Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                | *  |                              |
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| Superior Technologies, Inc.     | ** |                              |
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| Paging and Radiotelephone       | *  |                              |
| Service Call Sign KNKD293 on    | *) |                              |
| the 152.84 MHz Channel at       | ** |                              |
| Manistique and Newberry,        |    |                              |
| Michigan                        | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

Adopted: October 5, 2001 Released: October 9, 2001

By the Deputy Chief, Commercial Wireless Division, Wireless
Telecommunications Bureau:

1.  The Commercial Wireless Division (Division) of the Wireless
    Telecommunications Bureau (Bureau) has before it an Emergency
    Request for Relief (Request) filed by Superior Technologies, Inc.
    (Superior) on October 26, 1999. Superior seeks reconsideration of a
    determination by the Division's Licensing and Technical Analysis
    Branch (LTAB) that Superior has no authority under Paging and
    Radiotelephone Service Call Sign KNKD293 to operate facilities at
    Manistique and Newberry, Michigan.[^1] For the reasons stated below,
    we deny Superior's Request.

2.  On April 17, 1987, the former Mobile Services Division (MSD) of the
    Common Carrier Bureau[^2] denied Superior's request for an extension
    of time to construct facilities at the Manistique and Newberry sites
    and accordingly terminated its authorization for those sites.[^3] In
    the *1999 Letter Ruling*, LTAB observed that Superior's
    authorization to operate the Manistique and Newberry sites was
    terminated in 1987 and directed Superior to cease operations.
    Despite acknowledging receipt of the *1987 Letter Ruling*, Superior
    argues that the ruling had no legal effect because Superior did not
    have an opportunity to seek reconsideration.[^4] Superior does not
    explain how its ability to seek reconsideration was impaired.
    Indeed, Superior itself concedes that it received the *1987 Letter
    Ruling*,[^5] which specified Superior's right to seek
    reconsideration. Although captioned as an Emergency Request for
    Relief, the Request substantively is a belated petition for
    reconsideration. Superior cannot now blame the Commission for its
    failure to timely seek reconsideration of the *1987 Letter Ruling*.

3.  Even assuming *arguendo* that Superior can at this late date contest
    the *1987 Letter Ruling*, its substantive arguments fail. Superior
    claims that the *1987 Letter Ruling* did not terminate its authority
    to operate the Manistique and Newberry sites because the Commission
    did not issue a formal public notice deleting these sites from its
    licensing database.[^6] Superior cites no Commission rule, policy or
    case that would have required the Commission to issue such a formal
    public notice, nor are we aware of any. Superior next argues that
    the authorization for Manistique and Newberry remained effective,
    notwithstanding the *1987 Letter Ruling*, because the sites remained
    on the licensing database. Superior claims that a Notice of Proposed
    Rulemaking (NPRM) stands for the proposition that an authorization
    remains effective until removed from the Commission's licensing
    database.[^7] The NPRM does not lend any support to Superior's
    argument. Rather, the NPRM provides that frequencies are unavailable
    for further *reassignment* until removed from the database.[^8] The
    infirmity of Superior's argument is further underscored by the fact
    that Commission rules have long provided that an authorization
    terminates automatically for failure to construct or provide service
    to the public for a specified period.[^9] Removal from the licensing
    database is not the *sine qua non* of a license termination. The
    fact that the Manistique and Newberry sites were not removed from
    the licensing database in 1987 does not vitiate the legal import of
    the *1987 Letter Ruling*.

4.  As noted above, the Manistique and Newberry sites were not removed
    from the licensing database, as they should have been, in 1987. On
    April 14, 1997, Superior filed applications to modify these sites.
    On February 23, 1998, LTAB, unaware of the *1987 Letter Ruling*,
    issued a modified authorization for the Manistique and Newberry
    sites. Superior argues that LTAB's issuance of the modified
    authorization "constituted the Commission's final decision on the
    matter," superceding the *1987 Letter Ruling*.[^10] LTAB's issuance
    of the authorization in 1998 was void *ab initio* and does not bind
    the Commission. First, at the time it filed the modification
    application, Superior had no authority to operate at either site.
    Superior's application to modify these unauthorized sites therefore
    was defective. Second, LTAB had no authority to grant the
    application even if it were an application for two *new* sites
    because the Commission froze paging spectrum in 1996.[^11] Had LTAB
    been cognizant of the *1987 Letter ruling*, it would not have
    granted the 1997-modification application. Courts have long
    recognized that administrative agencies may set aside agency action
    resulting from inadvertent, ministerial error.[^12] LTAB's
    correction of the Commission's Universal Licensing Database in
    September 1999 to delete the Manistique and Newberry sites from
    Superior's authorization for Station KNKD293 therefore was proper.

5.  Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 405
    of the Communications Act, as amended, 47 U.S.C. §§ 154(i) and 405,
    and Sections 0.331 and 1.106 of the Commission's rules, 47 C.F.R. §§
    0.331 and 1.106, the Request for Emergency Relief filed by Superior
    Technologies, Inc. on October 26, 1999 is denied.

    FEDERAL COMMUNICATIONS COMMISSION

    Katherine M. Harris

> Deputy Chief
>
> Commercial Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: Letter dated September 27, 1999 from Roger Noel, Chief, Licensing
    and Technical Analysis Branch, to Timothy E. Welch, Esq., Counsel to
    Superior (*1999* *Letter Ruling*). The Branch also found that
    Superior did not have authority to operate at Baraga, Iron River and
    Ishpeming, Michigan. *Id*. Superior's Request is limited to the
    Manistique and Newberry sites.

[^2]: The MSD became the Commercial Wireless Division in December, 1994.

[^3]: *See* Letter dated April 17, 1987 from Kevin J. Kelley, Chief,
    Mobile Services Division, Common Carrier Bureau, to Timothy E.
    Welch, Esq., Counsel to Superior (*1987 Letter Ruling*). The *1987
    Letter Ruling* was directed to Superior's predecessor-in-interest,
    Supercom, Inc.

[^4]: Request at n.4.

[^5]: *Id*. at 4.

[^6]: *Id*. at 5.

[^7]: *Id.*, citing Amendment of Part 90 of the Commission's Rules
    Concerning Construction, Licensing, and Operation of Private Land
    Mobile Radio Stations, *Notice of Proposed Rulemaking,* 5 FCC Rcd
    6401 (1990).

[^8]: *See* 5 FCC Rcd 6408 at n.15.

[^9]: *See, e.g.*, 47 C.F.R. 90.155(a) (1991) (automatic termination for
    failure to construct and place into operation private land mobile
    station within 8 months from date of grant); 47 C.F.R § 24.403(c)
    (1994) (automatic expiration of PCS license for failure to timely
    construct). *See also* 47 C.F.R. § 1.946(c) (1999) (automatic
    termination for failure to timely commence service, or meet coverage
    or substantial service requirements in each wireless radio service).

[^10]: Request at 3.

[^11]: *See* In the Matter of Revision of Part 22 and Part 90 of the
    Commission\'s Rules to Facilitate Future Development of Paging
    Systems, WT Docket No. 96-18, and Implementation of Section 309 (j)
    of the Communications Act-Competitive Bidding, PP Docket No. 93-253,
    *Notice of Proposed Rulemaking*, 11 FCC Rcd. 3108 (1996). The
    Commission suspended acceptance of new paging applications because
    of the proposed transition from site-by-site licensing to geographic
    area licensing for all paging services licensed on an exclusive,
    non-nationwide basis. The Commission continued to accept
    applications for fill-in sites. Fill-in sites include modifications
    of existing transmitter sites or additions of new transmitter sites
    that do not increase the licensee's interference contour. *Id.* at
    ¶140.

[^12]: *See* American Trucking Ass'n v. Frisco Transp. Co., 358 U.S.
    133, 145-46 (1958) (correction of ICC certificate \[trucking
    license\]); Chlorine Instit. v. OSHA, 613 F.2d 120, 123 (5th Cir.)
    (correction of agency regulation), *cert. denied*, 449 U.S. 826
    (1980). *See also* In re Application of Bell Atlantic-Pennsylvania,
    Inc., *Order*, 14 FCC Rcd. 13415 (Commercial Wireless Div., Policy
    and Rules Branch 1999) (set aside of license grant); Interstate
    Broadcasting Co., *Hearing Designation Order*, 2 FCC Rcd. 4051
    (Audio Services Div. 1987) (set aside of license grant).