**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of Applications of | * | FCC File Nos. 0000079079,    |
|                                  | * | 0000079084, 0000079277,      |
| CALIFORNIA WATER SERVICE COMPANY | ) | 0000079282, 0000079294,      |
|                                  | * | 0000079302, 0000079321,      |
| For Authority to Provide         | * | 0000079326, 0000079570,      |
| Multiple Address System Service  |   | 0000079576, 0000079585,      |
| in the States of California and  | * | 0000079878, 0000079895,      |
| Washington                       | * | 0000079924, 0000079947,      |
|                                  | ) | 0000080090, 0000080591,      |
| CITY & COUNTY OF SAN FRANCISCO   | * | 0000080592, 0000080603,      |
|                                  | * | 0000080629, 0000080904,      |
| For Authority to Provide         |   | 0000080941, 0000080959,      |
| Multiple Address System Service  | * | 0000080970, 0000082835,      |
| in the Area of San Francisco,    | * | 0000082851, 0000082860,      |
| California                       | ) | 0000082870, 0000082894 and   |
|                                  | * | 0000082905                   |
| SAN DIEGO GAS & ELECTRIC         | * |                              |
|                                  |   | FCC File Nos. 0000138901,    |
| For Authority to Provide         | * | 0000138914, 0000138925,      |
| Multiple Address System Service  | * | 0000222488 and 0000472773    |
| in the Areas of Fallbrook,       | ) |                              |
| Escondido, San Clemente, San     | * | FCC File Nos. 0000072213,    |
| Juan Capistrano and Vista        | * | 0000072220, 0000072221,      |
| California                       |   | 0000072543 and 0000072547    |
|                                  | * |                              |
| CONTRA COSTA WATER DISTRICT      | * | FCC File No. 0000083147      |
|                                  | ) |                              |
| For Authority to Provide         | * |                              |
| Multiple Address System Service  | * |                              |
| in the Area of Nortonville,      |   |                              |
| California                       | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: May 22, 2003 Released: June 3, 2003**

By the Commission:

Table of Contents

Heading Paragraph \#

I. Introduction 1

II\. BACKGROUND 2

A. MAS Proceeding 2

B. MAS Applications 4

III\. DISCUSSION 15

A. Settlement Agreement 15

B. San Francisco's Objection 20

C. Waiver of Application Filing Deadline 25

IV\. CONCLUSION 32

V. ORDERING CLAUSE 33

Appendix

# Introduction

1.  We have before us an application for review (AFR) filed by the City
    and County of San Francisco (San Francisco) on July 31, 2002.[^1] In
    the AFR, San Francisco seeks review of a Public Safety and Private
    Wireless Division (Division) *Order*.[^2] In the *Order*, the
    Division (1) dismissed a proposed settlement agreement between San
    Francisco and California Water Service Company (Cal Water)
    (Settlement Agreement), (2) dismissed five applications filed by San
    Francisco, and (3) denied San Francisco's objection to certain Cal
    Water Multiple Address Systems (MAS) applications (Objection).[^3]
    San Francisco requests that we reconsider its Objection and proposed
    settlement and treat its Objection as a request for a waiver of the
    \[Commission's\] MAS "first-filer rule."[^4] Additionally, it seeks
    a grant of its AFR and approval of the Settlement Agreement.[^5] For
    the reasons discussed below, we deny the AFR.

# BACKGROUND

## MAS Proceeding

2.  On February 27, 1997, the Commission initiated a proceeding to
    examine ways to maximize spectrum use allocated to MAS.[^6] In this
    proceeding, the Commission sought to establish a flexible regulatory
    framework for spectrum allocations that, among other things, would
    provide opportunities for continued development of competitive new
    service offerings by allowing flexible use of spectrum, expedite
    market entry through modified licensing procedures, and promote
    technological innovation by eliminating unnecessary regulatory
    burdens.[^7] In order to permit the orderly and effective resolution
    of the issues in the MAS proceeding, the Commission immediately
    froze[^8] applications in the 932/941 MHz bands, except certain
    pending applications, applications for minor modifications, and
    applications for license assignment or transfer of control, during
    the pendency of the rulemaking.

3.  On January 19, 2000, the Commission streamlined and restructured its
    MAS rules and procedures.[^9] As part of these modifications, the
    Commission designated twenty of the forty MAS channel pairs in the
    932/941 MHz band for public safety/Federal Government and private
    internal services, and the Commission provided for the licensing of
    these channels on a "first-come, first-served" site-by-site basis
    with frequency coordination.[^10] Additionally, the Commission
    rescinded the freeze on portions of the 932/941 MHz bands designated
    for public safety and private internal use.[^11] Thus, commencing on
    January 20, 2000, the Commission began accepting applications to
    operate MAS systems on the 932/941 MHz bands designated for public
    safety and private internal use on a "first-come, first-served"
    site-by-site basis with frequency coordination. To receive
    consideration as mutually exclusive applications, applicants must
    have filed applications proposing overlapping operations with one or
    more applications for 932/941 MHz MAS channels on the same day.[^12]

## MAS Applications

4.  Shortly thereafter, San Diego Gas & Electric (SDG&E), Cal Water, San
    Francisco, and Contra Costa Water District (Contra Costa) each filed
    applications seeking authorization to operate MAS stations in
    California. On January 20 and 21, 2000, SDG&E filed five
    applications requesting authorization to operate MAS stations in the
    areas of Fallbrook,[^13] Escondido,[^14] San Clemente,[^15] San Juan
    Capistrano[^16] and Vista,[^17] California, respectively. As filed,
    each SDG&E application was defective because SDG&E filed the
    applications without the required frequency coordination.[^18]

5.  On February 3, 2000, Cal Water filed four applications to operate in
    the areas of Lancaster,[^19] Hawthorne,[^20] East Los Angeles,[^21]
    and Redonda Beach,[^22] California, respectively. Cal Water
    requested three frequencies in the 932/941 MHz MAS band for each
    station. As filed, the proposed operations in Cal Water's Lancaster
    and Hawthorne applications and the proposed operations in SDG&E's
    San Juan Capistrano application did not comply with the co-channel
    separation (short-space) requirements on 932/941.38125 MHz.[^23]
    Additionally, the proposed operations in Cal Water's East Los
    Angeles application and the proposed operations in SDG&E's San
    Clemente, Escondido and Fallbrook applications did not comply with
    the short-spacing requirements on 932/941.26875 MHz and
    932/941.40625 MHz. Finally, the proposed operations in Cal Water's
    Redondo Beach application and the proposed operations in SDG&E's
    Vista application did not comply with the short-spacing requirements
    on 932/941.39375 MHz.

6.  Between February 2 and February 8, 2000, Cal Water filed an
    additional twenty-six applications for new MAS stations in
    California and the state of Washington.[^24] On February 17, 2000,
    Contra Costa filed an application for a new MAS station in the
    Nortonville, California area.[^25] The operations proposed in Contra
    Costa's Nortonville application and the operations in Cal Water's
    Stockton application, one of the above twenty-six applications, did
    not comply with the short-spacing requirements on 932/941.28125
    MHz.[^26]

7.  On March 9, 2000, San Francisco attempted to obtain frequency
    coordination for four MAS master stations sites.[^27] Comsearch
    informed San Francisco that entities had filed applications for all
    newly available MAS channels.[^28] At this point, San Francisco knew
    no channels were available in the San Francisco area.[^29]

8.  On May 16, 2000, San Francisco objected to seven applications filed
    by Cal Water to provide service in California.[^30] In its
    Objection, San Francisco argues that we should deny Cal Water's
    applications because the applications would conflict with its
    planned stations and because granting a significant amount of
    spectrum available in one area to one applicant would not be in the
    public interest.[^31] At this time, San Francisco had not filed any
    applications in the 932/941 MHz band to operate MAS stations. On May
    23, 2000, SDG&E amended its five applications to include the
    required frequency coordination.[^32] The Division granted these
    five applications in the August through October 2000 period.[^33]
    Cal Water did not file an objection or a petition for
    reconsideration against the grant of SDG&E's applications. Between
    May 24, 2000 and September 20, 2000, San Francisco filed four
    applications[^34] for MAS licenses, although it recognized that no
    MAS channels were available and its applications would overlap with
    the seven relevant Cal Water applications.[^35]

9.  On February 7, 2001, the Division returned Cal Water's thirty
    applications and requested that Cal Water further justify, within
    sixty days, the need for the proposed stations.[^36] In response, on
    April 6, 2001, Cal Water filed additional information with regard to
    twenty-nine of the thirty applications[^37].

10. On April 9, 2001, San Francisco and Cal Water filed the
    aforementioned Settlement Agreement.[^38] This agreement contained
    four elements. First, Cal Water would withdraw its requests for
    certain channels in the applications identified in the Objection as
    well as two other channels that San Francisco did not previously
    dispute.[^39] Second, San Francisco would withdraw its Objection to
    Cal Water's applications.[^40] Third, the parties would negotiate a
    short-spacing agreement for service areas proposed in the future by
    San Francisco that overlap service areas already proposed by Cal
    Water.[^41] Finally, the Settlement Agreement would be null and void
    if the Commission failed to approve it and failed to grant San
    Francisco's four applications.[^42]

11. On May 24, 2001, San Francisco filed an additional MAS application
    for the area of San Francisco, California.[^43] San Francisco
    acknowledged that its application was short-spaced with two Cal
    Water applications.[^44] As provided in the Settlement Agreement,
    San Francisco promised to negotiate a short-spacing agreement with
    Cal Water.[^45]

12. On July 1, 2002, the Division dismissed the Settlement Agreement,
    dismissed San Francisco's five MAS applications, and denied San
    Francisco's Objection to the Cal Water MAS applications.[^46] At the
    same time, the Division noted conflicts between certain Cal Water
    applications and certain previously granted applications of SDG&E
    and Contra Costa.[^47] In the *Order,* the Division recognized that
    the SDG&E and Contra Costa applications were granted in error;[^48]
    however, the Division also noted that Cal Water failed to file a
    petition to deny applications, request to set aside the license
    grants, or a petition for reconsideration of the license
    grants,[^49] and that it would therefore be improper for the
    Division to set aside the SDG&E and Contra Costa
    authorizations.[^50]

13. The Division stated that after the thirty-day period reflected in
    Section 1.113 of the Commission's rules, which allows for correction
    of action taken, the Division could only correct the grants if they
    were due to some ministerial error, and such was not the case
    here.[^51] The Division concluded that it could not grant Cal
    Water's request to operate on certain frequencies in the 932/941 MHz
    band in the areas of Lancaster, Hawthorne, East Los Angeles, and
    Redonda Beach, California because such a grant would conflict with
    the final licensing grants to SDG&E.[^52] The Division could not
    grant a similar request by Cal Water to operate on certain
    frequencies in the 932/941 MHz band in the areas of Stockton, San
    Carlos and Dillon Beach, California because such a grant would
    conflict with the license grant to Contra Costa.[^53] The Division
    then directed the Licensing and Technical Analysis Branch (L&TAB) to
    process Cal Water's applications in accordance with the
    *Order*.[^54] Accordingly, L&TAB processed the Cal Water application
    resulting in partial grants of the applications because the Division
    *Order* excluded the grant of certain frequencies in the 932/941 MHz
    band.[^55]

14. San Francisco filed its AFR on July 31, 2002.[^56] In its AFR, San
    Francisco raises three matters that it believes should result in the
    reversal of the Division *Order*. First, San Francisco contends that
    the Division *Order* fails to consider the merits of the Settlement
    Agreement, ignores equities in favor of procedure,[^57] and fails to
    address San Francisco's objections to Cal Water's applications.[^58]
    Moreover, San Francisco maintains that its Objection should be
    treated as a request for a waiver of the Commission's rule regarding
    the dismissal of untimely filed applications.[^59] We disagree and
    address the arguments below.

#  DISCUSSION

## Settlement Agreement

15. San Francisco contends that the Division failed to consider the
    merits and equities in favor of accepting the Settlement Agreement.
    Section 1.935 of our Rules permits parties to file settlement
    agreements when applicants that have mutually exclusive applications
    enter into settlement agreements to resolve the mutual
    exclusivity.[^60] Also under Section 1.935, a party that has filed
    an informal objection against an application and then seeks to
    withdraw or request dismissal of the objection must obtain the
    approval of the Commission.[^61]

16. In the *MAS R&O*, the Commission stated that it would license the
    subject MAS channels on a first-come, first-served, site-by-site
    basis with frequency coordination.[^62] Thus, San Francisco could
    only file mutually exclusive MAS applications with Cal Water if both
    applicants filed applications on the same day and they proposed
    overlapping operations. In this instance, Cal Water filed its
    applications between February 3, 2000 and February 8, 2000. However,
    San Francisco did not file its applications until May 24, 2000,
    September 20, 2000, and May 24, 2001, respectively. Because these
    applications are not mutually exclusive, Cal Water and San Francisco
    did not satisfy the threshold requirements to file a settlement
    agreement pursuant to Section 1.935.

17. San Francisco filed an objection against Cal Water's applications.
    Section 1.935 requires the party filing an objection against an
    application to obtain the approval of the Commission in order to
    request dismissal or withdrawal of the objection.[^63] This rule
    deters frivolous protests, filed primarily for anticompetitive or
    abusive reasons[^64] and prevents the filing of speculative
    applications and pleadings (or threats of the same) designed to
    extract money from applicants.[^65]

18.  In this instance, the Division properly considered and disapproved
    of the Settlement Agreement.[^66] San Francisco and Cal Water sought
    approval of the Settlement Agreement in order to obtain MAS
    channels. However, as the Division *Order* indicates, approval of
    the Settlement Agreement would have placed San Francisco at an
    unfair advantage over other entities who had filed earlier than San
    Francisco on the same frequencies, or who otherwise had an interest
    in applying for frequencies in this band but may not have filed
    applications in recognition of the Commission's first-come,
    first-served licensing principle.[^67] San Francisco incorrectly
    presumes that there were no other interested applicants for these
    channels because the Division *Order* does not state the names of
    the other interested entities.[^68] Indeed, subsequent to the filing
    of Cal Water's MAS applications, several other entities filed
    applications on the same frequencies that were eventually the
    subject of the Settlement Agreement.[^69] These other entities'
    applications were filed earlier than San Francisco's applications on
    the same frequencies, which were the subject of the Settlement
    Agreement.[^70] The Division dismissed these other entities'
    applications as late-filed in accordance with the rules.[^71]
    Additionally, numerous other entities filed untimely applications on
    the other frequencies requested in Cal Water's MAS
    applications.[^72] As noted earlier, SDG&E and Contra Costa Water
    District filed late-filed applications, which the Division granted
    in error.[^73] Nonetheless, the Division did not receive a request
    to set aside the license grants, nor a petition for reconsideration
    of the license grants. The thirty-day period to set aside the grants
    passed.[^74] The Commission may correct erroneous grants of
    applications *sua sponte* more than thirty days after they become
    final only where the grants occur because of, or contain, a
    ministerial error.[^75] The Commission's authority to revisit final
    actions is limited to the correction of clerical errors that
    underlie or occur in the process of taking action, such as a
    mathematical miscalculation, or a license that omits or misstates a
    frequency, or a document that omits an intended party or
    provision.[^76] As the SDG&E and Contra Costa erroneous grants did
    not occur because of, or contain, ministerial error(s), these grants
    are final.[^77]

19. The Commission may approve settlement agreements that are in the
    public interest, and disapprove those settlement agreements that are
    contrary to the public interest.[^78] San Francisco argues that
    approval of the Settlement Agreement is in the public interest
    because San Francisco and Cal Water negotiated an agreement to avoid
    a protracted fight over the channels.[^79] We agree with the
    Division that approval of the Settlement Agreement is inconsistent
    with the public interest because San Francisco would receive an
    unfair advantage over other interested entities. Accordingly, we
    believe that disapproval of the Settlement Agreement is the proper
    disposition here. While we encourage negotiation between parties, we
    will not approve of negotiated results that contravene our
    rules\--such as the first-come, first-served requirement[^80]
    involved here\--absent a showing that a waiver of the requirement is
    warranted.

## San Francisco's Objection

20. We next consider the merits of San Francisco's arguments with
    respect to the Division's denial of San Francisco's Objection. San
    Francisco maintains that the Division did not provide a reasoned
    explanation for the denial of its objection. In its Objection, San
    Francisco provides a summary of its implementation of its
    Supervisory Control and Data Acquisition (SCADA) system[^81] and its
    reasons for seeking MAS channels.[^82] San Francisco asserts that it
    needs the MAS channels because the operation and functioning of its
    water system depends on its use of these channels to monitor,
    maintain, and repair its facilities and identify emergencies.[^83]
    In light of its efforts to implement its SCADA system, San Francisco
    asserts that denial of Cal Water's seven applications would serve
    the public interest.[^84] Specifically, San Francisco asserts that
    the public interest would be served by denying Cal Water's
    applications because thirty-three retail water agencies in the San
    Francisco Bay area, including Cal Water, rely on San Francisco's
    water system, to deliver reliable and safe water to citizens.[^85]
    Although San Francisco noted the Commission's decision to authorize
    an unlimited number of MAS channels to a single licensee in each
    geographic area, San Francisco contends that granting fourteen of
    twenty MAS channel pairs to one entity in the San Francisco Bay Area
    would be inconsistent with the goal of utilizing the MAS spectrum to
    its fullest potential.[^86] Essentially, San Francisco argues that
    it has a better use for the channels than Cal Water has for the
    channels and that the Division erred in denying its objection and
    dismissing its applications.[^87]

21. Cal Water supplemented its applications by summarizing the
    implementation of its SCADA system.[^88] Cal Water asserts that each
    application represents the channel needs in a separate district,
    which will have its own independent SCADA system. Cal Water plans to
    use the channels to distribute reliable and safe water on a
    day-to-day and emergency basis.[^89] Cal Water asserts that it needs
    the channels because it will have a very high number of remote
    facilities to monitor and control.[^90] Both Cal Water and San
    Francisco maintain that they need the channels to monitor and
    control remote facilities. The Division declined to grant San
    Francisco's objection because San Francisco did not cite any
    Commission rule that precluded Cal Water from applying for this
    spectrum.[^91] Cal Water submitted timely applications for spectrum
    that was available. As explained above, Cal Water's applications
    were not mutually exclusive with any other applications.

22. San Francisco asserts that granting fourteen of twenty MAS channels
    to one entity in the San Francisco area would not serve the public
    interest. San Francisco acknowledges that during the MAS proceeding,
    that the Commission declined to impose a limit on the number of MAS
    channels that a single licensee could hold in each geographic
    area.[^92] In the *MAS R&O*, the Commission determined that
    site-based licensees may aggregate unlimited spectrum in any MAS
    band.[^93] No entity sought reconsideration of this
    determination.[^94] Accordingly, this decision is final. [^95] The
    Division's denial of San Francisco's objection was proper.[^96]

23. Finally, we note that Cal Water did not request dismissal of its
    applications. As such, San Francisco presented no basis to dismiss
    Cal Water's applications. Furthermore, assuming the Division
    dismissed Cal Water's applications, the Division would not have
    automatically granted the related frequencies to San Francisco. As
    noted previously, several other entities were seeking MAS
    frequencies in the San Francisco area.[^97]

24. We believe that the Division's denial of the Objection was
    warranted. The Commission established MAS licensing for the 932-941
    channels on a first-come, first-served basis. San Francisco filed
    its applications even though it recognized that the applications
    were short-spaced with the Cal Water applications.[^98] Having been
    satisfied on the merits of Cal Water's application and with adequate
    justification showing Cal Water's need for additional spectrum, the
    Division properly denied San Francisco's request for denial of Cal
    Water's applications. Thus, we do not find the *Order* to be
    arbitrary and capricious, as San Francisco contends.[^99]

## Waiver of Application Filing Deadline

25. Finally, San Francisco asserts that its Objection essentially sought
    a waiver of Section 1.934(f) of our Rules.[^100] San Francisco
    contends that by presenting information about San Francisco and Cal
    Water in its Objection, it sought to "secure comparative
    consideration of San Francisco's needs and uses in relation to those
    of Cal Water"[^101] and, therefore, the Objection was tantamount to
    a request for a waiver of the Commission's rule[^102] allowing
    dismissal of untimely applications.[^103]

26. We find this argument unpersuasive. An applicant may obtain a waiver
    of our rules under two scenarios. First, the applicant must
    demonstrate that the underlying purpose of the rule(s) would not be
    served or would be frustrated by application to the instant case,
    and that a grant of the requested waiver would be in the public
    interest.[^104] In the alternative the applicant must demonstrate
    that in view of unique or unusual factual circumstances of the
    instant case, application of the rule(s) would be inequitable,
    unduly burdensome, or contrary to the public interest, or the
    applicant has no reasonable alternative.[^105] Applicants for waiver
    face a high hurdle and must plead the facts and circumstances which
    warrant a waiver.[^106] Furthermore, an applicant for a waiver must
    articulate a specific pleading, and adduce concrete support,
    preferably documentary.[^107] Initially, we note that San Francisco
    did not cite any rule in its Objection for which it sought a waiver.
    Consequently, even if we were to deem the filing to be a waiver
    request, it would be a defective waiver request because San
    Francisco did not plead with particularity the facts and
    circumstances which warrant a waiver.

27. Assuming, *arguendo*, that San Francisco did request a waiver of
    Section 1.934(f) of our Rules, we must assess whether the request
    satisfies the waiver standard. We must interpret Section 1.934(f) in
    conjunction with Section 101.101 note 5. Although Section 1.934(f)
    permits the dismissal of applications that are premature or late
    filed,[^108] Section 101.101 note 1 determines when the application
    is premature or late-filed.[^109] As against late-filers, timely
    filers who have diligently complied with the Commission's
    requirements have an equitable interest in enforcement of the
    Commission's rules.[^110]

28. San Francisco has not shown that the public's interest in
    administrative finality and prompt issuance of licenses as well as
    Cal Water's diligent compliance with our Rules and need for the
    channels to monitor and control its SCADA system is outweighed by
    San Francisco's need for channels to monitor and control its SCADA
    system. Moreover, San Francisco did not address the waiver factors.
    Its sole justification for denial of Cal Water's applications is
    that it *believes* it needs the channels more. We decline to grant a
    waiver based on this rationale. Cal Water filed its application
    several months before San Francisco filed its applications. We find
    that San Francisco has not submitted sufficient reasons to warrant
    grant of a waiver in this context.

    29\. Finally, we note that San Francisco has an alternative to the
    resolution it seeks here. The parties may implement the intent of
    the Settlement Agreement by Cal Water assigning channels to San
    Francisco. In addition, three entities, Paging Systems, Inc.,
    TelBeeper of New Mexico, Inc., and MilkyWay Communications, LLC,
    were awarded channel blocks in the 932/941 MHz MAS band in the San
    Francisco-Oakland-San Jose market.[^111] We permit MAS assignment
    applications pursuant to Sections 1.948 and 101.1321(b) of the
    Commission's rules.[^112] Additionally, pursuant to Section 101.1323
    of our rules,[^113] we permit MAS geographic area licenses to
    partition and/or disaggregate their spectrum to third parties. San
    Francisco might consider approaching an MAS geographic area licensee
    to determine whether a contractual arrangement to acquire spectrum
    is possible. In addition, San Francisco might consider exploring
    other spectrum bands that are licensed on a site-by-site basis for
    its operations, such as the 450-470 MHz and 1.4 GHz bands. We
    decline to grant San Francisco's Objection or to waive the
    Commission's rules.

**IV. CONCLUSION**

30\. Accordingly, we sustain the Division's *Order* and decline to
reconsider San Francisco's Objection and proposed settlement.
Additionally, we decline to treat San Francisco's Objection as a request
for a waiver of the MAS first-filer rule.

# ORDERING CLAUSE

31\. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and
5(c)(5) of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i), 155(c)(5) and Section 1.115 of the Commission's rules, 47 C.F.R.
§ 1.115, the Application for Review filed by the City and County of San
Francisco on July 31, 2002 IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

# Appendix {#appendix .unnumbered}

The following chart depicts MAS applications referenced in this
*Memorandum Opinion and Order*:

+--------+--------+-----+-------------+-----------+---------+------+
| **     |        |     | **          | *         |         |      |
| Timely |        |     | Frequency** | *Untimely |         |      |
| Filed  |        |     |             | Filed     |         |      |
| Ap     |        |     |             | Appli     |         |      |
| plicat |        |     |             | cations** |         |      |
| ions** |        |     |             |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| *      | **File | **  |             | **Ap      | **File  | **Fi |
| *Appli | Nu     | Fil |             | plicant** | N       | ling |
| cant** | mber** | ing |             |           | umber** | Da   |
|        |        | Dat |             |           |         | te** |
|        |        | e** |             |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/2 | 94          | San       | 000     | 5/2  |
| Water  | 079079 | /00 | 1/932.31875 | Francisco | 0138901 | 4/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | SDG&E\*\* | 000     | 5/2  |
| Water  | 079277 | /00 | 1/932.38125 |           | 0072543 | 3/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | Contra    | 000     | 2/1  |
| Water  | 079282 | /00 | 1/932.28125 | Costa\*\* | 0083147 | 7/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | San       | 000     | 5/2  |
| Water  | 079282 | /00 | 1/932.34375 | Francisco | 0138925 | 4/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/2 | 94          | SDG&E     | 000     | 5/2  |
| Water  | 079294 | /00 | 1/932.41875 |           | 0072216 | 3/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | SDG&E\*\* | 000     | 5/2  |
| Water  | 079302 | /00 | 1/932.38125 |           | 0072543 | 3/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/2 | 94          | Contra    | 000     | 2/   |
| Water  | 079326 | /00 | 1/932.26875 | Costa,    | 0081801 | 7/00 |
|        |        |     | MHz         | County of |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/2 | 94          | C         | 000     | 3/2  |
| Water  | 079326 | /00 | 1/932.35625 | alifornia | 0098115 | 0/00 |
|        |        |     | MHz         | American  |         |      |
|        |        |     |             | Water     | 000     | 5/2  |
|        |        |     |             | Company   | 0138914 | 4/00 |
|        |        |     |             |           |         |      |
|        |        |     |             | San       |         |      |
|        |        |     |             | Francisco |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | Contra    | 000     | 2/1  |
| Water  | 079570 | /00 | 1/932.28125 | Costa\*\* | 0083147 | 7/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | SDG&E\*\* | 000     | 5/2  |
| Water  | 079576 | /00 | 1/932.26875 |           | 0072221 | 3/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | City of   | 000     | 2/2  |
| Water  | 079576 | /00 | 1/932.30625 | Burbank   | 0090927 | 2/00 |
|        |        |     | MHz         | Police    |         |      |
|        |        |     |             | D         |         |      |
|        |        |     |             | epartment |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | City of   | 000     | 3/   |
| Water  | 079576 | /00 | 1/932.40625 | Long      | 0091533 | 1/00 |
|        |        |     | MHz         | Beach     |         |      |
|        |        |     |             |           | 000     | 5/2  |
|        |        |     |             | SDG&E\*\* | 0072213 | 3/00 |
|        |        |     |             |           |         |      |
|        |        |     |             | SDG&E\*\* | 000     | 5/2  |
|        |        |     |             |           | 0072220 | 3/00 |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | S         | 000     | 4/   |
| Water  | 079585 | /00 | 1/932.36875 | acramento | 0102062 | 4/00 |
|        |        |     | MHz         | Municipal |         |      |
|        |        |     |             | Utility   | 000     | 4/   |
|        |        |     |             | District  | 0102108 | 4/00 |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | San       | 000     | 9/2  |
| Water  | 079878 | /00 | 1/932.25625 | Francisco | 0222488 | 0/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | SDG&E\*\* | 000     | 5/2  |
| Water  | 079895 | /00 | 1/932.39375 |           | 0072547 | 3/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | SDG&E     | 000     | 2/1  |
| Water  | 079947 | /00 | 1/932.28125 |           | 0083045 | 7/00 |
|        |        |     | MHz         | Southern  |         |      |
|        |        |     |             | C         | 000     | 2/1  |
|        |        |     |             | alifornia | 0080195 | 1/00 |
|        |        |     |             | Gas       |         |      |
|        |        |     |             | Company   |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | Contra    | 000     | 2/   |
| Water  | 080090 | /00 | 1/932.26875 | Costa,    | 0081801 | 7/00 |
|        |        |     | MHz         | County of |         |      |
+--------+--------+-----+-------------+-----------+---------+------+

+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | Santa     | 000     | 2/   |
| Water  | 080090 | /00 | 1/932.30625 | Clara     | 0078129 | 7/00 |
|        |        |     | MHz         | Valley    |         |      |
|        |        |     |             | Water     | 000     | 2/1  |
|        |        |     |             | District  | 0083153 | 7/00 |
|        |        |     |             |           |         |      |
|        |        |     |             | Contra    | 000     | 5/2  |
|        |        |     |             | Costa     | 0472773 | 4/01 |
|        |        |     |             | Water     |         |      |
|        |        |     |             | District  |         |      |
|        |        |     |             |           |         |      |
|        |        |     |             | San       |         |      |
|        |        |     |             | Francisco |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | Santa     | 000     | 2/   |
| Water  | 080591 | /00 | 1/932.30625 | Clara     | 0078129 | 7/00 |
|        |        |     | MHz         | Valley    |         |      |
|        |        |     |             | Water     | 000     | 5/2  |
|        |        |     |             | District  | 0472773 | 4/01 |
|        |        |     |             |           |         |      |
|        |        |     |             | San       |         |      |
|        |        |     |             | Francisco |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | Southern  | 000     | 2/1  |
| Water  | 080603 | /00 | 1/932.28125 | C         | 0080195 | 1/00 |
|        |        |     | MHz         | alifornia |         |      |
|        |        |     |             | Gas       | 000     | 2/1  |
|        |        |     |             | Company   | 0083045 | 7/00 |
|        |        |     |             |           |         |      |
|        |        |     |             | SDG&E     | 000     | 11/2 |
|        |        |     |             |           | 0671485 | 8/01 |
|        |        |     |             | Victor    |         |      |
|        |        |     |             | Valley    | 000     | 5/   |
|        |        |     |             | Water     | 0454593 | 9/01 |
|        |        |     |             | District  |         |      |
|        |        |     |             |           |         |      |
|        |        |     |             | SDG&E     |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | Union     | 000     | 3/1  |
| Water  | 080603 | /00 | 1/932.33125 | Pacific   | 0093303 | 4/00 |
|        |        |     | MHz         | Railroad  |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | SDG&E     | 000     | 5/2  |
| Water  | 080603 | /00 | 1/932.43125 |           | 0072170 | 3/00 |
|        |        |     | MHz         | SDG&E     |         |      |
|        |        |     |             |           | 000     | 5/   |
|        |        |     |             |           | 0454626 | 9/01 |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | Texaco    | 000     | 10/3 |
| Water  | 080629 | /00 | 1/932.28125 | Commun    | 0249307 | 0/00 |
|        |        |     | MHz         | ications, |         |      |
|        |        |     |             | Inc       | 000     | 4/1  |
|        |        |     |             |           | 0426887 | 3/01 |
|        |        |     |             | Chevron   |         |      |
|        |        |     |             | USA, Inc  |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/3 | 94          | Kern      | 000     | 5/3  |
| Water  | 080629 | /00 | 1/932.31875 | County    | 0154499 | 0/00 |
|        |        |     | MHz         | Water     |         |      |
|        |        |     |             | Agency    |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/8 | 94          | Santa     | 000     | 2/   |
| Water  | 080904 | /00 | 1/932.30625 | Clara     | 0078129 | 7/00 |
|        |        |     | MHz         | Valley    |         |      |
|        |        |     |             | Water     | 000     | 2/1  |
|        |        |     |             | District  | 0083153 | 7/00 |
|        |        |     |             |           |         |      |
|        |        |     |             | Contra    | 000     | 5/2  |
|        |        |     |             | Costa     | 0472773 | 4/01 |
|        |        |     |             | Water     |         |      |
|        |        |     |             | District  |         |      |
|        |        |     |             |           |         |      |
|        |        |     |             | San       |         |      |
|        |        |     |             | Francisco |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/8 | 94          | San       | 000     | 5/2  |
| Water  | 080904 | /00 | 1/932.35625 | Francisco | 0138914 | 4/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/8 | 94          | S         | 000     | 4/   |
| Water  | 080941 | /00 | 1/932.36875 | acramento | 0102062 | 4/00 |
|        |        |     | MHz         | Municipal |         |      |
|        |        |     |             | Utility   | 000     | 4/   |
|        |        |     |             | District  | 0102108 | 4/00 |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/8 | 94          | Chevron   | 000     | 4/   |
| Water  | 080970 | /00 | 1/932.29375 | USA, Inc  | 0103074 | 5/00 |
|        |        |     | MHz         |           |         |      |
|        |        |     |             | North of  | 000     | 11/1 |
|        |        |     |             | the River | 0287128 | 4/00 |
|        |        |     |             | Municipal |         |      |
|        |        |     |             | Water     |         |      |
|        |        |     |             | District  |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/8 | 94          | Placer    | 000     | 3/   |
| Water  | 082835 | /00 | 1/932.34375 | County    | 0091666 | 6/00 |
|        |        |     | MHz         | Water     |         |      |
|        |        |     |             | Agency    |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/8 | 94          | C         | 000     | 3/2  |
| Water  | 082851 | /00 | 1/932.35625 | alifornia | 0098115 | 0/00 |
|        |        |     | MHz         | American  |         |      |
|        |        |     |             | Water     | 000     | 5/2  |
|        |        |     |             | Company   | 0138914 | 4/00 |
|        |        |     |             |           |         |      |
|        |        |     |             | San       |         |      |
|        |        |     |             | Francisco |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/8 | 94          | San       | 000     | 9/2  |
| Water  | 082860 | /00 | 1/932.25625 | Francisco | 0222488 | 0/00 |
|        |        |     | MHz         |           |         |      |
+--------+--------+-----+-------------+-----------+---------+------+
| Cal    | 0000   | 2/8 | 94          | Contra    | 000     | 2/1  |
| Water  | 082860 | /00 | 1/932.28125 | Costa     | 0083147 | 7/00 |
|        |        |     | MHz         | Water     |         |      |
|        |        |     |             | Dis       |         |      |
|        |        |     |             | trict\*\* |         |      |
+--------+--------+-----+-------------+-----------+---------+------+

\*\* = granted in error

[^1]: Application for Review (filed July 31, 2002).

[^2]: Applications of: California Water Service Company, For Authority
    to Provide Multiple Address System Service in the States of
    California and Washington; City and County of San Francisco, For
    Authority to Provide Multiple Address System Service in the Area of
    San Francisco, California; San Diego Gas & Electric, For Authority
    to Provide Multiple Address System Service in the Areas of
    Fallbrook, Escondido, San Clemente, San Juan Capistrano and Vista
    California; Contra Costa Water District, For Authority to Provide
    Multiple Address System Service in the Area of Nortonville,
    California, *Order*, 17 FCC Rcd 12746 (PSPWD 2002) (*Order*).

[^3]: *Id.*

[^4]: AFR at 9. We interpret San Francisco's phrase "first-filer rule"
    as referring to the Commission's processing of MAS applications on a
    "first-come, first-served" site-by-site basis with frequency
    coordination. *See* 47 C.F.R. § 101.101 note 1.

[^5]: AFR at 9.

[^6]: Amendment of the Commission's Rules Regarding Multiple Address
    Systems, *Notice of Proposed Rulemaking*, WT Docket No. 97-81, 12
    FCC Rcd 7973 (1997) (*MAS NPRM*).

[^7]: *Id*. at 7974 ¶ 1.

[^8]: Meaning that the Commission immediately suspended the acceptance
    and processing of such applications.

[^9]: Amendment of the Commission's Rules Regarding Multiple Address
    Systems, WT Docket No. 97-81, *Report and Order*, 15 FCC Rcd 11,956
    (2000) (*MAS R&O*).

[^10]: *Id*. at 11,968 ¶ 31, 11,971 ¶ 37, 11,976 ¶ 53 (designated five
    of the channel pairs for public safety services).

[^11]: *MAS R&O*, 15 FCC Rcd at 12,004-5 ¶ 114.

[^12]: *Id*. *See also* 47 C.F.R. § 101.101 note 1.

[^13]: FCC File No. 0000072213 (filed Jan. 20, 2000), amended (Major --
    with freq. coord.) May 23, 2000, and (non-Major) May 25, 2000.

[^14]: FCC File No. 0000072220 (filed Jan. 20, 2000)), amended (Major --
    with freq. coord.) May 23, 2000, and (non-Major) May 25, 2000.

[^15]: FCC File No. 0000072221 (filed Jan. 20, 2000), amended (Major --
    with freq. coord.) May 23, 2000, and (non-Major) May 25, 2000.

[^16]: FCC File No. 0000072543 (filed Jan. 21, 2000), amended (Major --
    with freq. coord.) May 23, 2000, and (non-Major) May 25, 2000, and
    (non-Major) June 26, 2000.

[^17]: FCC File No. 0000072547 (filed Jan. 21, 2000), amended (Major --
    with freq. coord.) May 23, 2000, and (non-Major) May 25, 2000, and
    (non-Major) June 26, 2000.

[^18]: *See* Automated Return Letter for FCC File No. 0000072213 (dated
    May 2, 2000); Automated Return Letter for FCC File No. 0000072220
    (dated May 2, 2000); and Automated Return Letter for FCC File No.
    0000072221 (dated May 2, 2000). FCC File Nos. 0000072543 and
    0000072547 were amended by SDG&E before they were returned by L&TAB.
    *See also* 47 C.F.R. § 101.103. *See e.g.* San Diego Gas & Electric
    Company, *Order on Reconsideration*, 16 FCC Rcd 13,089 (WTB PSPWD
    2001) (*SDG&E Recon Order*).

[^19]: FCC File No. 0000079277 (filed Feb. 3, 2000).

[^20]: FCC File No. 0000079302 (filed Feb. 3, 2000).

[^21]: FCC File No. 0000079576 (filed Feb. 3, 2000).

[^22]: FCC File No. 0000079895 (filed Feb. 3, 2000).

[^23]: For site-based multiple address stations in the 928-929/952-960
    MHz and the 932-932.5/941-941.5 MHz bands, 47 C.F.R. §
    101.105(c)(3)(i) requires a minimum separation of from all existing
    stations and pending applications of 145 km (90mi.).

[^24]: *See* FCC File No. 0000079079 (filed Feb. 2, 2000), FCC File No.
    0000079084 (filed Feb. 2, 2000), FCC File No. 0000079282 (filed Feb.
    3, 2000), FCC File No. 0000079294 (filed Feb. 2, 2000), FCC File No.
    0000079321(filed Feb. 2, 2000), FCC File No. 0000079326 (filed Feb.
    2, 2000), FCC File No. 0000079570 (filed Feb. 3, 2000), FCC File No.
    0000079585 (filed Feb. 3, 2000), FCC File No. 0000079878 (filed Feb.
    3, 2000), FCC File No. 0000079924 (filed Feb. 3, 2000), FCC File No.
    0000079947 (filed Feb. 3, 2000), FCC File No. 0000080090 (filed Feb.
    3, 2000), FCC File No. 0000080591 (filed Feb. 3, 2000), FCC File No.
    0000080592 (filed Feb. 3, 2000), FCC File No. 0000080603 (filed Feb.
    3, 2000), FCC File No. 0000080629 (filed Feb. 3, 2000), FCC File No.
    0000080904 (filed Feb. 8, 2000), FCC File No. 0000080941 (filed Feb.
    8, 2000), FCC File No. 0000080959 (filed Feb. 8, 2000), FCC File No.
    0000080970 (filed Feb. 8, 2000), FCC File No. 0000082835 (filed Feb.
    8, 2000), FCC File No. 0000082851 (filed Feb. 8, 2000), FCC File No.
    0000082860 (filed Feb. 8, 2000), FCC File No. 0000082870 (filed Feb.
    8, 2000), FCC File No. 0000082894 (filed Feb. 8, 2000) and FCC File
    No. 0000082905 (filed Feb. 8, 2000). Note, however, that FCC File
    Nos. 0000079585 and 0000082851 were dismissed on May 10, 2001. FCC
    File No. 0000079585 was dismissed because Cal Water amended the
    proposed structure height, but did not obtain FAA clearance or file
    FCC Form 854. *See* Automated Dismissal Letter for FCC File No.
    0000079585 (dated May 10, 2001). FCC File No. 0000082851 was
    dismissed because Cal Water amended the proposed transmitter antenna
    height and the newly proposed height exceeds the proposed structure
    height. *See* Automated Dismissal Letter for FCC File No. 0000082851
    (dated May 10, 2001).

[^25]: FCC File No. 0000083147.

[^26]: FCC File No. 0000079570. On August 17, 2000, the Division granted
    Contra Costa's Nortonville application. Cal Water did not file an
    objection or a petition for reconsideration against the grant of the
    Contra Costa application.

[^27]: *See* Objection to California Water Service Company's
    Applications for 932/941 MAS Licenses, filed May 16, 2000
    (Objection).

[^28]: *Id*.

[^29]: *Id*.

[^30]: Objection (San Francisco objected to FCC File Nos. 0000079079,
    0000079282, 0000079326, 0000079878, 0000080904 0000082851, and
    0000082860). San Francisco stated that the related MAS applications
    "are known to conflict with the MAS master radio stations that the
    SFPUC \[San Francisco\] intends to license." *Id.* at 1.

[^31]: *Id.* at 5-7.

[^32]: *See* para. 4, *supra*; *see also* note 18, *supra,* and
    accompanying text regarding SDG&E applications and amendments: FCC
    File No. 0000072213, FCC File No. 0000072220, FCC File No.
    0000072221, FCC File No. 0000072543, and FCC File No. 0000072547.

[^33]: FCC File No. 0000072213, as amended, was granted on Sept. 28,
    2000; FCC File No. 0000072220, as amended, was granted Sept. 28,
    2000; FCC File No. 0000072221, as amended, was granted Oct. 2, 2000;
    FCC File No. 0000072543, as amended, was granted Aug. 25, 2000; and
    FCC File No. 0000072547, as amended, was granted Aug. 25, 2000.

[^34]: FCC File No. 0000138901 (filed May 24, 2000), FCC File No.
    0000138914 (filed May 24, 2000), FCC File No. 0000138925 (filed May
    24, 2000), and FCC File No. 0000222488 (filed Sept. 20, 2000).

[^35]: FCC File No. 0000138901 at Exhibit C; FCC File No 0000138914 at
    Exhibit C; FCC File No 0000138925 at Exhibit C; and FCC File
    No.0000222488 at Exhibit C. *See also* Objection at 5.

[^36]: *See* Automated Return Letter for FCC File No. 0000079079 (dated
    Feb. 7, 2001); Automated Return Letter for FCC File No. 0000079084
    (dated Feb. 7, 2001); Automated Return Letter for FCC File No.
    0000079277 (dated Feb. 7, 2001); Automated Return Letter for FCC
    File No. 0000079282 (dated Feb. 7, 2001); Automated Return Letter
    for FCC File No. 0000079294 (dated Feb. 7, 2001); Automated Return
    Letter for FCC File No. 0000079302 (dated Feb. 7, 2001); Automated
    Return Letter for FCC File No. 0000079321 (dated Feb. 7, 2001);
    Automated Return Letter for FCC File No. 0000079326 (dated Feb. 7,
    2001); Automated Return Letter for FCC File No. 0000079570 (dated
    Feb. 7, 2001); Automated Return Letter for FCC File No. 0000079576
    (dated Feb. 7, 2001); Automated Return Letter for FCC File No.
    0000079585 (dated Feb. 7, 2001); Automated Return Letter for FCC
    File No. 0000079878 (dated Feb. 7, 2001); Automated Return Letter
    for FCC File No. 0000079895(dated Feb. 7, 2001); Automated Return
    Letter for FCC File No. 0000079924 (dated Feb. 7, 2001); Automated
    Return Letter for FCC File No. 0000079947 (dated Feb. 7, 2001);
    Automated Return Letter for FCC File No. 0000080090 (dated Feb. 7,
    2001); Automated Return Letter for FCC File No. 0000080591 (dated
    Feb. 7, 2001); Automated Return Letter for FCC File No. 0000080592
    (dated Feb. 7, 2001); Automated Return Letter for FCC File No.
    0000080603 (dated Feb. 7, 2001); Automated Return Letter for FCC
    File No. 0000080629 (dated Feb. 7, 2001); Automated Return Letter
    for FCC File No. 0000080904 (dated Feb. 7, 2001); Automated Return
    Letter for FCC File No. 0000080941 (dated Feb. 7, 2001); Automated
    Return Letter for FCC File No. 0000080959 (dated Feb. 7, 2001);
    Automated Return Letter for FCC File No. 0000080970 (dated Feb. 7,
    2001); Automated Return Letter for FCC File No. 0000082835 (dated
    Feb. 7, 2001); Automated Return Letter for FCC File No. 0000082851
    (dated Feb. 7, 2001); Automated Return Letter for FCC File No.
    0000082860 (dated Feb. 7, 2001); Automated Return Letter for FCC
    File No. 0000082870 (dated Feb. 7, 2001); Automated Return Letter
    for FCC File No. 0000082894 (dated Feb. 7, 2001); and Automated
    Return Letter for FCC File No. 0000082905 (dated Feb. 7, 2001).

[^37]: FCC File No 0000082835 was dismissed on April 30, 2001 because
    Cal Water did not respond to the Commission's request for additional
    information. *See* Automated Dismissal Letter for FCC File No.
    0000082835 (dated April 30, 2001).

[^38]: *See* Settlement Agreement: California Water Service Company and
    the San Francisco Public Utility Commission, (dated Apr. 9, 2001)
    (Settlement Agreement). On Dec. 31, 2001, the parties amended the
    Settlement Agreement to reflect the sharing of only one of the
    frequency pairs, 932/941.30625. *See* Settlement Agreement, as
    amended, (Dec. 31, 2001).

[^39]: *See id.* at 1-2. The previously undisputed channels were
    requested by Cal Water in FCC File Nos. 0000079282 and 0000080090.

[^40]: *Id.* at 2.

[^41]: *Id*.

[^42]: *Id*. at 2-3.

[^43]: FCC File Nos. 0000472773 (filed May 24, 2001).

[^44]: *See* FCC File Nos. 0000079570 & 0000080591. We note that San
    Francisco failed to report that its application, FCC Filed No.
    0000472773, was also short-spaced with a third Cal Water
    application, FCC File No. 0000080904.

[^45]: *See* FCC File No. 0000472773 at Attachment A, Cover Letter.

[^46]: *See Order, supra* note Error: Reference source not found.

[^47]: *Id.* Specifically, Cal Water applications: FCC File No.
    0000079277 (filed Feb. 3, 2000); FCC File No. 0000079302 (filed Feb.
    3, 2000); FCC File No. 0000079576 (filed Feb. 3, 2000); FCC File No.
    0000079895 (filed Feb. 3, 2000); FCC Filed No. 0000079570 (filed
    Feb. 3, 2000); FCC File No. 0000079282 (filed Feb. 3, 2000); FCC
    File No. 0000082860 (filed Feb. 8, 2000). SDG&E applications: FCC
    File No. 0000072213 (filed Jan. 20, 2000), amended (Major -- with
    freq. coord.) May 23, 2000, and (non-Major) May 25, 2000; FCC File
    No. 0000072220 (filed Jan. 20, 2000), amended (Major -- with freq.
    coord.) May 23, 2000, and (non-Major) May 25, 2000; FCC File No.
    0000072221 (filed Jan. 20, 2000), amended (Major -- with freq.
    coord.) May 23, 2000, and (non-Major) May 25, 2000; FCC File No.
    0000072543 (filed Jan. 21, 2000), amended (Major -- with freq.
    coord.) May 23, 2000, (non-Major) May 25, 2000, and (non-Major) June
    26, 2000; FCC File No. 0000072547 (filed Jan. 21, 2000), amended
    (Major -- with freq. coord.) May 23, 2000, (non-Major) May 25, 2000,
    and (non-Major) June 26, 2000. Contra Costa application: FCC File
    No. 0000083147 (filed Feb. 17, 2000, amended (non-Major) June 29,
    2000)). *Order,* ¶¶ 1, 3-5, 11. The Contra Costa application was
    granted on August 17, 2000.

[^48]: The Division recognized that Cal Water\'s applications, which
    were filed in February, 2000, were short-spaced with the SDG&E
    applications. It noted that ordinarily, it would be expected that
    Cal Water's applications would have been dismissed as untimely
    because the SDG&E applications were filed first. However, it noted
    that the January 2000 applications filed by SDG&E were defective
    because they were filed without the required frequency coordination.
    On May 23, 2000, SDG&E amended its applications to include frequency
    coordination. Such amendments are major pursuant to 47 C.F.R. §
    1.929. Therefore, ordinarily such an amended application is treated
    as a new application, thereby initiating a new filing date.
    Consequently, the Division noted that SDG&E\'s applications should
    have received a filing date of May 23, 2000, which would have been
    considered untimely with regards to Cal Water\'s applications.
    *Id.*, ¶ 8. Similarly, the Division noted that on August 17, 2000,
    Contra Costa\'s Nortonville application was granted while Cal
    Water\'s earlier filed Stockton, San Carlos and Dillon Beach
    applications for frequency 932/941.28125 MHz were pending. *Id.*, ¶
    11. It noted that Contra Costa\'s application was filed nearly two
    weeks after Cal Water\'s Stockton, San Carlos and Dillon Beach
    applications and should have been dismissed as untimely pursuant to
    47 C.F.R. § 1.934(f). *Id.* It further noted, however, that Contra
    Costa\'s Nortonville application was erroneously granted on August
    17, 2000, and the last day to set aside the application or request
    reconsideration of the license grant was Friday, September 22, 2000.
    *Id.* The Division indicated that the errors described above are not
    ministerial and cannot be reversed after the set aside period has
    passed. Consequently, SDG&E and Contra Costa obtained exclusive
    rights to operate in the spectrum. *Id.*

[^49]: *Order,* ¶¶ 4-5.

[^50]: *Id.* ¶¶ 9-11.

[^51]: *Id. See infra* note 76 and accompanying text.

[^52]: *Id.* ¶¶ 9-10.

[^53]: *Id.* ¶ 11.

[^54]: *Id.* ¶¶ 1, 20.

[^55]: *See* Wireless Telecommunications Bureau Site-By-Site Action,
    *Public Notice,* Report No. 1238 (rel. July 24, 2002).

[^56]: *See supra* note Error: Reference source not found.

[^57]: AFR at 3.

[^58]: *Id.* at 3, 5-6.

[^59]: *Id*. at 3-4; *see* *also* 47 C.F.R. § 1.934(f).

[^60]: 47 C.F.R. § 1.935.

[^61]: *Id*.

[^62]: *MAS R&O*, 15 FCC Rcd 11,976 ¶ 53.

[^63]: 47 C.F.R. § 1.935.

[^64]: ^?^ *See* Implementation of Sections 3(n) and 332 of the
    Communications Act Regulatory Treatment of Mobile Services, *Third
    Report and Order*, 9 FCC Rcd 7988, 8131 ¶ 319 (1994).

[^65]: ^?^ *See* Amendment of Parts 2 and 90 of the Commission\'s Rules
    to Provide for the Use Of 200 Channels Outside the Designated Filing
    Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the
    Specialized Mobile Radio Pool, *Second Order on Reconsideration and
    Seventh Report and Order*, 11 FCC Rcd 2,639, 2686 ¶ 126 (1995).

[^66]: For key provisions of the Settlement Agreement, *see* para. 10
    *supra,*

[^67]: *Order,* 17 FCC Rcd at 12,753-4 ¶ 14. The *Order* cites the case
    of Plaincom Inc., *Memorandum Opinion and Order,* 15 FCC 11889,
    11893 ¶ 10 (2000) (*Plaincom MO&O)*, which indicates that Commission
    approval of a general process that does not adhere to the
    established first-filed application standard "would be unfair to
    tardy interested parties that refrain from filing" upon learning of
    a conflicting application.

[^68]: *See* AFR at 5.

[^69]: The following three applications were short-spaced with Cal Water
    applications that were the subject of the Settlement Agreement: (1)
    California American Water Company, FCC File No. 0000098115 (filed
    Mar. 20, 2000) was short-spaced with earlier filed Cal Water
    applications 0000079326 (filed Feb. 2, 2000) and 0000082851 (filed
    Feb. 8, 2000) on 941/932.35625 MHz.; (2) Contra Costa Water
    District, FCC File No. 0000083153 (filed Feb., 2000) was
    short-spaced with earlier Cal Water applications 0000080090 (filed
    Feb. 3, 2000), and 0000080904 (filed Feb. 8, 2000) on 941/932.30625
    MHz.; and (3) Santa Clara Valley Water District, FCC File No.
    0000078129 (filed Feb. 7, 2000) was short spaced with earlier Cal
    Water applications 0000080090 (filed Feb. 3, 2000), 0000080591
    (filed Feb. 3, 2000), and 0000080904 (filed Feb. 8, 2000) on
    941/932.30625 MHz.

[^70]: As seen in the Appendix by examining the listed untimely
    applications that conflict with Cal Water application FCC File Nos.
    0000079326, 0000080090, 0000080591, 0000080904, and 0000082851.

[^71]: They were late-filed in the sense that they did not comport with
    the first-come, first-served standard contemplated by the Commission
    for processing MAS applications. *See e.*g. letter from Mary Shultz,
    Chief, L&TAB to California American Water Company, dated Oct. 3,
    2000, in reference to FCC File no. 0000098115; *see also* letter
    from Mary Shultz, Chief, L&TAB to Contra Costa Water District, dated
    Sept. 14, 2000, in reference to File No. 0000083153; *see also*
    letter from Mary Shultz, Chief, L&TAB, to Santa Clara Valley Water
    District, dated Sept. 14, 2000, in reference to FCC File No.
    0000078129.

[^72]: *See* Appendix for a list of entities that filed untimely
    applications on frequencies requested in Cal Water's MAS
    applications.

[^73]: *See* note 49, *supra.* SDG&E, FCC File No. 0000072543 (filed
    Jan. 21, 2000), amended (Major -- with freq. coord.) May 23, 200,
    (non-Major) May 25, 2000, and (non-Major) June 26, 2000, was
    short-spaced with earlier Cal Water applications 0000079277 (filed
    Feb. 3, 2000) and 0000079302 (filed Feb. 3) on 941/932.38125 MHz.
    Contra Costa Water District, FCC File No. 0000083147 (filed Feb. 17,
    2000), amended (non-Major) June 29, 2000) was short-spaced with
    earlier Cal Water applications 0000079282 (filed Feb. 3, 2000),
    0000079570 (filed Feb. 3, 2000) and 0000082860 (filed Feb. 17, 2000)
    on 941/932.28125 MHz. SDG&E, FCC File No. 0000072221 (filed Jan. 20,
    2000), amended (Major -- with freq. coord.) May 23, 2000, and
    (non-Major) May 25, 2000) was short-spaced with earlier Cal Water
    application 0000079576 (filed Feb. 3, 2000) on 941/932.26875 MHz.
    SDG&E, FCC File No. 0000072213 (filed Jan. 20, 2000), amended (Major
    -- with freq. coord.) May 23, 2000, and (non-Major) May 25, 2000)
    was short-spaced with earlier Cal Water application 0000079576
    (filed Feb. 3, 2000) on 941/932.40625 MHz. SDG&E, FCC File No.
    0000072220 (filed Jan. 20, 2000), amended (Major -- with freq.
    coord.) May 23, 2000, and (non-Major) May 25, 2000) was short-spaced
    with earlier Cal Water application 0000079576 (filed Feb. 3, 2000)
    on 941/932.40625 MHz. SDG&E, FCC File No. 0000072547 (filed Jan. 21,
    2000), amended (Major -- with freq. coord.) May 23, 2000,
    (non-Major) May 25, 2000 , and (non-Major) June 26, 2000) was
    short-spaced with earlier Cal Water application 0000079895 (filed
    Feb. 3, 2000) on 941/932.39375 MHz.

[^74]: 47 C.F.R. § 1.113(a) states: "Within 30 days after public notice
    has been given of any action taken pursuant to delegated authority,
    the person, panel, or board taking the action may modify or set
    aside on its own motion."

[^75]: *See* County of San Mateo, California, *Memorandum Opinion and
    Order*, 16 FCC Rcd 16501, 16504 ¶ 10 (2001).

[^76]: *Id*.

[^77]: The Court of Appeals for the D.C. Circuit has stated that
    "granting an application 'due to the failure to engage in a
    comparative evaluation of competing applications,' as occurred here,
    is not the type of error that an agency may correct after the action
    becomes final. *Hirschey v. FERC*, 701 F.2d 215, 219 (D.C. Cir.
    1983).

[^78]: *See, e.g.,* DCT Greater Philadelphia, LLC, DCT Transmission,
    LLC, Applications for 39 GHz Point-to-Point Microwave Radio Station
    Authorization, 16 FCC Rcd 5706, 5707 (2001); Progressive Cellular
    III B-2; Application for Authorization to Construct a New Domestic
    Public Cellular Radio System for the Alaska 3-Haines RSA (Market No.
    317A), 15 FCC Rcd 1868, 1869 (2000); *see also* 47 C.F.R. § 1.935.

[^79]: AFR at 5.

[^80]: *See*, *e.g.*, Liberty Productions, L.P., *et al.*, *Memorandum
    Opinion and Order*, 16 FCC Rcd 12061, 12065-67 ¶¶ 10-13 (2001).

[^81]: Objection at 2-3. San Francisco's current system uses telephone
    lines complemented by VSAT for communication. *Id*. at 4.

[^82]: *Id*. at 3 San Francisco plans to use the channels to provide
    coverage of seventy-eight remote sites. *Id*. Eventually coverage
    will extend to over 300 remote sites. *Id*.

[^83]: *See e.g.* File No. 0000138925 Exhibit B at 2.

[^84]: *Id*. at 1 *citing* File Numbers 79079, 79282, 79326, 79878,
    80904, 82851, 82860.

[^85]: *Id*. at 8.

[^86]: *Id*. at 6.

[^87]: *Id*. at 7.

[^88]: *See e.g.* File No. 0000079079 Exhibit B.

[^89]: *Id*.

[^90]: *Id*.

[^91]: *Id*.

[^92]: San Francisco Objection at 6.

[^93]: *MAS R&O*, 15 FCC Rcd at 11,985 ¶ 74; 47 C.F.R. § 101.1323(b).

[^94]: Amendment of the Commission's Rules Regarding Multiple Address
    Systems, *Memorandum Opinion and Order*, 16 FCC Rcd 12,181, 12,184 ¶
    6 (2001).

[^95]: ^?^ Pursuant to Section 1.108 of our Rules, the Commission may,
    on its own motion, set aside any action made or taken by it within
    thirty days from the date of public notice of the action. *See* 47
    C.F.R. § 1.108; Revisions to Cable Television Rate Regulations,
    *Order*, 17 FCC Rcd 15,974 (2002). For purposes of the *MAS R&O*,
    public notice of the Commission's action commenced on the day of the
    Federal Register publication date, April 3, 2000, 47 C.F.R. §
    1.4(b)(3), and the decision became final on the same date. Our
    authority to revisit final actions is limited to the correction of
    clerical errors that underlie or occur in the process of taking
    action, such as a mathematical miscalculation, or a license that
    omits or misstates a frequency, or a document that omits an intended
    party or provision. County of San Mateo, California, *Memorandum
    Opinion and Order*, 16 FCC Rcd 16,501, 16504 ¶ 10 (2001).

[^96]: *See* Nextel Communications, Inc., *Order*, 14 FCC Rcd 11,678,
    11,693 ¶ 34 n.124 *citing* *Jelks v. FCC*, 146 F.3^rd^ 878, 881
    (1998) (a subordinate body like the Division cannot alter a policy
    set by the Commission itself); *see also*, Daniel R. Goodman,
    Receiver; Dr. Robert Chan, 13 FCC Rcd 21,944 21,965-21966 ¶ 38 n.141
    *citing* Mary Ann Salvatoriello, *Memorandum Opinion and Order*, 6
    FCC Rcd 4705, 4707-4708 ¶ 22 (1991) (requested relief is not
    available where it would be contrary to an applicable statute or
    rule).

[^97]: Withdrawn frequencies become available for applicants to file for
    them after the withdrawal appears on Public Notice. *See Plaincom
    MO&O*, 15 FCC Rcd at 11,893 ¶ 9.

[^98]: San Francisco Objection at 5; (FCC File No. 0000138901 at Exhibit
    C; FCC File No. 0000138914 at Exhibit C; FCC File No. 0000138925 at
    Exhibit C; and FCC File No. 0000222488 at Exhibit C (May 24, 2000
    Applications, Exhibit C); FCC File No. 0000472773 (filed May 24,
    2001).

[^99]: Objection at 8-9.

[^100]: *Id.* at 3-4.

[^101]: *Id.* at 4.

[^102]: 47 C.F.R. § 1.934(f).

[^103]: AFR at 3-4.

[^104]: 47 C.F.R. § 1.925(b)(3)(i).

[^105]: 47 C.F.R. § 1.925(b)(3)(ii).

[^106]: *WAIT* *Radio v. FCC*, 413 F.2d 1153, 1157 (D.C. Cir. 1969)
    (*WAIT Radio*) aff'd, 459 F.2d 1203 (1972) cert. denied, 409 U.S.
    1027 (1972) *citing Rio Grande Family Radio Fellowship, Inc. v.
    FCC*, 406 F.2d 664 (D.C. Cir. 1968); Birach Broadcasting
    Corporation, *Memorandum Opinion and Order*, 2003 WL 202677 (2003).

[^107]: *WAIT* *Radio v. FCC*, 413 F.2d at 1157 n.9; Family Stations,
    Inc. v. Directv, Inc, *Memorandum Opinion and Order*, 2002 WL
    31841569 ¶ 7 (2002).

[^108]: 47 C.F.R. § 1.934(f).

[^109]: 47 C.F.R. § 101.101 note 1.

[^110]: *See e.g. McElroy Electronics Corp. v.* FCC, 86 F.3d 248 (D.C.
    Cir. 1996).

[^111]: ^?^ Wireless Telecommunications Bureau Announces the Grant of
    Licenses to Operate in the Multiple Address Bands*,* *Public
    Notice,* 17 FCC Rcd 5956 (2002).

[^112]: 47 C.F.R. §§ 1.948 and 101.1321(b).

[^113]: 47 C.F.R. § 101.1323.