**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| JPJ Electronic Communications,   | ) |                              |
| Inc.                             | * |                              |
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| For Reconsideration of Dismissal |   |                              |
| of Informal Request to Modify    | * |                              |
| Station KNNQ312, Licensed to the | * |                              |
| Town of Clay, New York           | ) |                              |
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+----------------------------------+---+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted:** February 2, 2001 **Released:** February 6, 2001

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

# introduction

1.  The Division has before it a petition for reconsideration (Petition)
    filed on July 12, 2000, by JPJ Electronic Communications, Inc.
    (JPJ).[^1] JPJ requests reconsideration of the action by the Chief,
    Licensing and Technical Analysis Branch (Branch), Public Safety and
    Private Wireless Division,[^2] dismissing JPJ's earlier request to
    modify the above-captioned license of the Town of Clay, New York
    (the Town).[^3] For the reasons set forth below, we grant the
    Petition in part but deny the captioned request on the merits.

# background

2.  On June 12, 1995, the Commission granted Irvin Geib (Geib) a license
    to operate an 800 MHz conventional Specialized Mobile Radio (SMR)
    system on Channel 22[^4] in Deerfield Township, New York.[^5] On
    January 10, 1996, the Town filed an application with the Commission
    for a new 800 MHz trunked system that included Channel 22, and which
    the Commission granted on April 12, 1996, under Call Sign
    KNNQ312.[^6] The Commission's licensing records reflect that Geib's
    1995 license was superseded on July 30, 1996, to decrease the number
    of authorized mobiles to two units.[^7] Geib subsequently assigned
    this authorization to JPJ.[^8]

3.  On December 23, 1999, JPJ filed a Request for License Modification
    (Request) to have the Commission force the Town to move from Channel
    22 to another frequency. JPJ stated that "significant interference
    was experienced" after construction of both systems at the
    authorized transmitter sites.[^9] JPJ argued that the Town's license
    was granted in error because the transmitter site proposed in the
    Town's application was only 50.94 miles from JPJ's earlier-licensed
    site, which JPJ averred did not satisfy the minimum distance
    separation requirements of the Commission Rules.[^10] On June 12,
    2000, the Branch dismissed JPJ's Request after deeming it to be a
    late-filed petition for reconsideration of the Commission's April
    12, 1996, action granting the Town a license for Station
    KNNQ312.[^11]

4.  On July 12, 2000, JPJ filed the instant Petition, which contends
    that the Branch erred in concluding that it lacked authority to
    consider JPJ's Request.[^12] JPJ asks us to reconsider the Branch
    Letter and to modify the Town's license for Station KNNQ312 by
    deleting Channel 22 and adding designation for authorization on "an
    alternative frequency."[^13] On July 24, 2000, the Town filed an
    Opposition to Petition for Reconsideration arguing that JPJ's
    Petition must fail.[^14]

# discussion

5.  As a preliminary matter, we agree with JPJ that the Branch erred in
    dismissing the Request as an untimely petition for reconsideration
    of the Town's 1996 license grant. JPJ styled its pleading as a
    request to modify the Town's license; thus, the Branch should not
    have considered the Request to be governed by Section 405 of the
    Communications Act,[^15] which governs petitions for
    reconsideration. Nor did JPJ's failure to petition for
    reconsideration within thirty days of the Town's 1996 license grant
    forever extinguish our authority under the Communications Act of
    1934 (the Act), as amended, to modify the Town's license.[^16] In
    this regard, we note that Section 316(a) of the Act allows the
    Commission to modify a license "if in the judgment of the Commission
    such action will promote the public interest, convenience, and
    necessity, or the provisions of this Act or of any treaty ratified
    by the United States will be more fully complied with."[^17] The
    Commission has modified licenses to correct an erroneous grant of an
    application even when no timely petition for reconsideration of the
    grant was filed.[^18] Indeed, reconsideration under the Section 316
    modification provision has been fundamentally predicated on a lapse
    of this 30-day period.[^19] However, the Commission does not have
    formal procedures recognizing "petitions to modify" submitted by
    third parties. Rather, we treat such requests as informal requests
    for Commission action, pursuant to Section 1.41 of the Commission's
    Rules.[^20] Thus, we are granting the Petition in part and will
    consider the Request on the merits pursuant to Section 1.41 of the
    Commission's Rules.[^21]

6.  Turning to the merits of the Request, we find that JPJ has shown
    that the Town's license was probably granted in error in 1996.
    Nonetheless, we further find that JPJ has not established that the
    public interest would be served by modifying the Town's license, as
    requested. First, we note that JPJ's factual claims of harmful
    interference are unsubstantiated. For example, JPJ has not provided
    any affidavits, documents, or engineering showings to support its
    interference claims. Moreover, even assuming that JPJ's statements
    were substantiated (that significant interference was experienced
    after construction of both systems at the authorized transmitter
    sites),[^22] we note that the two licenses in question were issued
    in 1995-96. Thus, construction and operation of these stations
    commenced no later than one-year thereafter, *i.e.*, early
    1997.[^23] The record before us, however, provides no explanation
    why JPJ waited until December 23, 1999, to file the Request.[^24]
    Furthermore, the Request seeks to have us delete Channel 22 from the
    Town's license without considering that when the Commission granted
    the Town's 1997 modification application,[^25] Geib was only
    licensed for two mobile units and, thus, held Channel 22 on a
    shared, nonexclusive basis. Thus, we find that the Request provides
    no basis for *deleting* Channel 22 from the Town's license.

7.  Our finding that JPJ has not shown that the public interest would be
    served by granting the Request considers the Town's status as a
    public safety licensee along with the Town's statement that it
    "committed no error leading to the situation in which it now finds
    itself."[^26] Specifically, we credit the inherent public interest
    in the Town's use of the radio facilities, authorized under the
    captioned license, to support its provision of services to protect
    the safety of life, health, or property within the Town of Clay. We
    also consider that, based on the record before us, it appears that
    the Town acted in good faith, *i.e.*, it was unaware of a possible
    error in connection with its 1996 grant for more than several years
    after it first received the captioned license. Based on the record
    before us, we find that JPJ has not shown that the public interest
    would be served by commencing a proceeding to modify the Town's
    license as sought in the Request.

# ordering clauses

8.  Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the
    Petition for Reconsideration filed by JPJ Electronic Communications,
    Inc. on July 12, 2000, IS GRANTED IN PART, to the extent indicated
    above, and IS OTHERWISE DENIED.

9.  IT IS FURTHER ORDERED that, pursuant to Sections 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.41 of the Commission's Rules, 47 C.F.R. § 1.41, the
    Request for License Modification filed by JPJ Electronic
    Communication, Inc. on December 23, 1999, IS DENIED.

10. This action is taken pursuant to delegated authority granted under
    the provisions of 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]: JPJ Electronic Communications, Inc. (JPJ), Petition for
    Reconsideration (filed July 12, 2000) (Petition).

[^2]: Letter from Mary Shultz, Chief, Licensing and Technical Analysis
    Branch, Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau, FCC to JPJ Electronic Communications,
    Inc., dated June 12, 2000 (Branch Letter).

[^3]: JPJ Electronic Communication, Inc., Request for License
    Modification (filed December 23, 1999) (Request).

[^4]: Channel 22 is frequency pair 806/851.5375 MHz. *See* 47 C.F.R. §
    90.613.

[^5]: *See* Petition at 1 citing application File No. 9412691818
    (granted under call sign WPHM952).

[^6]: *See* Application File No. D012959 (filed January 10, 1996). *See
    generally* Petition at 1-2.

[^7]: "This license supersedes and replaces previous authorization of
    same date and file number to decrease mobile per cert\[ification\]
    dated 6-11-96. 7-30-96 AMS." (Granted Archive -- WPHM952; Date
    Archived - 08/02/96).

[^8]: *See* Petition at 1.

[^9]: Petition at 2.

[^10]: *Id*.

[^11]: Branch Letter at 1 citing 47 C.F.R. § 1.106 (petitions for
    reconsideration must be filed within thirty days from the date of
    public notice of the Commission action for which reconsideration is
    sought).

[^12]: Petition at 3.

[^13]: *Id.* at 4.

[^14]: Town of Clay, Opposition to Petition for Reconsideration (filed
    July 24, 2000). We note for clarity's sake that the Town expends a
    considerable amount of energy in its Opposition attempting to
    describe the concept of "notice" in administrative law. *See*
    Opposition at 4. The Town should be advised that while it may be
    correct in its assertion that public notice is deemed to be
    effective individual notice for interested parties, the Commission
    does not routinely place Private Land Mobile Radio Service
    applications on public notice, and thus, the Town is incorrect when
    it asserts otherwise.

[^15]: 47 U.S.C. § 405. Section 405 of the Act sets forth the
    requirements that a petitioner must satisfy before we may consider
    the petitioner's pleadings on reconsideration. Section 405 of the
    Act, as implemented by Section 1.106(f) of the Commission's Rules,
    47 C.F.R. § 1.106(f), requires that a petition for reconsideration
    be filed within thirty days of the date of public notice of the
    Commission action.

[^16]: *See, e.g.,* Petition at 3 citing Comtex Communications, Inc.,
    *Order*, 15 FCC Rcd 11,730 (PSPWD, 2000).

[^17]: 47 U.S.C. § 316(a).

[^18]: *See, e.g., License Communications Services, Inc.,* 13 FCC Rcd
    23781, 23794-23795 (1998).

[^19]: *See, e.g.,* Radio Para La Raza, 40 FCC 2d 1102, 1105 ¶ 8 (1973).

[^20]: *See* Danbury Cellular Telephone Company, Inc., 6 FCC Rcd. 4186,
    4188 n.2 (1991).

[^21]: To clarify, while the Request is permissible under Section 1.41,
    on the merits it must overcome the strong public interest in
    preserving the finality of actions.

[^22]: *See* Petition at 2.

[^23]: *See* 47 C.F.R. § 90.631 (1996) (must timely construct and
    operate station or license cancels automatically).

[^24]: While JPJ took assignment of Station WPHM952 in 1998, it cannot
    enlarge the rights assigned to it by\
    Geib, who apparently did not file any pleading to challenge the
    Town's license.

[^25]: *See* Application File No. 9709A006937.

[^26]: Town of Clay, Opposition to Request for License Revocation, 4
    (filed January 18, 2000).