Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of Applications of | *  | FCC File Nos.                |
|                                  | *) | 0001055385-0001055386,       |
| BRITZ FERTILIZERS INC., JOHN     | ** |                              |
| PEREZ AND SONS, DELTA CONTAINER  |    | 0001055390-0001055397        |
| CORP, RICH EDWARDS, TODD JOB,    | *  |                              |
| MANNA RANCH INC. D/B/A ACAMPO AG | *) |                              |
| SERVICES, CALIFORNIA WASTE       | ** |                              |
| RECOVERY SYSTEM, BILL STOKES, JJ |    |                              |
| RIOS FARM SERVICES INC., JOSEPH  | *  |                              |
| BEELER AND RONALD SIVERIA D/B/A  | *) |                              |
| J.R. LASER FINISHING             | ** |                              |
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| For 900 MHz Trunked Business     | *  |                              |
| Station Licenses in California   | *) |                              |
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+----------------------------------+----+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted: March 25, 2004 Released: April 14, 2004**

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

1.  On May 9, 2003, Britz Fertilizer Inc., John Perez and Sons, Delta
    Container Corp., Rich Edwards, Todd Job, Manna Ranch Inc. d/b/a
    Acampo AG Services, California Waste Recovery System, Bill Stokes,
    JJ Rios Farm Services Inc., Joseph Beeler and Ronald Siveria d/b/a
    J.R. Laser Finishing (collectively "Applicants") filed requests for
    reconsideration ("Petitions")[^1] of the dismissals of their
    respective applications to operate on various 900 MHz frequencies
    ("Dismissals").[^2] Applicants asked that the Dismissals be reversed
    and their license applications reinstated.[^3] They further
    requested that their respective applications be returned to permit
    correction of their defects.[^4] For the reasons set forth below, we
    deny the Petitions.

2.  On October 10, 2002, Applicants filed their respective license
    applications to operate on certain private land mobile radio channel
    pairs available for Business use in the 900 MHz frequency band, for
    the purpose of coordinating their individual business
    activities.[^5] Between April 9 and April 11, 2002**,** the
    Licensing and Technical Analysis Branch (LTAB), of the former Public
    Safety and Private Wireless Division, of the Wireless
    Telecommunications Bureau (Bureau)[^6] dismissed the subject
    applications[^7] on the basis that operations from certain locations
    of all of the requested 900 MHz frequency pairs[^8] would be less
    than seventy miles (113 km) from the transmitter site of certain
    co-channel stations.[^9] LTAB apprised the Applicants that Section
    90.621(b) of the Commission's Rules requires license applicants
    desiring to operate on 900 MHz channels at distances less than
    seventy miles from co-channel facilities to submit with their
    applications either a waiver request[^10] or a letter of consent
    from each licensee operating a constructed and operational station
    within the seventy miles.[^11] The Applicants were further informed
    that each application that proposes short-spacing by letter of
    consent is required to include a letter(s) that certifies that the
    consenting licensee's facilities are constructed and
    operational,[^12] and a certificate of service indicating that a
    copy of the application has been served on the consenting
    licensee.[^13] Since the consent letters provided by the Applicants
    did not certify that the consenting stations were constructed and
    operational and no certificate of service was provided, LTAB found
    the applications defective and dismissed them.[^14] Applicants then
    filed the petitions seeking reconsideration of that action.

3.  In the Petitions, the Applicants submit that the applications, as
    originally filed, comply substantially with the Commission's
    requirements and, thus, the actions necessary to cure their defects
    are minor and can be easily accomplished.[^15] We disagree. First,
    the Applicants must provide certificates of service indicating that
    all concurring co-channel licensees have been served with an actual
    copy of the subject application.[^16] Further, the letters of
    concurrence must not only certify that the system of the concurring
    licensee is constructed and fully operational, but, pursuant to the
    provisions of Section 90.621(b)(5) of the Commission's Rules, the
    consent letters must indicate that the Applicants and each
    co-channel licensee agree to accept any interference resulting from
    the reduced separation between their systems.[^17] The Applicants
    failed to meet this mandate as well. Moreover, certain letters of
    concurrence were missing in their entirety.[^18] Contrary to the
    Applicants' view, the defects in their applications are not minor
    and may or may not be easily cured. While short-spacing of stations
    serves the purposes of spectrum efficiency and allows more licensees
    to conduct operations than would otherwise be possible, the consent
    procedure protects the operations of previously licensed co-channel
    stations from harmful interference while permitting flexibility in
    the granting of additional licenses, thus serving the public
    interest. Consequently, the requirements governing letters of
    concurrence must be carefully observed.

4.  While it may be more convenient from the Applicants' perspective,
    for their applications to be returned rather than dismissed,[^19] it
    is neither in the best interests of other license applicants nor the
    Commission's processes. When an application is significantly
    defective, dismissal without prejudice serves the regulatory
    purposes of administrative efficiency and fairness to other
    applicants.[^20] This enables the filing of complete and accurate
    license applications by other applicants and, thus, serves the
    public interest.[^21] Given that the subject applications were not
    dismissed with prejudice, the Applicants are able to file new,
    complete applications and seeking the same authorizations, should
    they so desire.

5.  Based upon our review of the record before us, we are not persuaded
    by the Applicants' argument that they are being treated unfairly
    because short-spaced private multiple address system (MAS)
    applications with defective consent letters have been returned,
    while short-spaced private land mobile radio (PLMR) applications
    with defective consent letters are dismissed.[^22] Although both MAS
    and PLMR services permit stations to be short-spaced if letters of
    concurrence are submitted, the established criteria for each differ.
    By way of example, pursuant to Section 101.105(c)(3)(ii) of the
    Commission's Rules, a MAS applicant is to submit an engineering
    analysis to show the coordination of the proposed facility with
    existing systems located closer than the required separation
    standard, and a statement that all the parties accept the level of
    interference calculated in such analysis.[^23] In contrast, no
    engineering analysis is required of a PLMR applicant by Section
    90.621(b)(5) of the Commission's Rules. Rather, a decision
    permitting short-spacing of private land mobile radio stations under
    this provision may be based solely on the presence of consent
    letters and not on a technical study of interference potential, as
    is required of MAS applicants.[^24] In PLMR situations, co-channel
    licensees and the applicant must consent to "any interference" that
    results from the proposed operation; whereas, in MAS cases,
    co-channel licensees and the applicant need only consent to the
    level of interference calculated by the engineering analysis. In
    view of these significant distinctions, we believe that it is both
    reasonable and consistent with the applicable rules for LTAB to
    process these two categories of applications differently.

6.  We also conclude that Green Country Mobilephone v. FCC (*Green
    Country*),[^25] cited by Applicants' as justification for
    reconsideration of the Dismissals, is inapposite to the instant
    situation. The Court in *Green Country* held that the Commission had
    abused its discretion in refusing to grant waiver of a deadline for
    filing applications since it had inconsistently applied the
    rule.[^26] First, Green Country involved a procedural matter, while
    the instant case involves a substantive one. Second, short- spaced
    PLMR applications with deficient consent letters[^27] or without the
    requisite consent letters[^28] are routinely dismissed. Thus,
    similar cases are treated similarly in compliance with the court's
    holding.[^29] Third, as discussed *supra*, it is reasonable to
    distinguish between PLMR and MAS applicants because the requirements
    for short spacing in the two services materially differ.
    Consequently, we affirm LTAB's decision and deny the reconsideration
    requests.

7.  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 Sections 1.106 and 90.621 of the Commission's Rules, 47 C.F.R.
    §§ 1.106, 90.621, the Petitions for Reconsideration of Application
    Dismissal filed by Britz Fertilizer Inc., John Perez and Sons, Delta
    Container Corp., Rich Edwards, Todd Job, Manna Ranch Inc. d/b/a
    Acampo AG Services, California Waste Recovery System, Bill Stokes,
    JJ Rios Farm Services Inc., Joseph Beeler and Ronald Siveria d/b/a
    J.R. Laser Finishing on May 9, 2003, ARE DENIED, as indicated
    herein.

8.  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 Critical Infrastructure Division

Wireless Telecommunications Bureau

[^1]: *See* Britz Fertilizer Inc. (Britz), Petition for Reconsideration
    of Application Dismissal (filed May 9, 2003); John Perez and Sons
    (Perez) Petition for Reconsideration of Application Dismissal (filed
    May 9, 2003); Delta Container Corp. (Delta) Petition for
    Reconsideration of Application Dismissal (filed May 9, 2003); Rich
    Edwards (Edwards) Petition for Reconsideration of Application
    Dismissal (filed May 9, 2003); Todd Job (Job) Petition for
    Reconsideration of Application Dismissal (filed May 9, 2003); Manna
    Ranch Inc. d/b/a Acampo AG Services (Acampo) Petition for
    Reconsideration of Application Dismissal (filed May 9, 2003);
    California Waste Recovery System (California Waste) Petition for
    Reconsideration of Application Dismissal (filed May 9, 2003); Bill
    Stokes (Stokes) Petition for Reconsideration of Application
    Dismissal (filed May 9, 2003); JJ Rios Farm Services Inc. (Rios),
    Petition for Reconsideration of Application Dismissal (filed May 9,
    2003); Joseph Beeler and Ronald Siveria d/b/a J.R. Laser Finishing
    (Laser) Petition for Reconsideration of Application Dismissal (filed
    Jan. 7, 2003) ("Petitions").

[^2]: *See* Britz Automated Dismissal Letter, Ref. Number 1814396,
    effective April 9, 2002, generated April 10, 2003; Perez Automated
    Dismissal Letter, Ref. Number 1817669, effective April 11, 2002,
    generated April 14, 2003; Delta Automated Dismissal Letter, Ref.
    Number 1817665, effective April 11, 2002, generated April 14, 2003;
    Edwards Automated Dismissal Letter, Ref. Number 1817666, effective
    April 11, 2002, generated April 14, 2003; Job Automated Dismissal
    Letter, Ref. Number 1817668, effective April 11, 2002, generated
    April 14, 2003; Acampo Automated Dismissal Letter, Ref. Number
    1817671, effective April 11, 2002, generated April 14, 2003;
    California Waste Automated Dismissal Letter, Ref. Number 1814397,
    effective April 9, 2003, generated April 10, 2003; Stokes Automated
    Dismissal Letter, Ref. Number 1817672, effective April 11, 2002,
    generated April 14, 2003; Rios Automated Dismissal Letter, Ref.
    Number 1817667, effective April 11, 2002, generated April 14, 2003;
    and Laser Automated Dismissal Letter, Ref. Number 1817670, effective
    April 11, 2002, generated April 14, 2003 ("Dismissals").

[^3]: Petitions at 2.

[^4]: *Id.*

[^5]: *See e.g.,* Britz FCC Application File No. 0001055385 (filed for
    the purpose of directing the sales and distribution of fertilizers);
    Perez FCC Application File No. 0001055386 (filed for the purpose of
    coordinating the activities of a trucking company); California Waste
    FCC Application File No. 0001055394 (filed for the purpose of
    coordinating trash and recycling activities).

[^6]: The Commission reorganized the (Bureau), effective November 13,
    2003, and the relevant duties of the Public Safety and Private
    Wireless Division were assumed by the Public Safety and Critical
    Infrastructure Division. *See* Reorganization of the Wireless
    Telecommunications Bureau, *Order*, 18 FCC Rcd 25414 ¶ 2 (2003).

[^7]: Dismissals at 1.

[^8]: The requested frequency pairs are as follows: 896/935.2375 MHz,
    896/935.9125 MHz, 900/939.6500 MHz, and 900/939.6875. *See* *e.g.,*
    Delta FCC Application File No. 0001055390; Edwards FCC Application
    File No. 0001055391.

[^9]: These co-channel stations are as follows: Stations
    WPUA912, KNNQ620, WNQQ810, WPOX855, WPRU308, and WPWG329. Use of
    frequency: 896/935.9125 MHz from location 1 would be short-spaced to
    Station WPUA912, licensed to Applied Materials (Applied);
    900/939.6500 MHz from location 1 would be short-spaced to Station
    KNNQ620, licensed to Advanced Micro Device (AMD), and to Station
    WNQQ810, licensed to Shell Communications (Shell); 900/939.6875 MHz
    from location 1 would be short-spaced to Station KNNQ620, licensed
    to AMD, and to Station WNQQ810, licensed to Shell; 896/935.2375 MHz
    from location 6 would be short-spaced to Station WPOX855, licensed
    to A&A Transport (A&A), and Station WNQQ810, licensed to Shell;
    896/935.9125 MHz from location 7 would be short-spaced to Station
    WPRU308, licensed to Griffin Wireless Services (Griffin);
    896/935.2375 MHz from location 8 would be short-spaced to Station
    WNQQ810, licensed to Shell and to Station WPWG329, licensed to
    Aeronautical Radio (AR).

     

[^10]: *See* 47 C.F.R. § 90.621(b)(4).

[^11]: *See* 47 C.F.R. § 90.621(b)(5).

[^12]: 47 C.F.R. § 90.621(b)(5) also requires that the letters of
    concurrence indicate that an applicant and each co-channel licensee
    agree to accept any interference resulting from the reduced
    separation between their systems.

[^13]: Dismissals at 1.

[^14]: *Id.*

[^15]: Petitions at 2.

[^16]: Applicants submit that they have undertaken steps necessary to
    ensure that the consent letters include the proper certification of
    station construction. *Id.*

[^17]: *See* 21^st^ Century Wireless Group, Inc., *Order on
    Reconsideration*, 17 FCC Rcd 8260, 8261 ¶ 4 (WTB PSPWD 2002), Nextel
    Communications, Inc., *Order*, 16 FCC Rcd 7892, 7898 ¶ 12 (WTB CWD
    2001), Hawaiian Wireless Partners, *Order*, 11 FCC Rcd 21192, 21194
    n.11 (WTB 1996).

[^18]: Consent letters were received from the following: Applied,
    licensee of Station WPUA912, for use of 896/935.9125 MHz; A&A,
    licensee of Station WPOX855, for use of 896/935.2375 MHz; Shell,
    licensee of Station WNQQ810, for use of 896/935.2375 MHz,
    900/939.6500 MHz and 900/939.6875 MHz; and AMD, licensee of Station
    KNNQ620, for use of 939.6875 MHz. *See* FCC File Nos.
    0001055385-0001055386, 0001055390-0001055397, Attachment List.
    However, additional letters of concurrence were needed from the
    following: AMD, licensee of Station KNNQ620 (for use of 900/939.6500
    MHz); Griffin, licensee of Station WPRU308 (for use of 896/935.9125
    MHz); and AR, licensee of Station WPWG329 (for use of 896/935.2375
    MHz).

     

[^19]: Petitions at 2*.*

[^20]: *See* Interstate Consolidation, Inc., *Memorandum Opinion and
    Order*, 15 FCC Rcd 3330, 3335 ¶ 11 (2000).

[^21]: *See generally*, 47 U.S.C. § 154(j) (Commission may conduct its
    proceedings in such manner as will best conduce to the proper
    dispatch of business and to the ends of justice).

[^22]: In support of this contention, Applicants cite MAS Application
    File No. 0001044232, filed by the City of Southlake, Texas, in which
    Southlake was given time by the Commission to rectify the
    insufficiencies of its short- spacing agreements. *See also*
    Petitions at 2-3.

[^23]: 47 C.F.R. § 101.105(c)(3)(ii).

[^24]: *See* 47 C.F.R. § 90.621(b)(5).

[^25]: 765 F.2d 235 (D.C. Cir. 1985). *See* Petitions at 4.

[^26]: *Id.* at 237.

[^27]: *See e.g.,* ConocoPhillips Communications Inc., *Order*, DA
    03-4079, ¶ 3, n. 14 (WTB PSCID 2003).

[^28]: *See e.g.* White Eagle Concrete, Inc., *Order on
    Reconsideration*, 18 FCC Rcd 15172, 15173 ¶ 4 (WTB PSPWD 2003).

[^29]: 765 F.2d at 237.