**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. D139187             |
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| JEN-SHENN SONG                   | ** |                              |
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| Renewal Application for Station  | *  |                              |
| WNKS326                          | *) |                              |
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| And Request for Waiver of        |    |                              |
| Section 1.949(a)                 | *  |                              |
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| Of the Commission's Rules        | ** |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: March 4, 2002 Released: March 5, 2002**

By the Chief, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau:

# INTRODUCTION

1.  On February 26, 2002, the Commercial Wireless Division's Policy and
    Rules Branch released an order (*February 26 Order*) in the
    above-captioned proceeding in response to a petition for
    reconsideration filed by Jen-Shenn Song (Song) on February 28, 2001
    (Petition).[^1] The order granted Song's petition and established an
    expiration date of February 26, 2003, for Song's license for Station
    WNKS326. It also dismissed the opposition to the Petition
    (Opposition) that Nextel License Holdings 4, Inc. (Nextel) filed on
    March 14, 2001, as untimely filed.[^2] As discussed below, on our
    own motion, we reverse the decision to dismiss the Opposition as
    untimely filed and address the arguments presented. As further
    explained below, however, we affirm our decision to grant Song's
    Petition.

# background

2.  As we explain fully in the *February 26 Order*,[^3] Song was granted
    a five-year license for Station WNKS326 on July 14, 1988,[^4] and
    after constructing facilities for this station, he dismantled them
    and terminated service on April 8, 1992.[^5] Billy J. Rutledge
    (Rutledge) was awarded a dispositive finder's preference on February
    16, 1993, for Station WNKS326 and Song was notified that his license
    had automatically terminated as of that date. Song's petition
    seeking reconsideration of the February 16, 1993 action was denied
    on May 21, 1993,[^6] and he filed an application for review on June
    21, 1993.[^7]

3.  Song filed an application for renewal in July 1993, which was not
    processed because the application for review was still pending at
    the time. On June 17, 1998, Nextel was granted a geographic area
    license that included the spectrum that had been licensed to Song
    under call sign WNKS326 in the Tacoma, Washington area, subject to
    Song's pending application for review. In October 1998, the
    Licensing and Technical Analysis Branch inadvertently put Song's
    July 1993 renewal application back into the processing queue and
    granted the application, extending the expiration date from July
    1998, to February 12, 1999.

4.  On April 8, 1999, the Commission resolved the issues raised in
    Song's application for review by releasing its *Finder's Preference
    Order*. Specifically, the Commission granted Song's application for
    review, denied Rutledge's finder's preference request, and
    reinstated Song's license for WNKS326.[^8] The *Finder's Preference
    Order*, however, did not provide an expiration date or a
    construction deadline for the reinstated license.

5.  Song was out of the country when the Licensing and Technical
    Analysis Branch granted his July 1993 renewal application and the
    Commission released its *Finder's Preference Order*. After returning
    from his business trip, Song found that (1) Rutledge's finder's
    preference request had been denied and Song's license had,
    therefore, been reinstated; and (2) his license automatically
    terminated on February 12, 1999, because of his failure to file a
    timely renewal application. On March 20, 2000, Song submitted an
    application for renewal together with a request for waiver of the
    filing deadline for renewal applications. The waiver request was
    denied and the renewal application dismissed on January 31, 2001.
    Song filed his Petition on February 28, 2001, Nextel filed its
    Opposition on March 14, 2001, and Song filed his reply on March 21,
    2001 (Reply).[^9] In response to the Petition, on February 26, 2002,
    the Policy and Rules Branch released an order that (1) dismissed
    Nextel's Opposition as late-filed; (2) reversed the Licensing and
    Technical Analysis Branch's decision of October 1998, to renew
    Song's license and extend the expiration date to February 12, 1999;
    and (3) established, pursuant to the *Finder's Preference Order*, an
    expiration date as well as a construction deadline of February 26,
    2003, for Song's reinstated license.

# discussion

6.  Although we affirm our decision to grant Song's Petition as provided
    in the *February 26 Order*, we recognize that the decision to
    dismiss Nextel's Opposition as untimely filed was an error. Section
    1.106(g) of the Commission's rules provides that an opposition to a
    petition for reconsideration shall be filed within 10 days after the
    petition is filed.[^10] In the *February 26 Order*, the Policy and
    Rules Branch dismissed the Opposition because Nextel filed the
    Opposition 14 days after the Petition was filed.[^11] Upon
    reconsideration on our own motion,[^12] we reverse that decision
    because Section 1.4(h) of the Commission's rules provides that if a
    document is served on other parties by mail and the filing period
    for a response is 10 days or less, an additional three days,
    excluding holidays, will be allowed to all parties in the
    proceeding.[^13] Song filed his Petition on February 28, 2001,
    creating a ten-day deadline for filing an opposition of March 10,
    2001, which fell on a Saturday. By adding three days to that
    deadline, excluding Sunday, because Song served the document on
    Nextel by first-class mail,[^14] we find that Nextel filed its
    Opposition in a timely manner on March 14, 2001. We now address the
    arguments that Nextel raised in its Opposition. Because we are
    addressing the arguments raised in the Opposition, we will also
    consider Song's arguments raised in his Reply.

7.  Nextel first argues in its Opposition that Song provides no support
    in his Petition for granting the request for waiver that he filed on
    March 20, 2000, of the filing deadline for renewal
    applications.[^15] We do not need to address the issues raised with
    respect to the waiver request because the request is moot. Song
    filed his March 20, 2000 waiver request based on information from
    our licensing database that the license he received pursuant to his
    July 1993 renewal application had terminated on February 12, 1999.
    As explained in the *February 26 Order*, we reversed the action that
    granted Song a renewed license because he was ineligible to file a
    renewal application for Station WNKS326 in July 1993.[^16] We
    therefore do not address issues raised regarding the denial of
    Song's March 20, 2000 waiver request because the February 12, 1999
    expiration date is invalid and, therefore, not a basis for renewal.

8.  Nextel also argues that once Song's license terminated on February
    12, 1999, the spectrum associated with Station WNKS326 reverted to
    Nextel as the geographic area licensee.[^17] We disagree because
    Song's license did not terminate on February 12, 1999; it terminated
    on February 16, 1993, well before Nextel became the geographic area
    licensee. The Commission's rule on spectrum reversion provides that
    "recovered channels in the 800 MHz SMR service will revert
    automatically to the holder of the \[Economic Area\] EA licensee
    within which such channels are included."[^18] This rule applies
    only where there is an existing EA licensee and an incumbent
    licensed on a site-specific basis in the geographic market loses its
    license for failure to comply with Commission rules.[^19] Spectrum
    cannot revert to an EA licensee if no EA licensee exists at the time
    an incumbent loses its license. In the *February 26 Order*, we
    determined that the license granted pursuant to Song's July 1993
    renewal application along with the associated February 12, 1999
    expiration date were invalid. In making that decision, we concluded
    that Song was ineligible to file an application for renewal in July
    1993, because the license had terminated on February 16, 1993.[^20]
    Accordingly, Song was not an incumbent licensee that lost his
    license after June 1998, when Nextel became the geographic area
    licensee for the Tacoma, Washington market. Rather, Song lost his
    license before Nextel became the EA licensee. The Commission's
    policy on spectrum reversion is therefore inapplicable in this case.

9.  Nextel finally asserts that it "stands to suffer competitive harm as
    well as potential interference to its economic area authorization"
    if Song's license is reinstated.[^21] While the spectrum associated
    with Station WNKS326 did not revert to Nextel under the Commission's
    spectrum reversion policy, the spectrum was included in the auction
    of the upper 200 channels in the 800 MHz service. Nextel, however,
    was on notice that the status of that spectrum could change because
    Song's application for review was pending before the Commission when
    Nextel elected to bid on the channels associated with Station
    WNKS326 in the Tacoma, Washington area. Specifically, prior to the
    800 MHz upper band auction, the Wireless Telecommunications Bureau
    notified potential bidders that pleadings, including applications
    for review, were pending before the Commission and might not be
    resolved before the auction. Potential bidders were also warned that
    resolution of the pending matters might affect the availability of
    the spectrum for the EA licensee. Finally, potential bidders were
    warned that they were solely responsible for investigating and
    evaluating the degree to which any pending matter might affect
    spectrum availability in areas where they sought EA licenses.[^22]
    Thus, Nextel was on notice that pending claims to the spectrum
    associated with Station WNKS326 might affect the availability of
    that spectrum even though it was included in the auction. In fact,
    once the Commission reinstated Song's license, that spectrum was no
    longer available to Nextel. Any decision that Nextel made to use the
    spectrum associated with Station WNKS326 during this proceeding was
    made at Nextel's own risk.

10. As explained above, we reverse our decision to dismiss Nextel's
    Opposition. After carefully considering Nextel's Opposition, we find
    that Nextel does not present any arguments that would warrant
    reversing the *February 26 Order* on the merits. We therefore affirm
    our decision of February 26, 2002, to grant Song's petition for
    reconsideration.

# ordering clauses

11. ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 4(i), 303(r),
    and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), 405, and Sections 0.331, 1.106, and 1.108 of the
    Commission's rules, 47 C.F.R. §§ 0.331, 1.106, 1.108, the decision
    to dismiss the Opposition to Petition for Reconsideration filed by
    Nextel License Holdings 4, Inc. on March 14, 2001, in the *February
    26 Order* IS REVERSED on our own motion.

12. IT IS FURTHER ORDERED that, pursuant to Section 4(i), 303(r), and
    405 of the Communications Act, as amended, 47 U.S.C. §§ 154(i),
    303(r), 405, and Sections 0.331 and 1.106 of the Commission's rules,
    47 C.F.R. §§ 0.331, 1.106, the Opposition to Petition for
    Reconsideration filed by Nextel License Holdings 4, Inc. on March
    14, 2001, IS DENIED.

    FEDERAL COMMUNICATIONS COMMISION

    Paul D'Ari

    Chief, Policy and Rules Branch

    Commercial Wireless Division

    Wireless Telecommunications Bureau

[^1]: In the Matter of Jen-Shenn Song Renewal Application for Station
    WNKS326 and Request for Waiver of Section 1.949(a) of the
    Commission's Rules, *Order*, DA 02-423 (rel. Feb. 26, 2002).

[^2]: Opposition to Petition for Reconsideration filed by Nextel License
    Holdings 4, Inc. (Mar. 14, 2001).

[^3]: *See* *February 26 Order*, DA 02-423 at ¶¶ 2-4.

[^4]: *See* In the Matter of Billy J. Rutledge Request for a Finder's
    Preference Against Station WNKS326, Tacoma, Washington, Licensed to
    Jen-Shen Song, *Memorandum Opinion and Order*, 14 FCC Rcd 6565,
    6566, n.5 (1999) (*Finder's Preference Order*).

[^5]: *Finder's Preference Order*, 14 FCC Rcd at 6569, ¶ 9, 6570, ¶ 10.

[^6]: *Finder's Preference Order*, 14 FCC Rcd at 6567, ¶¶ 3, 4.

[^7]: *Finder's Preference Order*, 14 FCC Rcd at 6567, ¶ 5.

[^8]: *Finder's Preference Order*, 14 FCC Rcd at 6570, ¶¶ 11-13.

[^9]: Reply to Opposition to Petition for Reconsideration filed by
    Jen-Shenn Song (Mar. 21, 2001).

[^10]: 47 C.F.R. § 1.106(g).

[^11]: February 26 Order, DA 02-423 at ¶ 5.

[^12]: 47 C.F.R. § 1.108.

[^13]: 47 C.F.R. § 1.4(h).

[^14]: Petition at Certificate of Service.

[^15]: As we described in the February 26 Order, Song argued that he had
    no notice that he needed to file a renewal application. February 26
    Order, DA 02-423 at ¶8; Reply at 2. In its Opposition, Nextel argues
    that not receiving a renewal notice is not an excuse for failure to
    file a renewal application. Nextel further contends that "granting a
    waiver request for a licensee who went on an extended business trip
    and lost track of his own licensing proceeding" is neither unique or
    unusual circumstances nor in the public interest. Opposition at 2-3.

[^16]: February 26, Order, DA 02-423 at ¶6.

[^17]: Opposition at 3.

[^18]: 47 C.F.R. § 90.173(n).

[^19]: In the Matter of Part 90 of the Commission's Rules to Facilitate
    Future Development of SMR Systems in the 800 MHz Frequency Band,
    *Memorandum Opinion and Order*, 12 FCC Rcd 9972, 9982, ¶ 29 (1997).

[^20]: February 26 Order, DA 02-423 at ¶ 6.

[^21]: Opposition at 4.

[^22]: *See* Wireless Telecommunications Bureau Identifies Petitions and
    Applications Affecting 800 MHz Specialized Mobile Radio Upper Band
    Spectrum, *Public Notice*, 13 FCC Rcd 4283 (1997). As a courtesy,
    the Public Notice includes a table that identifies matters of which
    the Commission is aware that related to licenses or applications for
    the 800 MHz upper band spectrum. *Id*. at Att. In addition, the
    Commission expressly states in the Public Notice that it makes no
    representations or guarantees that the listed matters are the only
    pending matters that could affect spectrum availability in the 800
    MHz upper band. *Id*. at 1.