**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. D128447             |
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| EASTERN MUNICIPAL                | ) |                              |
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| WATER DISTRICT                   | * |                              |
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| Licensee of Station WNVF985      | * |                              |
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| Riverside County, California     | ) |                              |
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**ORDER ON RECONSIDERATION**

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

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

# 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.

# BACKGROUND

2.  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]

3.  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]

# DISCUSSION

4.  *[2000 Petition]{.underline}*. 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.

5.  *[1999 Petition]{.underline}*. 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.

6.  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.

7.  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.

# ORDERING CLAUSES

8.  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.

9.  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.

10. 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]: 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.