**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of Application of  | ) | FCC File No. 9804R295496     |
|                                  |   |                              |
| CITY OF COMMERCE                 | ) |                              |
|                                  |   |                              |
| For Renewal of Authorization for | ) |                              |
| Conventional Other               |   |                              |
| Industrial/Land Transportation   | ) |                              |
| Station WPCE379, Pasadena,       |   |                              |
| California                       | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
+----------------------------------+---+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted: July 23, 2001 Released: July 26, 2001**

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

# INTRODUCTION

1.  On May 4, 1998, James A. Kay, Jr. (Kay) filed a Petition for
    Reconsideration[^1] of an action by the Licensing and Technical
    Analysis Branch (Branch), Public Safety and Private Wireless
    Division on April 10, 1998. That action was the grant of a renewal
    application filed by the City of Commerce for Private Land Mobile
    Radio Station WPCE379, Pasadena, California. For the reasons
    discussed below, we grant the Petition, dismiss the City of
    Commerce's renewal application, and dismiss the AFR.[^2]

# BACKGROUND

2.  On May 11, 1993, Kay was granted a license to operate
    seventy-two (72) mobile units on conventional Specialized Mobile
    Radio (SMR) Station WNWB332, Van Nuys, California, on frequencies
    851.8125 MHz/806.8125 MHz. Pursuant to Section 90.633(b) of the
    Commission's Rules,[^3] Kay enjoyed exclusive use of the above noted
    frequency channel. Nonetheless, on June 1, 1993, the City of
    Commerce was licensed to operate sixteen mobile units for
    Conventional Other Industrial/Land Transportation Station WPCE379 on
    the same frequency pair. According to our licensing records,
    Industrial Telecommunications Association, Inc. (ITA) coordinated
    the City of Commerce application. On September 9, 1993, ITA
    acknowledged that it had been unaware of Kay's application at the
    time it recommended the use of the frequency pair to City of
    Commerce.[^4] ITA further stated that if it had known of Kay's
    application, it would not have recommended the frequency pair to
    City of Commerce.[^5] Although the Land Mobile Branch ("Land Mobile
    Branch"), Licensing Division, Private Radio Bureau set-aside the
    City of Commerce's license to operate Station WPCE379 on November 3,
    1993,[^6] the license was subsequently reinstated because the
    set-aside action was not timely.[^7]

3.  The Reinstatement Letter noted that the frequency coordination for
    the City of Commerce was defective.[^8] City of Commerce was "urged
    to contact the frequency coordinators to ascertain whether an
    alternate frequency is available."[^9] The Reinstatement Letter
    concluded with a notification to the City of Commerce that its
    license to operate Station WPCE379 "will not be renewed."[^10] On
    January 10, 1994, the City of Commerce was issued a modified license
    for Station WPCE379 to reflect the imposition of a special condition
    stating "\[t\]his authorization will not be renewed for 851.8125 per
    letter dated Nov. 24, 1993."[^11] The City of Commerce nevertheless
    filed an application to renew its license without modifying the
    proposed facilities to specify a new frequency.[^12] On April 10,
    1998, the Branch granted the renewal application. On May 4, 1998,
    Kay filed the instant Petition.

    **III. DISCUSSION**

4.  In the Petition, Kay argues that our "action granting the renewal
    was incorrect and should be set-aside."[^13] Kay first asserts that
    the City of Commerce's operation of Station WPCE379 continually
    causes harmful co-channel interference to Kay's operation of Station
    WNWB332.[^14] Kay therefore reiterates that "the City of Commerce
    coordination request should have been rejected pursuant to Section
    90.633(b) of the Rules."[^15] Kay argues that the language of the
    Reinstatement Letter and the special condition precluded the City of
    Commerce from submitting and the Commission from granting a renewal
    application for Station WPCE379 operating on frequencies 851.8125
    MHz/806.8125 MHz.[^16] Therefore, Kay requests that we set aside our
    action granting the renewal.

5.  We agree with Kay that the grant of the City of Commerce renewal
    application was erroneous. Under Section 90.633(b) of the
    Commission's Rules, Kay was entitled to exclusive use of the
    frequency pair because he had loaded the frequency pair to over 70
    mobile units.[^17] ITA and City of Commerce do not dispute that the
    City of Commerce should not have been authorized to use the subject
    frequency due to the apparent defective coordination.[^18] Rather,
    in 1993 and 1994, the City of Commerce defended its authorization on
    procedural grounds.[^19] Because neither the Commission nor Kay
    raised the issue of the City of Commerce's defective coordination
    until September of 1993, the Land Mobile Branch recognized that its
    attempt to set aside the City of Commerce's license was
    untimely.[^20] In the Reinstatement Letter, however, the Land Mobile
    Branch notified City of Commerce that it should attempt to obtain
    new frequencies and that its license would not be renewed on the
    channel pair at issue.[^21] Significantly, the City of Commerce did
    not seek reconsideration of this action. Land Mobile Branch
    subsequently placed a special condition on the license explicitly
    stating that its authorization to operate on the frequency 851.8125
    MHz would not be renewed.[^22] The license for Station WPCE379 was
    modified for unrelated reasons on May 3, 1994.[^23] That license
    contained the same special condition.[^24]

6.  In *P&R Temmer v. FCC*,[^25] the Court noted, "An FCC licensee takes
    its license subject to the conditions imposed on its use. These
    conditions may be contained in both the Commission\'s regulations
    and in the license. Acceptance of a license constitutes accession to
    all such conditions." By accepting its licenses without protesting
    the special condition placed on those licenses, the City of Commerce
    agreed to be bound by the special condition.[^26] Notwithstanding
    that agreement, City of Commerce sought renewal of its license
    without making any attempt to modify its license to specify a
    different frequency. Kay's Station WNWB332 remains authorized to
    operate on the frequency pair with seventy-two mobile units.
    Therefore, Kay is entitled to the exclusive use of the subject
    frequency. City of Commerce has not sought a waiver of Section
    90.633(b). Accordingly, the City of Commerce renewal application was
    defective for failure to comply with the special condition and with
    Section 90.633(b). We therefore grant Kay's Petition, reverse the
    grant of the renewal application, and dismiss the renewal
    application as defective.[^27]

7.  On January 27, 2000, Kay filed an AFR[^28] seeking Commission review
    of the matter because the Bureau had not yet acted on his Petition.
    We dismiss the AFR because it was not validly served on City of
    Commerce. In this regard, we note that Section 1.115(f) of the
    Commission's Rules[^29] requires a party filing an application for
    review to render service of process upon parties to the proceeding.
    Kay served Elizabeth R. Sachs, Esq., Lukas, Nace, Gutierrez & Sachs
    Chtd. with the AFR. Ms. Sachs, however, had previously informed Kay
    and the Commission on May 28, 1998 that she no longer represented
    the City of Commerce.[^30] Upon receipt of the AFR, Ms. Sachs
    reminded Kay and the Commission that she no longer represented the
    City of Commerce.[^31] Notwithstanding that reminder, Kay did not
    provide evidence to the Commission that he served the AFR on City of
    Commerce. Since Kay's AFR did not comply with the service
    requirements of Section 1.115(f), we are dismissing Kay's AFR
    pursuant to Section 0.331(c) of the Commission's Rules.[^32]

# ORDERING CLAUSES

8.  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 James A. Kay, Jr. on May
    4, 1998 IS GRANTED.

9.  IT IS FURTHER ORDERED THAT, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Sections 1.934(d)(2) and 90.633(b) of the Commission's Rules, 47
    C.F.R. §§ 1.934(d)(2), 90.633(b), the application for renewal of
    license filed by City of Commerce (FCC File No. 9804R295496) IS
    DISMISSED.

10. IT IS FURTHER ORDERED THAT, pursuant to Sections 4(i) and 5(c) of
    the Communications Act of 1934, as amended, 47 U.S.C. § 154(i),
    155(c), and Sections 0.331(c) and 1.115(f) of the Commission's
    Rules, 47 C.F.R. §§ 0.331(c), 1.115(f), the Motion for Issuance of
    Cease and Desist Order filed by James A. Kay, Jr. on May 4, 1998 and
    the Application for Review filed by James A. Kay, Jr. on January 27,
    2000 ARE DISMISSED.

11. These actions are taken pursuant to delegated authority granted
    under the provisions of 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]: James A. Kay, Jr., Petition for Reconsideration (filed May 4,
    1998) (Petition).

[^2]: Kay also filed a Motion for Issuance of Cease and Desist Order
    (Cease and Desist Motion) on May 4, 1998. Our grant of the Petition
    renders the action sought by Kay in the Cease and Desist Motion
    moot. We therefore dismiss the Cease and Desist Motion as moot. On
    January 27, 2000 Kay filed an Application for Review (AFR). The AFR
    is addressed at ¶ 7, *infra*.

[^3]: 47 C.F.R. § 90.633(b) (1993) (providing that a channel will not be
    assigned to additional licensees when it is loaded to 70 mobile
    stations).

[^4]: *See* Letter from Andre F. Cote, Senior Vice President, ITA, to
    Mr. Terry L. Fishel, Chief, Land Mobile Branch, Licensing Division,
    Private Radio Bureau ) (dated Sept. 9, 1993) (ITA Letter).

[^5]: *Id.*

[^6]: *See* Letter from Terry L. Fishel, Chief, Land Mobile Branch,
    Licensing Division, Private Radio Bureau, to Daniel Gomez, City of
    Commerce (rel. Nov. 3, 1993) (Set-Aside Letter).

[^7]: *See* Letter from Terry L. Fishel, Chief, Land Mobile Branch,
    Licensing Division, Private Radio Bureau, to Elizabeth R. Sachs,
    Esq. (rel. Nov. 24, 1993) (Reinstatement Letter).

[^8]: *See id.*

[^9]: *Id*.

[^10]: *Id.*

[^11]: *See* License for Station WPCE379, File No. 9302624411 (issued
    Jan. 10, 1994).

[^12]: *See* FCC File No. 9804R295496.

[^13]: Petition at 2.

[^14]: *Id.* at 1.

[^15]: *Id.* at 2 (*citing* 47 C.F.R. § 90.633(b)).

[^16]: *Id*. at 1-2.

[^17]: *See* 47 C.F.R. § 90.633(b).

[^18]: *See* ITA Letter at 1; City of Commerce, Opposition to Petition
    for Set Aside of License and Other Relief 2 (filed Oct. 12, 1994)
    ("If \[Kay's\] application was fully compliant with applicable FCC
    requirements, and he was properly entitled to the channel
    exclusivity he requested, then the grant to the City was, indeed, in
    error.").

[^19]: *See, e.g.,* Letter from Elizabeth R. Sachs, Lukas, McGowan, Nace
    & Gutierrez, to Terry L. Fishel, Chief, Land Mobile Branch,
    Licensing Division, Private Radio Bureau (dated Nov. 15, 1993).

[^20]: *See* Reinstatement Letter at 1.

[^21]: *See id.*

[^22]: *See* License for Station WPCE379, File No. 9302624411 (issued
    Jan. 10, 1994).

[^23]: *See* License for Station WPCE379, File No. 9302624411 (issued
    May 3, 1994).

[^24]: *See id.*

[^25]: 743 F.2d 918, 928 (D.C. Cir. 1984).

[^26]: *See* 47 C.F.R. § 1.110; *Central Television, Inc. v. FCC*, 834
    F.2d 186 (D.C. Cir. 1987); *P&R Temmer v. FCC*, *supra*.

[^27]: *See* 47 C.F.R. § 1.934(d)(2).

[^28]: James A. Kay, Jr., Application for Review (filed Jan. 27, 2000)
    (AFR).

[^29]: 47 C.F.R. § 1.115(f).

[^30]: *See* City of Commerce, Request for Extension of Time to Respond
    to Petition for Reconsideration (filed May 28, 1998).

[^31]: *See* Elizabeth R. Sachs, Esq., Notification of
    Non-Representation (filed Feb. 11, 2000).

[^32]: 47 C.F.R. § 0.331(c).