Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of Application of  | * | File No. A007179             |
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| ADF COMMUNICATIONS, INC.         | ) |                              |
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| Application for a New 470 MHz    | ) |                              |
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| Radio Station in Boston,         | ) |                              |
| Massachusetts                    | \ |                              |
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|                                  | ) |                              |
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|                                  | * |                              |
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+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

Adopted: July 18, 2000 Released: July 27, 2000

By the Deputy Chief, Wireless Telecommunications Bureau:

I.  **INTRODUCTION**

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1.  The Bureau has before it a petition for reconsideration filed by ADF
    Communications, Inc. (ADF) on November 4, 1999.[^1] ADF requests
    reconsideration of an October 5, 1999, action by the Deputy Chief of
    the Wireless Telecommunications Bureau (Bureau). In such action, the
    Bureau granted a petition for reconsideration filed by the Police
    Department of the City of Revere, Massachusetts (Revere Police
    Department), and authorized the Revere Police Department to continue
    use frequency pair 470.8625/473.8625 MHz, in the Boston,
    Massachusetts area for public safety communications.[^2] For the
    reasons discussed below, we affirm the *1999 MO&O* and deny the ADF
    Petition.

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II. **BACKGROUND**

    2\. The Revere Police Department held an authorization to operate
    Station KCZ967 on an exclusive basis on frequency pair
    470.8625/473.8625 MHz for a period in excess of twenty years. On
    August 29, 1997, the station authorization was automatically purged
    from the FCC's licensing database, because the Bureau had not
    received a timely-filed renewal application as of that date. On
    September 9, 1997, the Revere Police Department filed a renewal
    application with the FCC,[^3] followed by a request for special
    temporary authority (STA) to continue to operate on frequency pair
    470.8625/473.8625 MHz.[^4] The Bureau granted the STA request,[^5]
    and returned the renewal application to the Revere Police
    Department, on the basis that it had been filed after the thirty-day
    reinstatement period had lapsed.[^6] The return notification
    instructed the Revere Police Department to file a FCC Form 600
    application to obtain a new station license, and to obtain the
    necessary frequency coordination associated with such application.
    ADF subsequently filed an application on September 17, 1997, which
    was placed on public notice on September 23, 1997.[^7] ADF's
    application proposed to provide commercial radio service in the same
    geographic area and on the same frequencies as those used by the
    Revere Police Department for public safety communications. Within
    thirty days of release of the September 23, 1997, Public Notice, the
    Revere Police Department filed an application with from the
    Associated Public Safety Communications Officers, Inc. (APCO) [^8]
    for frequency pair 470.8625/473.8625 MHz, which APCO forwarded to
    the FCC.[^9] The application was later returned to APCO as
    unacceptable for filing, on the basis that the location proposed by
    the Revere Police Department was only 2.96 kilometers from the
    location proposed by ADF.[^10]

    3\. On November 19, 1997, ADF's application was granted under call
    sign WPLQ307, appearing on a Public Notice dated November 25, 1997,
    with a thirty-day reconsideration period ending on December 26,
    1997.[^11] Prior to the expiration of the thirty-day reconsideration
    period, the Revere Police Department filed its application for a new
    license directly with the Bureau.[^12] Also within the thirty-day
    reconsideration period, the Revere Police Department filed a letter
    opposing ADF's authorization and requesting authority to continue
    operating on the frequency pair.[^13] The Bureau released a Public
    Notice announcing that it was treating the Revere Letter as a
    petition for reconsideration of the November 19, 1997, action
    authorizing ADF to operate on the subject frequency.[^14] In
    response to the Revere letter, ADF filed an Opposition and
    subsequent supplements.[^15] To complete the record, the

    Bureau sent a letter to the Revere Police Department requesting
    additional information regarding its public safety
    communications.[^16]

    4\. On October 5, 1999, the Deputy Chief of the Bureau granted the
    Revere Petition on the basis that the Revere Police Department had
    explained the public safety need for the subject frequency pair, and
    demonstrated that unique circumstances were involved;, further, the
    Bureau found that irreparable injury would result if the Revere
    Police Department were to lose exclusive access to such
    frequencies.[^17] The *1999 MO&O* noted that the record indicated
    that there were no other public safety frequencies available in the
    Revere Police Department's geographic area.[^18] The Bureau
    concluded that granting the Revere Petition and reinstating the
    Revere Police Department's license to operate Station KCZ967 was
    consistent with the public interest.[^19] In fact, the Bureau
    determined that appreciable and irreparable harm would result if the
    Revere Police Department, serving a city with a population of 43,000
    residents, no longer had exclusive access to the frequency pair it
    had designated as its primary channel for public safety
    communications.[^20] The *1999 MO&O* additionally noted that all
    other radio channels licensed to various departments within the City
    of Revere were inadequate for primary emergency use.[^21]

    5\. On November 4, 1999, ADF filed a petition for reconsideration of
    the *1999 MO&O.* In response to the ADF Petition, the Revere Police
    Department indicated that it forwarded two letters to the Bureau,
    dated May 9, 2000, and June 1, 2000, respectively, in opposition to
    the ADF Petition.[^22] No other pleadings are currently pending
    before us relating to this matter.

    **III. DISCUSSION**

6\. The ADF Petition does not present any new issues or arguments;
rather, it restates previous arguments that ADF set forth in its
Opposition to the Revere Letter. Specifically, the ADF Petition
reiterates ADF's arguments that (1) the Revere Letter cannot be treated
as a petition for reconsideration; (2) service on ADF of the Revere
Letter was insufficient; (3) the Bureau failed to inquire into alleged
improprieties by the frequency coordinator; and (4) the Revere Police
Department had not presented unique circumstances warranting grant of a
waiver.[^23] We believe that these arguments raised in the ADF Petition
were fully addressed in the *1999 MO&O*. For the same reasons stated
therein, we believe that the ADF Petition should be denied.

7\. *Procedural Matters.* First, we will discuss the service of the
Revere Letter on ADF, and the treatment of the Revere Letter as a
petition for reconsideration. We note, as an initial matter, that the
Bureau has delegated authority to waive the Commission's procedural
rules with respect to pleadings.[^24] The Bureau announced its treatment
of the Revere Letter as a petition for reconsideration, by releasing the
Revere Public Notice on February 26, 1998.[^25] The Revere Public Notice
stated that although the Revere Letter had not been served on ADF, it
nonetheless was submitted to the FCC within thirty days of the Public
Notice announcing the grant of ADF's application, authorizing ADF to
operate on the subject frequencies under call sign WPLQ307.[^26] The
Revere Public Notice required the City of Revere to serve a copy of the
Revere Letter on ADF, and to file proof of such service in accordance
with Section 1.47(g) of the Commission's Rules, within three business
days of the date of release of the Public Notice.[^27]

8\. As explained in the *1999 MO&O*, after receiving the Revere Letter
and performing a balancing test of public interest considerations versus
any procedural shortcomings on the part of the Revere Police Department,
the Bureau released the Revere Public Notice, which made the full text
of the Revere Letter and its attachments available for viewing to the
public, and provided interested persons with an opportunity to comment
on the Revere Letter.[^28] The Revere Public Notice also provided ADF
with an opportunity to oppose the Revere Letter, protecting ADF's due
process rights.[^29] ADF argues that it was deprived of its rights,
since it had only received a "portion" of the Revere Letter.[^30] We
disagree. As explained in the 1999 *MO&O*:

We additionally reject ADF's argument that the Revere Police Department
improperly

served ADF, by not serving ADF with the attachments to the Revere
letter. ADF had

been placed on notice by the Revere Police Department of the existence
of the attach-

ments to the Revere letter (the text of the letter minus the eight-page
attachment) in

accordance with the Revere Public Notice. The first page noted that the
Revere Police

Department had "been issued a Special Temporary Authorization
(enclosed)...." The

Revere letter further stated, in paragraph five: "We have also enclosed
one FCC Form

1034G, three FCC Form 574R and three FCC From 574N." ADF knew,
therefore, that

the attachments to the Revere letter consisted of the STA, and various
return notices and

renewal request forms. Thus, ADF could have obtained copies of the
attachments by

contacting the Revere Police Department directly or by viewing them in
the Commission's

Public Reference Room.[^31]

9\. The ADF Petition alleges that the decision to treat the Revere
Letter as a petition for reconsideration is inconsistent with the
Commission's decision in *Houston Mobilfone*.[^32] This decision is
inapposite. *Houston Mobilfone* involved interpretation of a specific
portion of Section 1.106 of the Commission's Rules,[^33] dealing with
whether petitions for reconsideration of hearing designation orders
should be entertained. This issue is not germane to the matters
addressed in the context of this proceeding.

10\. *Frequency Coordination.* Next, we will consider ADF's allegation
that the *1999 MO&O* did not address improprieties that ADF alleges were
made by APCO, an FCC-certified frequency coordinator.[^34] ADF alleges
that the application of the Revere Police Department for the subject
frequencies was "improperly processed," given that it was sent to the
Commission on the day of receipt. We disagree that this fact alone is
indicative that APCO did something wrong. In this regard, we reiterate
our explanation in the *1999* *MO&O*:

In 1986, the Commission modified the procedures by which most of the
frequencies

allocated to the PLMR services are assigned to individual
applicants.[^35] The modified

procedures were set out in the *Report and Order* specifically stating:
"We recognize,

however, that processing in order of receipt does not necessarily lead
to coordinator

actions or disposals in that same order. Some coordinations are more
complicated

than others and therefore require greater time to complete.[^36]
Consequently, we are not

persuaded that filing on the same day is necessarily indicative of an
impropriety."[^37]

Based on the record before us, we are not persuaded that APCO acted
improperly with respect to the Revere Police Department application.

11\. *Waiver Analysis*. Finally, we consider ADF's argument that the
Revere Police Department had not presented unique circumstances,
warranting grant of a waiver.[^38] This argument was fully considered in
the *1999 MO&O*. The *1999 MO&O* relied upon the Commission's
established waiver policy, which allows the grant of a waiver if it is
(a) in the public interest and the underlying purpose of the rule(s)
would be frustrated or not served by application to the present case, or
(b) in view of unique or unusual factual circumstances, application of
the rules(s) would be inequitable, unduly burdensome, or contrary to the
public interest, or the applicant has no reasonable alternative.[^39]

12\. We concluded that the Revere Police Department had shown that grant
of a waiver of the Commission's Rules regarding reinstatement of the
Revere Police Department's authorization was warranted under the second
waiver standard.[^40] Specifically, we found that, in view of the unique
factual circumstances, application of the rules would leave the Revere
Police Department with no reasonable alternative, and would be contrary
to the public interest.[^41] The Bureau cited a 1991 Commission rule
making proceeding, in which the Commission stated that licensees engaged
in public safety activities may not exercise a lesser degree of
diligence in complying with the Commission's renewal procedures, but
wherein the Commission also stated that it will continue to retain
discretion in extraordinary circumstances to waive our
reinstatement/late-filed renewal rules if warranted by particular
circumstances.[^42]

13\. In the *1999* *MO&O*, we fully discussed the uniqueness of the
Revere Police Department's factual circumstances.[^43] We noted, *inter
alia*, the Revere Police Department's 24-hour public safety emergency
use of frequency pair 470.8625/473.8625 MHz.[^44] In this connection,
the *1999 MO&O* stated:

According to Revere, the channel is used extensively around the clock
for the

dispatch of police officers to life-threatening emergencies, felony
crimes in

progress, general law enforcement, civil and domestic disturbances,
medical

emergencies, rescues, assistance to other law enforcement agencies,
traffic and

crowd control, and various public service requirements.[^45]

As a result, we concluded that this matter involves unique factual
circumstances which warrants the exercise of discretion in waiving the
Commission's rules regarding reinstatement.[^46] We also noted that our
decision in the *1999 MO&O* was consistent with the Universal Licensing
System reinstatement treatment of late-filed applications recently
adopted by the Commission, where the Commission stated that its
treatment of late-filed renewal applications should take into
consideration the complete facts and circumstances involved, including
the length of the delay in filing, the performance record of the
licensee, the reasons for the failure to timely file, and the potential
consequences to the public if the license were to terminate.[^47]

14\. In sum, we fully considered ADF's arguments in the *1999 MO&O*, and
determined that the reinstatement of the Revere Police Department's
authorization to operate Station KCZ967 on frequency pair
470.8625/473.8625 MHz was in the public interest. This determination
took into account the Revere Police Department's critical need for the
frequencies. Specifically, we noted that to deny the Revere Police
Department's requested relief would create an emergency situation in
which police, fire and medical units would lose communications service
vital to the health and safety of an entire populous community.[^48]

IV. **CONCLUSION AND ORDERING CLAUSES**

15\. For the reasons stated above, we conclude that the decision set out
in the *1999 MO&O* is in the public interest and is affirmed.
Reinstating the Revere Police Department's authorization to operate
Station KCZ967 was necessary and within our authority.[^49] As explained
above, as well as in the *1999 MO&O*, the situation before us is
extraordinary. The Revere Police Department demonstrated unique
circumstances warranting grant of a waiver of reinstatement. We
addressed and rejected ADF's arguments in the *1999 MO&O* and ADF has
failed to provide any new issues or arguments to persuade us otherwise.
The ADF Petition is therefore denied.

16\. Accordingly, 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 Section 1.106 of the Commission\'s Rules, 47 C.F.R. § 1.106, the
Petition for Reconsideration filed by ADF Communications, Inc. on
November 4, 1999, IS DENIED.

17\. 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

Kathleen O'Brien Ham

Deputy Chief, Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration (Nov. 4, 1999) (ADF Petition).

[^2]: *See* In the Matter of Application of ADF Communications, Inc.,
    *Memorandum Opinion and Order*, 14 FCC Rcd 17,037 (1999) (*1999*
    *MO&O*).

[^3]: *See* FCC File No. R244488 (filed Sept. 9, 1997).

[^4]: *See* Request for Special Temporary Authority (dated Sept. 8, 1997
    & filed Sept. 11, 1997).

[^5]: The STA, with subsequent renewals, authorized the Revere Police
    Department to operate on frequency pair 470.8625/473.8625MHz, under
    call sign WQO519, until Mar. 19, 2000.

[^6]: *See* Renewal Application Return Notice for Private Land Mobile
    and General Mobile Radio Services to the City of Revere (dated Sept.
    12, 1997).

[^7]: Public Notice, Report Number: 1955, Sept. 23, 1997.

[^8]: *Id*. Note: APCO is now named the Association of Public Safety
    Communications Officials-International, Inc.

[^9]: *See* FCC File No. A007659, filed by APCO on behalf of the Revere
    Police Department on Sept. 29, 1997.

[^10]: *See* Application Return Notice for the Private Land Mobile Radio
    Services to APCO (dated Oct. 9, 1997).

[^11]: Public Notice, Report Number: 1964, Nov. 25, 1997.

[^12]: *See* FCC File No. A007659 (filed Dec. 8, 1997).

[^13]: *See* Letter to Michael Regiec, Federal Communications
    Commission, from James V. Russo, former Chief of Police, Revere, MA
    (dated Dec. 4, 1997) (Revere Letter).

[^14]: Public Notice, "Wireless Telecommunications Bureau Announces
    Comment Period on Petition of City of Revere, Massachusetts for
    Reconsideration of Authorization Granted to ADF Communications,
    Inc.," DA 98-225 (released Feb. 26, 1998) (Revere Public Notice).

[^15]: *See* ADF Opposition, filed on Mar. 13, 1998, and two separate
    ADF pleadings, both captioned "Supplement to Opposition," filed on
    Mar. 20, 1998, and Dec. 11, 1998, respectively.

[^16]: *See* Letter to Richard Villiotte, former Solicitor of the City
    of Revere, from John J. Borkowski, former Chief, Policy & Rules
    Branch, Public Safety & Private Wireless Division, Wireless
    Telecommunications Bureau, Federal Communications Commission (dated
    Aug. 5, 1998).

[^17]: *1999* *MO&O* at 7.

[^18]: *Id.*

[^19]: *Id*. at 7-8.

[^20]: *Id*. at 8.

[^21]: *Id.*

[^22]: *See* Letters to Thomas J. Sugrue, Chief, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    Denise DiCarlo, counsel to the Revere Police Department, (dated May
    9, 2000, and June 1, 2000). Both letters indicate that ADF was
    served.

[^23]: ADF Petition at 7-9.

[^24]: 47 C.F.R. § 0.131(a).

[^25]: Public Notice, "Wireless Telecommunications Bureau Announces
    Comment Period on Petition of City of Revere, Massachusetts for
    Reconsideration of Authorization Granted to ADF Communications,
    Inc.," DA 980225 (rel. Feb. 26, 1998) (Revere Public Notice).

[^26]: Revere Public Notice at 1.

[^27]: *Id.* at 2 (*citing* 47 C.F.R. § 1.47(g)).

[^28]: *See* Revere Order at 5.

[^29]: *Id.*

[^30]: ADF Petition at 6.

[^31]: *1999 MO&O* at 5-6.

[^32]: ADF Petition at 5 (*citing* In re Applications of Houston
    Mobilfone, Inc., *Memorandum Opinion and Orde*r, 52 FCC 2d 1009
    (1975)) (*Houston Mobilfone*).

[^33]: 47 C.F.R. § 1.106.

[^34]: ADF Petition at 6.

[^35]: Frequency Coordination in the Private Land Mobile Radio Services,
    *Report and Order*, PR Docket No. 83-737, 103 FCC 2d 1093, 1101,
    para. 18 (1986).

[^36]: *Id*. at 1102, para. 21.

[^37]: *1999 MO&O* at 7.

[^38]: ADF Petition at 7-9.

[^39]: 47 C.F.R. § 1.925(b)(3)(i).

[^40]: *1999 MO&O* at 7.

[^41]: *Id*.

[^42]: *1999 MO&O* at 8 (*citing* Amendment of Parts 1 and 90 of the
    Commission's Rules Concerning the Construction, Licensing, and
    Operation of Private Land Mobile Radio Stations, *Report and Order*,
    6 FCC Rcd 7297, 7301 at para. 20 (1991)).

[^43]: *Id.* at 8.

[^44]: *Id.*

[^45]: *Id.*

[^46]: *Id*.

[^47]: *Id*. at 11-12 (*citing* Amendment of Parts 0, 1, 13, 22, 24, 26,
    27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to
    Facilitate the Development and Use of the Universal Licensing
    System, *Memorandum Opinion and Order* *on Reconsideration*, 14 FCC
    Rcd 11,476, at para. 22 (1999)).

[^48]: *Id*. at 12.

[^49]: 47 U.S.C. §§ 151, 332(a)(1).