “MO” (“mobile only” operations) is the appropriate station class, not “MOI.” Stations with an “MO” station class are only permitted to operate on frequencies in the 896-901 MHz band, provided they have an associated base station.[12] The frequencies requested by EMWD in its July 6, 1999, modification application are frequencies designated as “base-station frequencies,” pursuant to Section 90.613 of the Commission’s Rules.[13] Section 90.621(1)(ii) of the Commission’s Rules permits a mobile station to transmit on any frequency assigned to its base station. However, EMWD’s application did not propose to operate base stations on the four base-station frequencies that it sought. Nonetheless, instead of dismissing the application as defective, the Branch returned it to the Industrial Telecommunications Association (ITA), the FCC-certified frequency coordinator selected by EMWD for purposes of the subject application, for correction. The Branch indicated to ITA that the frequencies requested in EMWD’s application would only be available for mobile-to-mobile “talk-around” if the applicant also operated base stations on the frequencies requested.[14] The Branch also noted that the station class should be “MO,” instead of “MOI.”[15] On November 16, 1999, the Branch received a recertification from ITA, recertifying EMWD’s application with four mobile frequencies (897.6375 MHz, 897.6625 MHz, 900.9750 MHz, and 900.9875 MHz) and station class “MO.”[16] As a result, the Branch granted EMWD’s application as recertified by ITA. Based on these facts, we find the Branch’s action to be correct.
  4. We find that EMWD presents no arguments in its 1999 Petition that would lead us to alter the Branch’s November 22, 1999, action. We also note that EMWD failed to file a request for waiver of the Commission’s Rules when it filed its modification application on July 6, 1999. Accordingly, we affirm the Branch’s November 22, 1999, action, which modified Station WNVF985 by adding mobile frequencies 897.6375 MHz, 897.6625 MHz, 900. 9750 MHz, and 900.9875 MHz.

IV.ORDERING CLAUSES

  1. Accordingly, IT IS ORDERED THAT 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), 405, and Section 1.106 of the Commission’s Rules, 47 C.F.R. § 1.106, the petition for reconsideration submitted by AVCOM on May 23, 2000, IS GRANTED, allowing the reinstatement for consideration on the merits of the petition for reconsideration submitted by AVCOM on December 22, 1999.
  2. IT IS FURTHER ORDERED THAT 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), 405, and Section 1.106 of the Commission’s Rules, 47 C.F.R. § 1.106, the petition for reconsideration submitted by AVCOM on December 22, 1999, IS DENIED.

  1. 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

1

[1] Petition for Reconsideration (filed May 23, 2000) (2000 Petition).

[2] Petition for Reconsideration (filed Dec. 22, 1999, with the Commission’s Office of the Secretary, Washington, D.C., and received in the FCC’s Gettysburg Office on Dec. 23, 1999) (1999 Petition).

[3] See Letter from D’wana R. Terry, Federal Communications Commission, to William F. Kelsey, AVCOM Company (April 25, 2000).

[4] Id. at 2.

[5] See Application File No. 9907D128447 (requesting Industrial/Land Transportation category frequencies 936.6375 MHz, 936.6625 MHz, 939.9750 MHz, and 939.9875 MHz with station class MOI). Note: “MO” stands for “mobile.” “MOI” stands for “Mobile Itinerant.” MOI is the station class code used for mobile stations being utilized in itinerant operation on base or mobile frequencies designated for itinerant operation under Sections 90.35(c)(10) or 90.35(c)(17) of the Commission’s Rules, 47 C.F.R. §§ 90.35(c)(10), 90.35(c)(17).

[6] See November 22, 1999, grant of Application File No. 9907D128447 (adding 897.6375 MHz, 897.6625 MHz, 900.9750 MHz, and 900.9875 MHz, with station class MO, to Station WNVF985).

[7] See note 2, supra.

[8] See note 3, supra (citing 47 C.F.R. § 1.106).

[9] 2000 Petition at 4.

[10]See id.

[11] 1999 Petition at 1.

[12] See 47 C.F.R. § 90.613.

[13] 47 C.F.R. § 90.613.

[14] See Application Return Notice to ITA (dated November 1, 1999).

[15]Id.

[16] See ITA Frequency Coordination Number 0710010001.