Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

FEDERAL EXPRESS CORPORATION ) File No. D066388

)

Application for Five 900 MHz Business Category )

Channels in the Boston, Massachusetts area )

And Associated Request for )

Waiver of the Commission's Rules )

**MEMORANDUM OPINION AND ORDER**

**Adopted:** February 22, 2000 **Released:** February 25, 2000

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

# INTRODUCTION

1\. On January 11, 1999, Federal Express Corporation (FedEx) filed a
Petition for Reconsideration[^1] of the December 11, 1998 action by the
Licensing and Technical Analysis Branch (Branch) of the Public Safety
and Private Wireless Division dismissing the above-captioned
application.[^2] We deny the petition for the reasons set forth below.

# BACKGROUND

2\. FedEx was authorized, under Call Sign WNXJ987, to operate a trunked
private land mobile radio (PLMR) system in the vicinity of Logan
International Airport, Boston, Massachusetts, (Logan Airport) using five
900 MHz Business Category channels. The license for Call Sign WNXJ987
carried a five-year term that was scheduled to expire on September 25,
1996. FedEx states that it mailed a renewal application to the
Commission on August 15, 1996,[^3] but our licensing records do not
reflect the receipt of any such application. Consequently, the license
for Call Sign WNXJ987 was deemed to have expired as of September 26,
1996,[^4] and was deleted from the FCC's automated licensing database on
December 13, 1996.[^5]

3\. FedEx states that it discovered the deletion of Call Sign WNXJ987 on
December 19, 1996, and thereupon contacted the Chief of the Special
Facilities Section of the Land Mobile Branch of the former Licensing
Division[^6] and faxed her a copy of the application mailed to the FCC
in August.[^7] FedEx states that she told it on December 23, 1996, to
file another application because she could not locate any renewal
application.[^8]

4\. On December 23, 1996, Hub Folding Box, Fischbach & Moore, Perini
Corp., and Industrial Communications & Electronics, Inc., (referred to
collectively as \"the *Four Applicants*\") submitted a set of five
applications (referred to collectively as \"the *Five Applications*\")
to the Personal Communications Industry Association, Inc. (PCIA), the
Commission-certified frequency coordinator for 900 MHz Business Category
channels.[^9] The *Four Applicants* proposed to operate a trunked
community repeater on four of the five channels formerly licensed to
Call Sign WNXJ987, at a location 21.7 miles from FedEx's Logan Airport
facility.[^10]

5\. FedEx submitted the above-captioned application to reinstate the
license for Call Sign WNXJ987 on December 24, 1996, almost 90 days after
the date on which the license for Station WNXJ987 expired.[^11] The
application was not coordinated.

6\. PCIA subsequently certified the *Five Applications*. PCIA forwarded
them to the Commission between January 15, 1997, and February 5,
1997.[^12]

7\. The Branch returned FedEx's December 24 application on April 30,
1997, for correction and resubmittal[^13] on the grounds that, because
it was submitted more than 30 days after the license expired, it was a
new application that required frequency coordination rather than a
reinstatement application which did not.[^14] FedEx then asked PCIA to
provide a frequency coordination request for the operations proposed in
the December 24 application, but PCIA declined to do so because FedEx's
Logan Airport site with less than 55 miles from the facility proposed in
the previously-coordinated *Five Applications*.[^15] FedEx resubmitted
its application on May 30, 1997, along with a request for waiver of the
frequency coordination requirement.[^16] The *Four Applicants* opposed
FedEx's application.[^17]

8\. By letter dated December 11, 1998, the Branch denied FedEx's *Waiver
Request* and dismissed the above-captioned application.[^18] The Branch
concluded that FedEx had not demonstrated unique circumstances or a lack
of reasonable alternatives justifying a waiver of the Commission's
Rules.[^19] The Branch also found that FedEx had not demonstrated that
it would serve the public interest to waive the Rules to allow FedEx\'s
defective application to be processed because this would in turn cause
dismissal of the *Five Applications*, which were properly coordinated
and filed in accordance with the Commission's Rules.[^20] The Branch
stated that it would continue to process the *Five Applications.*[^21]
FedEx filed a petition for reconsideration of the *Branch Letter* on
January 11, 1999.

9\. FedEx has continued to operate former Station WNXJ987 pursuant to
special temporary authority.[^22] FedEx states that the facility is
critical to its package delivery network because Logan Airport is
FedEx's northeast regional sort facility, one of only 14 regional
sorting operations worldwide.[^23] FedEx states that it uses the five
channels for security, maintenance, loading and offloading of aircraft,
and other safety-related requirements at Logan Airport.[^24] With regard
to alternatives, FedEx states that it holds approximately 750 Commission
licenses and routinely assesses whether to contract out its radio
communications operations, but has concluded that maintaining its own
private radio system is still the best option for it.[^25] Moreover,
FedEx states that it contacted other entities licensed in the Logan
Airport vicinity and found that they cannot provide the access or
capacity that FedEx requires for its business operations.[^26]

# discussion

10\. FedEx requested a waiver of the Commission's Rules to permit the
reinstatement of its license for Station WNXJ987 without new frequency
coordination, even though the application was filed more than 30 days
after the license expired. Former Section 90.151 of the Commission's
Rules required that waiver requests demonstrate that unique
circumstances are involved and that no reasonable alternative is
available.[^27] We agree with the Branch that this standard has not been
met.

11\. FedEx contends on reconsideration that the Branch erred in
concluding that the *Waiver Request* failed to satisfy the elements
necessary to obtain the relief requested.[^28] Specifically, FedEx
states that the circumstances of this case are unique because it
maintains approximately 750 Commission licenses, and it filed the
renewal for Station WNXJ987 using the same procedures it routinely used
for its other licenses.[^29] FedEx contends that it had no reason to
suspect that the renewal application would simply "disappear" and that
it demonstrated diligence by monitoring the database and immediately
reacting upon learning of the deletion.[^30] It also contends that,
given its operational needs, it has no reasonable alternative to the
continued operation of its Logan Airport facility.[^31] FedEx further
contends that we should therefore reconsider the *Branch Letter* and
grant the *Waiver Request* as well as the above-captioned application.

12\. The *Four Applicants* respond that the Branch correctly determined
that the circumstances herein are not sufficiently unusual to support a
waiver.[^32] Moreover, they contend that FedEx was not reasonably
diligent in meeting its responsibility to ensure that its license was
renewed.[^33] Finally, the *Four Applicants* argue that FedEx also
failed to show that reasonable, even if less than ideal, communication
alternatives are unavailable to support its Logan Airport operations or
that it has considered acquiring replacement spectrum from an existing
licensee.[^34]

13\. We agree with the *Four Applicants* that FedEx has not demonstrated
that it diligently prosecuted its renewal application. Even assuming
*arguendo* that FedEx mailed the application -- we nonetheless note that
the record in this proceeding only establishes that the application was
prepared and placed in a mail tray in FedEx's office -- FedEx failed to
follow through adequately. For example, under the Rules applicants have
the option to receive a date-stamped copy indicating FCC receipt of an
application.[^35] FedEx either did not avail itself of this option, or
failed to timely note that it did not receive its date-stamped copy from
the Commission. Also, it appears that FedEx failed to keep track of
whether the check for the renewal fee was deposited.[^36] Further, we
are not persuaded by FedEx's contention that it had no reason to suspect
anything was amiss with the August 1996 application until Station
WNXJ987 was deleted from the database. We do not believe that monitoring
the database is a highly effective method of determining the status of
one's renewal application given that the deletion of a license from the
database would not occur until the 30-day reinstatement period
expired.[^37]

14\. We also note the Commission's strong interest in preserving the
clarity of when other applicants may permissibly file for expired PLMR
licenses.[^38] We believe that granting FedEx's *Waiver Request* and
reinstating its canceled license, under the circumstances presented
here, would frustrate the goal of providing a date certain upon which
other PLMR eligibles may file an application for the channel and area
covered by an expired license.[^39]

15\. Finally, we note that Fed Ex does not offer specific, supported
claims of erroneous conclusions of fact or law that would require
reversal of the *Branch Letter*.[^40] In this connection, we acknowledge
FedEx\'s contention[^41] that the Commission retained discretion to
waive the reinstatement/late-filed renewal rules when warranted by
particular circumstances such as those presented in *New York City
Transit*.[^42] Briefly, in *New York City Transit* the Commission waived
the reinstatement/late-filed renewal rules over the objection of a
potential applicant for the channels involved after finding that:

\[T\]he proposed system is a unique one, involving the safety of
millions of passengers on thousands of buses, and it is totally
dependent on retention of the 20 channels at issue. The safe and
efficient operation of the urban mass transportation system for the
largest city in the United States would be seriously compromised by
cancellation of these licenses.[^43]

16\. This precedent does not assist FedEx because the present case does
not involve the extraordinary public interest considerations found in
*New York City Transit*. We also note that FedEx\'s *Waiver Request* was
opposed by other *pending* applicants who filed applications at a time
when the channels in question were available for reassignment. By
contrast, the waiver request in *New York City Transit* was opposed by a
*potential* applicant; moreover, the channels involved in *New York City
Transit* had not been made available for reassignment to other
applicants.[^44]

# CONCLUSION

17\. In sum, FedEx's license expired; thus, it retained no authorization
to operate on the five channels after such expiration except for the
special temporary authority that it has received to do so. We are not
persuaded that FedEx's contention that it did not discover that its
renewal application was lost in the mail until after the license had
expired and was deleted from the Commission's licensing database
justifies a waiver of the frequency coordination rules. We find no error
with the Branch's denial of the *Waiver Request*.

# ORDERING CLAUSES

18\. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and Section
1.106 of the Commission's Rules, 47 C.F.R. § 1.106, that the Petition
for Reconsideration filed by Federal Express Corporation on January 11,
1999, IS DENIED.

19\. IT IS FURTHER ORDERED that the Emergency Motion for Stay Pending
Reconsideration filed by Federal Express Corporation on December 31,
1998, IS DISMISSED AS MOOT.

20\. IT IS FURTHER ORDERED that the special temporary authority for
Federal Express Corporation to operate on the subject 900 MHz Business
Category Channels in the Boston, Massachusetts area under Call Sign
WNXJ987 is terminated as of 30 days from the release of this *Memorandum
Opinion and Order*.

21\. This action is taken under delegated authority pursuant to Sections
0.131 and 0.331 of the Commission\'s Rules, 47 C.F.R. §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION

D\'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: *See* Petition for Reconsideration filed by Federal Express Corp.
    on January 11, 1999 (*Petition*). FedEx also filed a Motion to Stay
    the Branch action pending the outcome of its *Petition*. *See*
    Emergency Motion for Stay Pending Reconsideration filed by FedEx on
    December 31, 1998 *(Motion)*. The *Motion* was opposed. *See*
    Opposition to Emergency Motion for Stay filed by Hub Folding Box,
    Fischbach & Moore, Perini Corp., and Industrial Communications &
    Electronics, Inc. on January 13, 1999. Because this *Memorandum
    Opinion and Order* resolves the *Petition*, we dismiss the *Motion*
    as moot.

[^2]: *See* Letter from Mary M. Shultz, Chief, Licensing and Technical
    Analysis Branch, Public Safety and Private Wireless Division,
    Wireless Telecommunications Bureau, to Pamela Gaary, Richard Rubin
    and Robert E. Stup, Jr., Ref. No. PS&PWD-LTAB-603 (Dec. 11, 1998)
    (*Branch Letter*).

[^3]: *Petition* at 3.

[^4]: *See* 47 C.F.R. § 90.149(b) (1996).

[^5]: *Branch Letter* at 1.

[^6]: Pursuant to an internal reorganization in 1997, the pertinent
    duties of the former Licensing Division relating to private wireless
    applications are now administered by the Public Safety and Private
    Wireless Division.

[^7]: *Petition* at 4.

[^8]: *Id.* at 5.

[^9]: *Id.* at 6. Most applications for new PLMR assignments, including
    the 900 MHz Business Category channels involved in this proceeding,
    must include evidence of frequency coordination. 47 C.F.R. §§
    90.127(a), 90.175.

[^10]: *See* FCC File Nos. D067119 (Hub Folding Box), D067118 (Fischbach
    & Moore), D067120 (Perini Corp.), and D069339 (Industrial
    Communications & Electronics, Inc. (Industrial)). Industrial also
    separately requested the fifth channel. *See* FCC File No. D067810.

[^11]: *Petition* at 5*.*

[^12]: *Branch Letter* at 1.

[^13]: Application Return Notice for the Private Land Mobile Radio
    Services (April 30, 1997). We note that the Branch should have
    returned the application to FedEx without processing, rather than
    returning it for correction and resubmittal. Return for correction
    and resubmittal, which permits the applicant to retain its place in
    the processing line if it timely resubmits the application, *see* 47
    C.F.R. § 90.611(f), is proper only for applications that are
    "substantially complete," 47 C.F.R. § 90.611(a). An application that
    lacks evidence of required frequency coordination (or a request for
    waiver of the requirement) is not substantially complete. *See*
    Waste Management, Collection & Recycling, Inc., *Memorandum Opinion
    and Order*, FCC 99-134, at n. 37 (rel. June 21, 1999). Thus, we do
    not consider the December 24 application to have been filed at that
    time.

[^14]: *See* 47 C.F.R. §§ 90.149(a), 90.175 introductory paragraph
    (1997).

[^15]: *Id.* at 6. *See* 47 C.F.R. § 90.621(b)(4).

[^16]: Federal Express Corporation Request for Rule Waiver filed on May
    30, 1997 (*Waiver Request*).

[^17]: *See* *Five Applicants* Petition to Deny filed on May 6, 1997.
    *See also* Federal Express Corporation Opposition filed on May 30,
    1997, and *Five Applicants* Reply filed on June 11, 1997.

[^18]: *Branch Letter* at 2-3.

[^19]: *Id.* at 2.

[^20]: *Id.*

[^21]: *Id.* at 3.

[^22]: According to our licensing records, the special temporary
    authority is scheduled to expire on June 5, 2000.

[^23]: *Waiver Request* at 9; *Petition* at 14-15.

[^24]: *Waiver Request* at 9; *Petition* at 14-15.

[^25]: *Petition* at 16-17.

[^26]: *Id.* at 17.

[^27]: 47 C.F.R. § 90.151(a) (1998) (now 47 C.F.R. § 1.925(b)(3)).

[^28]: *See Petition* at 8-14.

[^29]: *Id.* at 11.

[^30]: *Id.* at 12.

[^31]: *Id.* at 18.

[^32]: *Opposition* at 4.

[^33]: *See* *id.* at 5-6.

[^34]: *See* *id.* at 7-8; Opposition to Emergency Motion for Stay filed
    by Hub Folding Box, Fischbach & Moore, Perini Corp., and Industrial
    Communications & Electronics, Inc. on January 13, 1999, at 7.

[^35]: 47 C.F.R. § 1.1110(f) (1996); *see also* Establishment of a Fee
    Collection Program to Implement the Provisions of the Omnibus Budget
    Reconciliation Act of 1989, *Memorandum Opinion and Order*, Gen.
    Docket No. 86-285, 5 FCC Rcd 3558, 3567 ¶ 18 (1990) (date stamped
    courtesy copies are available by mail to applicants who provide an
    extra copy of the submission together with a stamped, self-addressed
    envelope).

[^36]: *Opposition* at 6.

[^37]: Amendment of Parts 1 and 90 of the Commission's Rules Concerning
    the Construction, Licensing, and Operation of Private Land Mobile
    Radio Stations, *Report and Order*, PR Docket No. 90-481, 6 FCC Rcd
    7297, 7301 ¶ 24 (1991) (*PLMR Report*).

[^38]: *See, e.g., PLMR Report,* 6 FCC Rcd at 7300-01 ¶¶ 19-21;
    Amendment of Parts 1 and 90 of the Commission's Rules Concerning the
    Construction, Licensing, and Operation of Private Land Mobile Radio
    Stations, *Memorandum Opinion and Order*, PR Docket No. 90-481, 8
    FCC Rcd 6690, 6690-91 ¶¶ 3-5 (1992).

[^39]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1159 (D.C. Cir. 1969), *cert.
    denied*, 409 U.S. 1027 (1972).

[^40]: Petitions for reconsideration must, where appropriate, cite the
    findings of fact and/or conclusions of law which the petitioner
    believes to be erroneous. *See* 47 C.F.R. § 1.106(d)(2).

[^41]: *See* *Motion* at 1.

[^42]: *See* New York City Transit Authority, *Memorandum Opinion and
    Order*, 4 FCC Rcd 4488 (1988) (*New York City Transit*).

[^43]: *Id.* at 4489 ¶ 12.

[^44]: *Id.* at 4489 n. 17; *see also* Industrial Communications &
    Electronics, Inc., *Order on Reconsideration,* 13 FCC Rcd 8417 (WTB
    CWD 1998).