Federal Communications Commission DA 00-929

Federal Communications Commission DA 00-929_

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter ofApplication of)

)

GRECO COUSINS CONCRETE CORP)File No. D069976

)

for Authorization to Operate a Private)

Land Mobile Radio Station)

in the Industrial Radio Service)

)

and)

)

License of )

)

BERGEN COUNTY POLICE DEPARTMENT)

)

to Operate Frequency Pair 477/480.5125 MHz)

under Call Sign WPLR685)

ORDER ON RECONSIDERATION

And

ORDER OF MODIFICATION

Adopted: April 25, 2000Released: May 18, 2000

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

I.INTRODUCTION

1.Greco Cousins Concrete Corp. (Greco) seeks reconsideration of the dismissal of its application for authorization to operate in the 470-512 MHz band. In addition, Greco requests initiation of a proceeding to revoke the license of the Bergen County Police Department (Bergen County) to operate on 477/480.5125 MHz under Call Sign WPLR685. For the reasons set forth below, we reinstate to pending status Greco’s application[1] for authorization of a new station in the Industrial Radio Service for use on frequency pair 477/480.5125 MHz. Additionally, on our own motion, we initiate a proceeding to modify Bergen County’s license.

II.BACKGROUND

2.Prior to February 1997, CIBRO Petroleum (CIBRO), a Special Industrial (SI) licensee was authorized to operate on frequency pair 477/480.5125 MHz under Call Sign WIL489. On February 7, 1997, the Association of Public Safety Communications Officials (APCO), a FCC-certified frequency coordinator for the Public Safety Radio Pool, submitted an application from the New York City Police Department (Police Department), a public safety entity, requesting an assignment of Station WIL489 from CIBRO to the Police Department and a modification of the license for Station WIL489 by relocating the base station and increasing the number of authorized units on frequency pair 477/480.5125 MHz from fifty-four to 200 units.[2] On February 11, 1997, the Industrial Telecommunications Association, Inc. (ITA), a FCC-certified frequency coordinator for the Industrial/Business Radio Pool, submitted a new application from Greco, a SI entity located in New York, to operate sixteen units on frequency pair 477/480.5125 MHz.[3]

3.At the time these applications were filed, CIBRO was the only licensee occupying frequency pair 477/480.5125 MHz. It is our understanding that CIBRO was operating fifty-four units under Call Sign WIL489 when the applications were filed.[4] On March 5, 1997, the Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division (Branch) granted the Police Department’s assignment and modification application.[5] On May 27, 1997, ITA requested that the Branch retract its March 5, 1997 grant because APCO failed to coordinate the Police Department’s modification application with ITA, which ITA contends APCO was required to do pursuant to the Commission’s Rules.[6]

4.On December 8, 1997, the Police Department filed an application to assign Station WIL489 to Bergen County, who in turn filed an application to consolidate frequency pair 477/480.5125 MHz under Bergen County’s Call Sign WPLR685.[7] The Branch granted the assignment application and Bergen County’s application on December 22, 1997.[8] On March 6, 1998, ITA requested a status update regarding Greco’s pending application.[9] On April 27, 1998, Bergen County requested the dismissal of Greco’s pending application and an order requiring Greco to stop operating on 477/480.5125 MHz.[10] On May 6, 1998, the Branch returned Greco’s application to ITA because Greco’s proposed location sites were not within 48 km of Greco’s associated base stations, in contravention of Section 90.305(b) of the Commission’s Rules.[11] The Branch further indicated that ITA should select another frequency for its applicant and amend the effective radiated power of the proposed station.[12]

5.On July 2, 1998, ITA re-certified and re-submitted Greco’s original application without making any changes to the application.[13] Noting that ITA is “the exclusive frequency advisory committee” for coordinating SI frequencies, ITA contended that the Police Department should have coordinated its request through ITA, not APCO, because the subject frequency had been licensed previously to CIBRO, an SI entity. ITA concluded that Greco’s application was the first properly coordinated application received by the Commission.[14] ITA therefore requested that the Commission re-process Greco’s application.[15] In November 1998, ITA supplemented its July Letter by contending that Bergen County did not have the authority to operate on frequency pair 477/480.51250.[16] ITA reasoned that because the Police Department’s application was defective, “any subsequent grant of that application is not controlling.”[17] ITA therefore asked that the Branch reinstate and process Greco’s application.[18]

6.On February 1, 1999, the Branch rejected ITA’s arguments and dismissed Greco’s application. On March 3, 1999, Greco filed a petition for reconsideration of the Branch’s dismissal of its application and a request to initiate a proceeding to revoke Bergen’s license.[19] Citing Sections 90.135(a) and 90.175(e) of the Commission’s Rules and “established Commission policy in the acceptance and processing of applications requiring prior frequency coordination,” Greco contends that APCO was required to “request concurrence from ITA prior to coordinating the Police Department’s applications”[20] because “only ITA was authorized to coordinate a request to relocate the base stations and increase loading on a 470-512 MHz Industrial Pool frequency.”[21] Greco also contends that APCO was required to “notify ITA of their submission to the FCC.”[22] Thus, Greco concludes that APCO’s alleged failure to coordinate with and notify ITA of the Police Department’s application renders the Police Department’s application defective, and Greco argues that the Branch erred in granting the Police Department’s application.[23]

III.DISCUSSION

A.Disposition of Greco Application

1. Greco argues that the Police Department’s application was defective on its face because APCO failed to obtain the concurrence of ITA before submission of the Police Department’s application to the Commission. We agree. Frequency coordination is the process by which a private organization recommends to the Commission the most appropriate frequencies for applicants in the designated radio services.[24] We believe that inaccurate or incomplete frequency recommendations, if relied upon by the Commission, undermine the efficient use of the radio spectrum. In 1986, the Commission adopted frequency coordination rules and procedures in an effort to maximize service to the public by assuring that the assignment and management of the private land mobile spectrum is performed in an efficient and effective manner.[25] The Commission stated that “[w]ithout access to accurate and current information, a coordinator cannot make sound frequency recommendations to applicants, and the Commission loses its ability to review effectively the frequency recommendations before licensing.”[26] Thus, applications proposing uses that could impact other requests or recommendations must be made known to all affected coordinators in order for them to be able to perform their functions in an efficient and effective manner.[27]

1. We note as a general matter, that applications for assignment of a license typically do not require frequency coordination.[28] However, an application which involves a change in the technical parameters of the station or a change to an authorization, which necessitates a modification request, requires frequency coordination.[29] Further, such modifications must be submitted in accordance with the coordination requirements in Sections 90.135 and 90.175 of the Commission’s Rules.[30]

1. In 1997, Sections 90.135(a) and 90.175 of the Commission’s Rules required the Police Department to obtain a coordination statement from a certified frequency coordinator prior to submitting its assignment and modification application to the Commission.[31] Specifically, Section 90.175 of the Commission’s Rules provided that, “[w]hen frequencies are shared by more than one service, concurrence must be obtained from the other applicable certified frequency coordinators.”[32]

1. Additionally, Section 90.175(b) of the Commission’s Rules required an applicant to obtain a “statement from the applicable coordinator recommending specific frequencies that are available for assignment in accordance with the loading standards and mileage separations applicable to the specific radio service or category of user involved.”[33] Thus, we also agree with Greco that the applicable coordinator for both the assignment and modification request was ITA, the certified SI frequency coordinator, because the frequency pair subject to assignment was licensed to CIBRO, an SI licensee.[34] Further, we accept Greco’s assertion that APCO failed to notify ITA.[35] Given these facts, we are persuaded that the Police Department’s application was defective when filed because APCO failed to coordinate the Police Department’s application with ITA. We also note the failure of APCO to obtain concurrence from ITA was unknown to the Branch staff when the Police Department’s application was granted. Because the Police Department’s application was defective as filed, we grant Greco’s Petition and return to pending status Greco’s application for authorization of a new station in the Industrial Radio Service for use on frequency pair 477/480.5125 MHz.[36] The Branch shall review this application and process it in accordance with the Commission’s Rules.

B.Finality of Bergen County’s License Grant

1. Greco recognizes that a petition for reconsideration of the Police Department’s license was required to be submitted within thirty days of public notice of final Commission action on the application.[37] The Police Department’s application was granted on March 5, 1997. Greco’s petition was not filed until March 3, 1999. Clearly, Greco’s Petition was untimely with respect to the Police Department’s application. Greco argues, however, that licensing errors may be brought to the attention of the Commission after the thirty-day reconsideration period.[38] Citing Section 312(a)(2) of the Communications Act of 1934, as amended, (Communications Act)[39] and as implemented by Section 1.91 of the Commission’s Rules,[40] Greco states that the Commission may revoke any station license at any time the Commission “learns that it issued a license in error.”[41] Greco therefore concludes that the Commission should exercise this authority and revoke the Police Department’s license and subsequent assignment to Bergen.[42] Although we believe that the Police Department’s application should have been returned to the coordinator and not granted without concurrence from ITA, we decline to exercise our discretionary authority to revoke in this instance

1. However, we believe that Section 316(a)(1) of the Communications Act involving modifications of licenses and not Section 312(a)(2) of the Communications Act involving revocations of licenses provides the appropriate vehicle for resolving this matter. Bergen County merged the frequency pair 477/480.5125 MHz into its existing station operating under Call Sign WPLR685. Section 316(a)(1) of the Communications Act permits the Commission to modify a station license if the action will promote the public interest, convenience and necessity, or the provisions of the Communications.[43]

1. As discussed above,[44] the Branch’s grant of the license to the Police Department was defective, with the result that the approval of the Police Department’s application to assign the frequency pair to Bergen County to operate Station WIL489 was also defective. Thus, we believe a modification of Bergen County’s license to remove frequency pair 477/480.5125 MHz is the appropriate course of action. Consequently, pursuant to Section 316 of the Communications Act,[45] we are notifying Bergen County that effective June 19, 2000, Bergen County may no longer use the frequency pair 477/480.5125 MHz in connection with its operation of Station WPLR685.

1. In accordance with Section 1.87(a) of the Commission's Rules,[46] this Order of Modification, will not become final until Bergen County has received notice of this action and an opportunity to protest the modification. Generally, Section 1.87(a) of the Commission’s Rules provides for a thirty-day period to protest a license modification.[47] Accordingly, Bergen County is provided thirty days notice of our action to modify its call sign to delete frequency pair 477/480.5125 MHz from call sign WPRL685.

1. Bergen County may protest the modification of its license if, within twenty-five days of the release of this Order of Modification, Bergen County submits a written statement with sufficient evidence to show that the proposed modification would not be in the public interest. Your right to protest shall be deemed waived unless the petition is filed not later than five days before the lapse of the thirty-day protest period.[48] Such protest must be filed with the Federal Communications Commission, Office of the Secretary, 445 Twelfth Street, S.W., Washington, D.C. 20554. Where the right to file a protest is waived, Bergen County will be deemed to have consented to the modification as proposed and a final decision will be issued accordingly.[49]

IV. CONCLUSION

1. For the reasons stated above, we conclude that the grant of the Police Department’s application was defective. As a result the assignment of license from the Police Department to Bergen County was defective. Accordingly, we propose to modify the license of Bergen County concerning the operation of Station WPRL685. Specifically, we propose to delete the frequency pair 477/480.5125 MHz from Bergen County’s Station WPRL685.

V. ORDERING CLAUSES

1. 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(j) of the Commission’s Rules, 47 C.F.R. § 1.106(j), Greco Cousins Concrete Corporation’s application under file number D069976 for authorization of a new station in the Industrial Radio Service for use on frequency pair 477/480.5125 MHz IS REINSTATED to pending status.

1. IT IS FURTHER ORDERED THAT, pursuant to Sections 4(i) and 312 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 312, and Section 1.91 of the Commission’s Rules, 47 C.F.R. § 1.91, the Request for Initiation of a Revocation Proceeding filed by Greco Cousins Concrete Corp on March 3, 1999, IS DENIED.

1. IT IS FURTHERED ORDERED THAT, pursuant to Sections 4(i) and 316 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 316, and Section 1.87 of the Commission’s Rules, 47 C.F.R. § 1.87, that this Order of Modification shall become effective on June 19, 2000 if Bergen County Police Department does not protest the Order of Modification.

1. IT IS FURTHER ORDERED pursuant to Sections 4(i) and 316 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 316 and section 1.87(i) of the Commission's Rules, 47 C.F.R. § 1.87(i) that the Order of Modification shall be served by certified mail, return receipt requested upon Bergen County Police Department.

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]File No. D069976.

[2]Application File No. 9702A003396 (filed Feb. 7, 1997) (Police Department Application).

[3]Application File No. D069976 (filed Feb. 11, 1997) (Greco Application).

[4]Greco Petition for Reconsideration and Request for Initiation of Revocation Proceeding (filed Mar. 3, 1999) (Petition).

[5]Police Department Application (granted Mar. 5, 1997).

[6]Letter from Marie L. Hawkins, Spectrum Manager, ITA, to Michael Regiec, Licensing and Technical Analysis Branch, Wireless Telecommunication Bureau (May 27, 1997) (Retraction Letter).

[7]Application File No. 9712A010992 (filed Dec. 8, 1997).

[8]Radio Station License for call sign WPLR685 (File No. 9712A010992) (granted Dec. 22, 1997).

[9]Letter from Richard F. Feser, ITA, to Michael Regiec, Licensing and Technical Analysis Branch, Federal Communications Commission (Mar. 5, 1998).

[10]Letter from Paul A. Einreinhofer, Sergeant, Division of Emergency Management, Department of Public Safety, County of Bergen, to Michael Regiec, Licensing and Technical Analysis Branch, Federal Communications Commission (Apr. 23, 1998).

[11]Letter from the Licensing and Technical Analysis Branch, Federal Communications Commission, to ITA (May 6, 1998).

[12]Id.

[13]Letter from Andre F. Cote, Senior Vice President, ITA, to Michael Regiec, Chief, Licensing and Technical Analysis Branch, Federal Communications Commission (July 2, 1998)(July Letter).

[14]Id.

[15]Id.

[16]Letter from Andre Cote, Senior Vice President, Spectrum Operations & Analysis, ITA, to Mary Shultz, Chief, Licensing & Technical Analysis Branch, Public Safety and Private Wireless Division, Federal Communications Commission (Nov. 16, 1998) (Resubmission Letter).

[17]Id. at 4.

[18]Resubmission Letter.

[19]Petition at 8.

[20]Petition at 2.

[21]Petition at 3.

[22]Petition at 2.

[23]Petition at 4.

[24]Frequency Coordination in the Private Land Mobile Radio Services, Report and Order, 103 FCC2d 1093, 1094 ¶ 1 (1986).

[25]Id. at 1094 -1095 ¶ 2.

[26]Id. at 1148 ¶ 111; see alsoid. at 1150 ¶ 116.

[27]Id. at 1150 ¶ 116.

[28]Id. at 1154 – 1155 ¶ 125

[29]Id. at 1154 – 1155 ¶ 125; see also 47 C.F.R. § 90.175(f)(9) (1986).

[30]Id. at 1148 – 1149 ¶ 112.

[31]47 C.F.R. § 90.135(a) (1996); 47 C.F.R. § 90.175(b) (1996). Greco cites 47 C.F.R. § 90.175(e) in support of its argument that the Police Department was required to obtain concurrence from ITA. Because Section 90.175(e) pertained to frequency coordination requirements with Canada at the time the Branch granted the Police Department’s application, however, we presume Greco intended to cite 47 C.F.R. § 90.175(b).

[32]47 C.F.R. § 90.175 (1996).

[33]47 C.F.R. § 90.175(b)(1996). At 62 Fed. Reg. 18925, the Commission amended § 90.175 on April 17, 1997, which resulted in the re-designation of paragraph (b) as paragraph (e). The newly designated paragraph (e) was also revised, and the changes became effective Oct. 17, 1997.

[34]Supra para. 5, at 3.

[35]Petition at 2.

[36] 47 C.F.R. § 1.106.

[37]Petition at 7.

[38]Petition at 7.

[39]47 U.S.C.A. § 312(a)(2) (1998).

[40]47 C.F.R. § 1.91 (1998).

[41]Petition at 7.

[42]Petition at 8.

[43] 47 U.S.C. § 316(a)(1).

[44]Supra para. 10.

[45]47 U.S.C. § 316.

[46]47 C.F.R. § 97.27(b).

[47]47 C.F.R. § 1.87(a) allows the imposition of a shorter period of time where safety of life or property is involved.

[48] 47 C.F.R. § 1.87(g).

[49] 47 C.F.R. § 1.87(h).