**FEDERAL COMMUNICATIONS COMMISSION**

445 12^th^ Street, SW

Washington, DC 20554

**DA No. 07-434**

January 31, 2007

Donald J. Evans, Esq.

Fletcher, Heald & Hildreth

1300 N. 17^th^ Street

Arlington, VA 22209

Re: [File No. 0001332167, Call Sign WPWR222]{.underline}

Dear Mr. Evans:

For the reasons stated below, the Mobility Division hereby dismisses, as
procedurally defective, the petition of Lawrence V. Behr (Behr) for a
hearing, pursuant to Section 1.110 of the Commission's rules.[^1] In his
Section 1.110 Petition,[^2] Behr requests that we vacate the grant of
the above-referenced application to modify his Phase I 220 MHz license
and set for hearing the denial of Behr's Petition for Waiver---filed
with the application---of Section 90.725(f),[^3] which requires
construction of Behr's Phase I 220 MHz license, Call Sign WPWR222, in 12
months.[^4]

Section 1.110, by its terms only applies when "the Commission without a
hearing grants any application in part, or with any privileges, terms,
or conditions other than those requested" by the applicant.[^5] The
Wireless Telecommunications Bureau granted Behr's application in full;
as such, Behr is effectively seeking a hearing regarding the denial of
his Petition for Waiver. We find that Behr is not entitled to a Section
1.110 hearing. As the Commission stated in an analogous context:

> This amounts to a contention that a licensee, by requesting waiver of
> any Commission rule in his \[ \] application, can obtain an
> evidentiary hearing \[under Section 1.110\] on whether it should apply
> to him. Such an argument is clearly without substance. [^6]

If Behr's interpretation of Section 1.110 were correct, then the denial
of any request for relief, [provided such request happened to be
attached to an application]{.underline}, would entitle the requestor to
an evidentiary hearing under Section 1.110.[^7] The public interest
would be ill served if the Commission were required to devote its
limited resources to conducting Section 1.110 hearings *ad nausem*. The
Commission's rules, moreover, provide two well-established vehicles for
challenging the denial of relief on delegated authority---petitions for
reconsideration and applications for review.[^8] We note that Behr did
not seek relief via either vehicle by the applicable filing deadline of
December 12, 2003 (30 days from the denial of his Petition for Wavier).

We also note that because Behr failed to construct WPWR222 by the
applicable 12-month deadline, the license cancelled automatically on
January 8, 2004 pursuant to Section 90.725(f).[^9]

Accordingly, pursuant to Section 4(i) of the Communications Act of 1934,
as amended, 47 U.S.C. § 154(i), the Section 1.1110 request filed by
Lawrence V. Behr on December 17, 2003, IS DISMISSED.

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 COMMUNCATIONS COMMISSION
>
> Lloyd W. Coward
>
> Deputy Chief, Mobility Division
>
> Wireless Telecommunications Bureau

[^1]: 47 C.F.R. § 1.110.

[^2]: Letter dated December 17, 2003, from Donald J. Evans, counsel to
    Laurence V. Behr, to Marlene H. Dortch, Secretary, FCC (Section
    1.110 Petition).

[^3]: 47 C.F.R. § 90.725(f).

[^4]: *See* Letter dated November 12, 2003, from Ronald B. Fuhrman,
    Deputy Chief, Technical Analysis Section, Commercial Wireless
    Division, to Donald J. Evans, counsel to Laurence V. Behr (denying
    waiver request).

[^5]: Section 1.110 provides further that "the action of the Commission
    shall be considered as a grant of such application unless the
    applicant shall, within 30 days from the date on which such grant is
    made or from its effective date if a later date is specified, file
    with the Commission a written request rejecting the grant as made.
    Upon receipt of such request, the Commission will vacate its
    original action upon the application and set the application for
    hearing . . . ."

[^6]: *See* Requests for Exemption From or Waiver of the Provisions of
    Section 73.242 of the Commission\'s Rules, *Memorandum Opinion and
    Order*, 8 FCC2d 1, 4 (1967), *aff'd*, Buckley-Jaeger v. FCC, 397
    F.2d 651 (D.C Cir. 1968).

[^7]: *See* Buckley-Jaeger v. FCC, 397 F.2d at 656 ("It is also clear
    that section 1.110 of the Commission\'s rules has no application
    here. The rule concerns situations where the applicant receives less
    than a full authorization. But here Appellant received the full
    authorization to which it was entitled under the statute and rules.
    In these circumstances we do not believe the rule can reasonably be
    interpreted as making a hearing mandatory.").

[^8]: *See* 47 C.F.R. §§ 1.106, 1.115.

[^9]: 47 C.F.R. § 90.725(f) ("systems not constructed and placed in
    operation, or having commenced service, within twelve months from
    the date of initial license grant cancel automatically").