**Before the**

##### [Federal Communications Commission]{.smallcaps}

##### Washington, D.C. 20554

In the Matter of License of )

)

**COMTEX COMMUNICATIONS, INC.** ) File No. 98-2296 )

Licensee of Special Industrial Radio Service )

Station WPKR712, Red Oak, Texas )

#### ORDER 

**Adopted: June 28, 2000 Released: July 3, 2000**

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

**I. INTRODUCTION**

1.  In this Order, we notify Comtex Communications, Inc. ("Comtex"),
    licensee of Special Industrial Radio Service (SIRS) Station WPKR712,
    Red Oak, Texas, of our intention to modify its license for Station
    WPKR712 to specify a reduction of its authorized loading to
    fifty-five 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").

**II. BACKGROUND**

2.  Comtex is authorized to operate Station WPKR712 with up to ninety
    mobile units on the frequency pair 483.4625/486.4625 MHz in the area
    of Red Oak, Texas. This amount is the maximum loading permissible
    for stations in the SIRS in the 470-512 MHz band. In 1997, Tufco was
    the licensee of SIRS Station WNBF444. Tufco was authorized to
    operate Station WNBF44 with up to thirty-five mobile units on the
    same frequency pair in the same geographic location. On November 26,
    1997, we granted an application[^1] seeking FCC consent to
    assignment of the license for Station WNBF444 from Tufco to JRJ
    Paving, Inc. ("JRJ Paving"). The application was purportedly signed
    on behalf of Tufco by an individual named "Rene D. Granos," who was
    identified in the application as a Vice President of Tufco.[^2] In
    fact, however, the evidence now before us indicates that Tufco never
    authorized the filing of an application to assign its license; there
    has never been a "Rene D. Granos" associated with Tufco; and, Tufco
    has continuously operated on the frequency pair.[^3]

3.  Some eight months later, on July 20, 1998, we granted another
    application for assignment of the Station WNBF444 license from JRJ
    Paving to Comtex. 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 Station WPKR712 call sign. Both call signs 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.

4.  Tufco states that it learned in late July 1998 from a radio
    consultant that it no longer held a license for Station WNBF444.[^4]
    Tufco had been unaware of the assignment of the Station WNBF444
    license to JRJ Paving because the Commission does not provide public
    notice of the grant of assignment applications in the PLMRS. On
    September 2, 1998, Tufco submitted a written complaint to the former
    Enforcement and Consumer Information Division of the Wireless
    Telecommunications Bureau.[^5] Thereafter, Tufco requested and
    received special temporary authority ("STA") to continue operating
    on the frequency pair. On October 13, 1998, Tufco filed an
    application to renew its license for Station WNBF444.

5.  On November 12, 1998, Comtex requested reconsideration of the staff
    action grant of the STA, and filed a Petition to Dismiss or Deny
    Tufco's renewal application.[^6] During an investigation into this
    matter, the Commission staff, among other things, requested Comtex
    to provide information regarding the assignments of license for
    Station WNBF444 from Tufco to JRJ Paving and from JRJ Paving to
    Comtex.[^7] Comtex denies having any knowledge of the circumstances
    underlying the assignment from Tufco to JRJ Paving.[^8]

**IV. DISCUSSION**

6.  Comtex makes no attempt to rebut Tufco's showing that it never
    authorized the assignment of its license to JRJ Paving. Instead,
    Comtex argues that the Commission does not have statutory authority
    to take remedial action at this time because Tufco did not interpose
    a timely challenge to the assignment of the license to Comtex and
    its concurrent cancellation.[^9] We reject Comtex's argument. The
    fact that Tufco did not file a petition for reconsideration within
    thirty days of the Comtex grant does not limit the Commission's
    authority to modify or to revoke a license. Section 316(a) of the
    Communications Act of 1934, as amended, 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."[^10] 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.[^11]

7.  In light of Tufco's undisputed showing that it never authorized the
    assignment of its license for Station WNBF444, and that the person
    who purportedly signed the application on Tufco's behalf had no
    relationship with Tufco, we believe the public interest would be
    served by reinstating Tufco's license for Station WNBF444. Indeed,
    we have no information that "Rene D. Granos" exists. Such
    reinstatement requires us to modify Comtex's license for Station
    WPKR712 by reducing its authorized loading from ninety mobile units
    to fifty-five. The latter number of mobile units is what Comtex was
    authorized to operate with prior to cancellation of the Station
    WNBF444 authorization.

8.  In accordance with Section 1.87(a) of the Commission's Rules, we
    will not issue a modification order until Comtex has received notice
    of our proposed action and has had an opportunity to interpose a
    protest.[^12] To protest the modification, Comtex must, within
    thirty days of the release date of this Order, submit a written
    statement with sufficient evidence to show that the modification
    would not be in the public interest. The protest must be filed with
    the Office of the Secretary, Federal Communications Commission, 445
    Twelfth Street, S.W., Room TW-A325, Washington, D.C. 20554. If no
    protest is filed, the right to protest will be deemed to have been
    waived, and Comtex will be deemed to have consented to the
    modification.

**IV. ORDERING CLAUSES**

9.  Accordingly, IT IS PROPOSED that, pursuant to Sections 4(i) and
    316(a) of the Communications Act of 1934, 47 U.S.C. §§ 154(i) and
    316, and Section 1.87 of the Commission's rules, 47 C.F.R. § 1.87,
    the license for Private Land Mobile Radio Services Station WPKR712,
    held by Comtex Communications, Inc. WILL BE MODIFIED to reduce its
    authorized loading to fifty-five mobiles.

10. 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 19^th^ Street, N.W., Suite 500, Washington, DC
    20036.

###### FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry

> Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: 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* Atkins Declaration, pp. 1-2.

[^4]: Atkins Declaration, p. 1.

[^5]: *See* Letter dated August 28, 1998 from Bennie L. Atkins to Sharon
    Bowers, Enforcement and Consumer Information Division.

[^6]: Opposition and reply pleadings were filed by Tufco and Comtex.

[^7]: Letter from Gary P. Schonman, Chief Compliance and Litigation
    Branch to Comtex Communications, Inc. dated July 7, 1999.

[^8]: Letter from Pat Gardenhire, President, Comtex Communications,
    Inc., to William Knowles Kellett-Esq., Enforcement and Consumer
    Information Division, Wireless Telecommunications Bureau, dated July
    9, 1999, p. 1.

[^9]: Comtex Reply to Opposition to Petition for Reconsideration filed
    December 14, 1998 at 1.

[^10]: 47 U.S.C. § 316(a).

[^11]: *See, e.g., License Communications Services, Inc.,* 13 FCC Rcd
    23781, 23794-23795 (1998).

[^12]: 47 U.S.C. § 1.87(a).