**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | FCC File Nos. A031088,       |
|                                  | * | A031089                      |
| ALAMEDA-CONTRA COSTA             | ) |                              |
|                                  | * | FCC File No. A024182         |
| TRANSIT DISTRICT                 | * |                              |
|                                  |   | FCC File No. D115306         |
| Private Land Mobile Stations     | * |                              |
| KBY746, WFS916, and KM8643       | * | FCC File No. A027127         |
|                                  | ) |                              |
| RMS SAN FRANCISCO                | * |                              |
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| Private Land Mobile Station      |   |                              |
| WPML959                          | * |                              |
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| LESTER ETTINGER                  | ) |                              |
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| JOHN H. GRONEMEIER               | * |                              |
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+----------------------------------+---+------------------------------+

**ORDER**

**Adopted: December 7, 2000 Released: December 11, 2000**

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

# Introduction

1.  On December 16, 1998, Alameda-Contra Costa Transit District (AC
    Transit) filed a Petition for Emergency Relief (Petition).[^1] AC
    Transit alleges that we erroneously canceled its licenses for
    Stations KBY756, WFS916, and KM8643. It requests that we reinstate
    the licenses, dismiss the pending applications for the same
    frequencies, and cancel licenses already granted for those
    frequencies. For the reasons set forth herein, the Petition is
    dismissed in part.

# background

2.  AC Transit is a public transportation district that provides bus
    service to over 390 square miles in Alameda County and Contra Costa
    County, California, and from those areas across the San
    Francisco-Oakland Bay Bridge to the City of San Francisco.[^2] AC
    Transit operates 800 vehicles and carries approximately 230,000
    passengers a day, including 60,000 school children.[^3] AC Transit
    held licenses for a land mobile radio system, including Stations
    KBY756, WFS916, and KM8643. All three stations were authorized to
    use the same six frequency pairs in the 470-512 MHz band:
    490/493.4625, 490/493.5125, 490/493.5625, 490/493.6125, 490/493.6625
    and 490/493.7125 MHz.

3.  On September 29, 1995, AC Transit filed renewal of license
    applications for Stations WFS916 and KM8643, which were scheduled to
    expire on October 2, 1995.[^4] On October 23, 1995, the applications
    were returned to AC Transit for additional information.[^5] AC
    Transit resubmitted the applications, with the requested
    information, on March 7, 1996.[^6] AC Transit states that it
    received no further correspondence regarding these licenses.[^7] On
    June 5, 1996, the licenses were deleted from the Commission's
    licensing databases.[^8]

4.  On May 5, 1997, AC Transit filed an application to consolidate the
    licenses for Stations WFS916 and KM8643 under the license for
    Station KBY756.[^9] AC Transit also sought to renew the license for
    Station KBY756 at that time, even though it was not scheduled to
    expire until March 18, 1998.[^10] Our records indicate that this
    application was returned on October 20, 1997, with a request that AC
    Transit clarify whether a seventh frequency from an unrelated AC
    Transit license, 490.7625 MHz, should be included in the
    consolidation. AC Transit states, however, that it never received
    the October 20, 1997, return notice, and therefore never
    responded.[^11] AC Transit also states that it never received a
    renewal notice for Station KBY756.[^12] The license for Station
    KBY756 expired on March 18, 1998, and was later deleted from the
    Commission's licensing database.

5.  With Station KBY756 no longer in the Commission's database, other
    parties applied for licenses on the subject six frequency pairs. On
    September 14, 1998, a license was issued to RMS San Francisco (RMS),
    as Station WMPL959, for frequency pairs 490/493.5125 and
    490/493.7125 MHz. On September 25, 1998, John H. Gronemeier
    (Gronemeier) filed an application for frequency pairs 490/493.5125,
    490/493.5625, 490/493.6125, 490/493.6625 and 490/493.7125 MHz.[^13]
    On October 15, 1998, Lester Ettinger (Ettinger) filed an application
    for frequency pair 490/493.4625 MHz.[^14]

6.  Subsequently, AC Transit began to experience substantial
    interference on 490/493.5125 MHz, and also was contacted by RMS San
    Francisco (RMS) about interference RMS was receiving from AC
    Transit.[^15] Upon investigation, AC Transit learned that the
    licenses for its Stations KBY756, WFS916, and KM8643 had
    expired.[^16]

7.  On December 11, 1998, AC Transit requested that the Public Safety
    and Private Wireless Division, Licensing and Technical Analysis
    Branch (Branch) suspend processing of the pending Ettinger and
    Gronemeier applications, pending its submission of additional
    information.[^17] On December 16, 1998, AC Transit requested special
    temporary authority to continue its previously licensed
    operations.[^18] On December 16, 1998, AC Transit also filed the
    Petition. AC Transit also filed applications to reauthorize channels
    490/493.4625, 490/493.5625. 490/493.6125, 490/493.6625,[^19]
    490/493.5125 and 490/493.7125 MHz.[^20]

8.  The Branch dismissed the Ettinger application on December 12,
    1998[^21] because the proposed site was too close to a protected
    television station.[^22] Gronemeier's application was dismissed on
    June 4, 1999,[^23] for failure to satisfy applicable loading
    requirements.[^24] On June 9, 1999, the Branch granted the Petition
    in part and denied it in part. Specifically, the Branch informed AC
    Transit that it would grant its application with respect to the
    channels it requested which were not already licensed to RMS:
    490/493.4625, 490/493.5625, 490/493.6125, and 490/493.6625 MHz.[^25]
    The Branch, concluded, however, that it had no basis or
    justification to revoke, cancel, or modify RMS's license.[^26] The
    Branch decided that the Petition was too late to be considered a
    timely-filed petition for reconsideration of the grant to RMS,[^27]
    and therefore dismissed the Petition in part.[^28] On July 2, 1999,
    the Branch, on its own motion, set aside the portion of the June 9,
    1999 letter which dismissed the Petition in part and returned the
    Petition to pending status.[^29] The two RMS channels have since
    been the subject of extensive negotiations. It is our understanding
    that negotiations, however, recently ended unsuccessfully. Thus, the
    portion of the Petition addressing RMS's authorization is still
    pending, and is the subject of this action.

# discussion

9.  As noted above, AC Transit's Petition already has been granted by
    the Branch with respect to frequency pairs 490/493.4625,
    490/493.5625, 490/493.6125 and 490/493.6625 MHz. We now address the
    remainder of the Petition relating to frequency pairs 490/493.5125
    and 490/493.7125 MHz. AC Transit requests that we set aside RMS's
    license for Station WPML959 and relicense AC Transit for frequency
    pairs 490/493.5125 and 490/493.7125 MHz.[^30] AC Transit's Petition
    is essentially a petition for reconsideration of the expiration of
    its licenses on October 2, 1995, and March 18, 1998, and of the
    license grant to RMS on September 14, 1998. Therefore, AC Transit's
    petition should have been filed no later than thirty days after
    public notice of RMS's authorization.[^31] Furthermore, AC Transit
    failed to file a request for a waiver of the Commission's rules to
    accept a late-filed reconsideration petition. AC Transit's December
    16, 1998 Petition therefore is untimely, and is dismissed
    accordingly.

10. Moreover, AC Transit has not set forth sufficient grounds warranting
    grant of the requested relief. AC Transit states that it never
    received any notice from the Commission prior to the expiration of
    its license for Station KBY756 on March 18, 1998, and did not
    receive, by mail, a renewal of license application.[^32] These
    circumstances, however, did not justify AC Transit's failure to
    renew its license. Regardless of whether the renewal notices were
    received, each licensee is responsible for knowing the expiration
    date of its licenses and submitting a renewal of license application
    in a timely manner.[^33] Accordingly, "failure of a licensee to
    receive a \[renewal form\] from the Commission is no excuse for
    failure to file a renewal application."[^34] Consequently, that AC
    Transit allegedly never received the October 27, 1997 application
    return notice[^35] is not a sufficient basis for requiring return of
    the subject channels to AC Transit.

# Conclusion

11. The Branch already granted AC Transit's Petition with respect to
    frequency pairs: 490/493.4625, 490/493.5625, 490/493.6125, and
    490/493.6625. With respect to frequency pairs 490/493.5125 and
    490/493.7125, however, we dismiss the Petition as an untimely
    petition for reconsideration. Moreover, we conclude that AC Transit
    has failed to demonstrate that set aside, revocation or modification
    of RMS's authorization for 490/493.5125 and 490/493.7125 is
    warranted under these circumstances.

# ORdering clauses

12. Accordingly, IT IS ORDERED that pursuant to Section 4(i) of the
    Communications Act of 1934, 47 U.S.C. § 154(i), and Section 1.106 of
    the Commission's Rules, 47 C.F.R. § 1.106, the DISMISSED as it
    relates to the licenses held by RMS San Francisco.

13. IT IS FURTHER ORDERED that the special temporary authorization for
    Alameda-Contra Costa Transit District to operate on 490/493.5125 and
    490/493.7125 MHz is CANCELLED as of thirty days from the release of
    this *Order*. Thus, Alameda-Contra Transit District shall cease
    operation on such frequencies within thirty days from the release of
    this *Order*, unless other arrangements are made with RMS San
    Francisco regarding such operation.

14. 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]: Alameda-Contra Cost Transit District Petition for Emergency Relief
    (filed Dec. 16, 1998) (Petition).

[^2]: *Id*. at 3

[^3]: *Id.*

[^4]: FCC File Nos. R90858, R90859.

[^5]: Application Return Notice (Oct. 23, 1995). The Application Return
    Notice stated, "It appears your mobile call sign was issued wrong.
    Please list the geographical coordinates for the mobile area of
    operation. Please return both applications together for processing."

[^6]: AC Transit stated that the delay in responding was caused by the
    retirement of the employee who handled such matters. Letter from
    Steve Montoya, AC Transit, to FCC (dated Mar. 4, 1996).

[^7]: Petition at 4.

[^8]: Pursuant to 47 C.F.R. § 90.141 (1995), applicants had 60 days to
    resubmit an application which was returned by the Commission.
    Because AC Transit did not respond for six months, the Commission
    could not accept the late filing and deleted the licenses.

[^9]: FCC File No. D079895 (filed May 5, 1997).

[^10]: *Id*.

[^11]: Petition at 5.

[^12]: *Id*. at 6.

[^13]: FCC File No. A027127 (filed Sept. 25, 1998).

[^14]: FCC File No D115306 (filed Oct. 15, 1998).

[^15]: Petition at 3-4.

[^16]: *Id.* at 4.

[^17]: Letter from Robert M. Gurss, Counsel for AC Transit, to Mary M.
    Shultz, FCC (dated Dec. 11, 1998).

[^18]: Letter from Robert Fernandez, AC Transit to Mary M. Shultz, FCC
    (dated Dec. 16, 1998). The request was granted on December 21, 1998.

[^19]: FCC File No. A031088 (filed Dec. 22, 1998).

[^20]: FCC File No. A031089 (filed Dec. 14, 1998)).

[^21]: Ettinger's application was dismissed pursuant to a computer
    generated letter dated December 12, 1998 (FCC File No. D115306).

[^22]: *See* 47 C.F.R. § 90.307.

[^23]: Letter from Terry Fishel, Deputy Chief, Licensing and Technical
    Analysis Branch, Commercial Wireless Division, to John H. Gronemeier
    (dated June 4, 1999).

[^24]: *See* 47 C.F.R. § 90.313.

[^25]: Letter from Mary Shultz, Chief, Licensing and Technical Analysis
    Branch, Public Safety and Private Wireless Division, to Robert M.
    Gurss, Counsel for AC Transit (June 9, 1999) (Branch Letter). The
    authorizations were granted on June 15, 1999.

[^26]: *Id*. at 1.

[^27]: *See* 47 C.F.R. § 1.106(f).

[^28]: Branch Letter at 1.

[^29]: Letter from Mary Shultz, Chief, Licensing and Technical Analysis
    Branch, Public Safety and Private Wireless Division, to Robert M.
    Gurss, Counsel for AC Transit (July 2, 1999).

[^30]: Petition at 7.

[^31]: *See* 47 C.F.R. § 1.106(f).

[^32]: Petition at 6.

[^33]: *See* Tampa Electric Company, *Order*, 14 FCC Rcd 21344, 21348 ¶
    9 (WTB PSPWD 1999) (Tampa Electric) (citing, Daniel R. Goodman, Dr.
    Robert Chan, Petition for Waiver of Section 90.633(c) and 1.102 of
    the Commission's Rules, *Memorandum Opinion and Order on
    Reconsideration*, 13 FCC Rcd 21944, 21972-73 ¶ 53 (1998) (Goodman)).

[^34]: Tampa Electric, 14 FCC Rcd at 21349 ¶ 9 (citing Goodman, 13 FCC
    Rcd at 21973 ¶ 53; Nevada Power Company, *Order on Reconsideration*,
    14 FCC Rcd 17812, 17815 ¶ 5 (WTB PSPWD 1999)).

[^35]: Petition at 5.