Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of License of      | *  |                              |
|                                  | *) |                              |
| CAL WESTERN TERMITE & PEST       | ** |                              |
| CONTROL, INC.                    |    |                              |
|                                  | *  |                              |
| For Conventional Business        | *) |                              |
| Station KVL499, Modjeska and     | ** |                              |
| Mount Lukens, California         |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted: July 17, 2001 Released: July 20, 2001**

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

# I. INTRODUCTION

1.  We have before us a petition for reconsideration filed by Cal
    Western Termite & Pest Control, Inc. (Cal Western).[^1] Cal Western
    seeks reconsideration of the cancellation of its authorization to
    operate Conventional Business Station KVL499, Modjeska and Mount
    Lukens, California.[^2] For the reasons set forth below, we dismiss
    Cal Western's reconsideration petition because it was filed in the
    wrong location. After reviewing the record, we decline to take any
    action to reinstate Cal Western's license on our own motion because
    we find that Cal Western has not alleged or demonstrated that the
    license cancellation was procured by fraud on the Commission's
    processes.

    **II. BACKGROUND**

2.  Cal Western was authorized to operate Station KVL499 at Mount
    Lukens, California on frequency pair 806/851.9625 MHz. In November
    1992, the Commission received an FCC Form 405-A submitted in the
    name of Cal Western requesting cancellation of the authorization for
    Station KVL499.[^3] The completed FCC Form 405-A was dated November
    18, 1992 and signed by a Cal Western owner.[^4] Pursuant to that
    application, the Commission cancelled Cal Western's license on
    December 7, 1992. Cal Western asserts that it first learned that its
    license had been cancelled on September 22 or 23, 1993, when the Cal
    Western owner learned from another individual that Cal Western's
    license had been cancelled.[^5]

3.  On October 4, 1993, the Commission's Gettysburg, PA office, via
    facsimile, received Cal Western's Petition.[^6] In the Petition, Cal
    Western states that a Cal Western owner signed, without reading, the
    FCC Form 405-A in order to facilitate a contractual agreement
    between Cal Western and Lucky's Two Way Radio (Lucky's) to move Cal
    Western's repeater operations to the Mount Lukens/Santiago Peaks,
    California area.[^7] Cal Western alleges that through
    misrepresentation and deception, Lucky's cancelled Cal Western's
    license without Cal Western's knowledge."[^8] Cal Western states
    that it did not intentionally cancel its license or authorize anyone
    to cancel its license and that it seeks reinstatement.[^9] On
    October 29, 1993, Cal Western submitted, via facsimile, a Supplement
    to the Commission's Gettysburg, PA Office.[^10] In the Supplement,
    Cal Western urges the Commission to accept its late-filed pleading
    because Cal Western did not receive notice of the license
    cancellation and the license cancellation was procured, allegedly,
    by fraud.[^11]

    **III. DISCUSSION**

4.  We dismiss Cal Western's petition because it was not filed at the
    correct location. Section 1.106(i) of the Commission's Rules
    provides that a petition for reconsideration must be submitted to
    the Secretary, Federal Communications Commission, Washington, D.C.
    20554.[^12] The Commission maintains different offices for different
    purposes, and persons filing documents with the Commission must take
    care to ensure that their documents are filed at the correct
    location specified in the Commission's Rules.[^13] Applications and
    other filings not submitted in accordance with the correct addresses
    or locations will be returned to the filer without processing.[^14]
    A document is filed with the Commission upon its receipt at the
    location designated by the Commission.[^15] Accordingly, the plain
    language of the Commission's Rules indicates that a petition for
    reconsideration submitted to the Commission's Gettysburg,
    Pennsylvania, office is not properly filed.[^16]

5\. Based on a review of our records, it does not appear that the
Petition was ever filed with the Office of the Secretary. Therefore, we
find that the Petition was not timely filed in the proper location.
Moreover, Cal Western did not request a waiver to allow it to file its
reconsideration petition in Gettysburg, as opposed to filing it with the
Office of the Secretary. Consequently, absent a waiver, we conclude that
Cal Western's Petition should be dismissed as improperly filed.

6\. Even when a proper petition for reconsideration is not filed, we
will consider taking action on our own motion in cases where there is
fraud upon the Commission's processes.[^17] In this case, however, there
is insufficient evidence before us to conclude that the cancellation of
Cal Western's license was procured by fraud on the Commission's
licensing processes. Cal Western alleges that Lucky's allegedly induced
Cal Western to sign an incomplete FCC Form 405-A by making false
statements. Cal Western states that the incomplete FCC Form 405-A was
signed because Cal Western relied on Lucky's representations that the
form was needed to move Cal Western's repeater operations.[^18] Lucky's
then allegedly completed and submitted FCC Form 405-A to cancel Cal
Western's authorization. Cal Western admits that a Cal Western owner
signed the FCC Form 405-A. As such, the issue of fraud does not touch
upon the Commission's processes, but rather, solely involves
interactions between and actions by Cal Western and Lucky's. When the
issue of fraud does not implicate the Commission's processes, the
Commission has consistently declined to take action to undo final
assignments or cancellations of licenses.[^19] Moreover, given that a
Cal Western owner signed the FCC Form 405-A, it is unclear whether any
fraud occurred.[^20] By signing the FCC Form 405-A, the Cal Western
owner certified, under penalty of perjury, that the information
contained on the form was correct. With respect to the dispute between
Cal Western and Lucky's as to whether their agreement authorized or
required the cancellation of Cal Western's license, the proper forum for
resolving that private contractual dispute is a court of competent
jurisdiction.[^21] Based on the record before us, we find that Cal
Western has not alleged or demonstrated fraud on the Commission's
processes that would warrant taking action on our own motion to undo the
license cancellation.

**IV. CONCLUSION**

7\. We dismiss Cal Western's petition for reconsideration because it was
filed in the wrong location. Additionally, we decline to take action to
reinstate Cal Western's license on our own motion because Cal Western
has not alleged or demonstrated that the license cancellation was
procured by fraud on the Commission's processes. Therefore, we dismiss
Cal Western's reconsideration petition and supplement.

V.  **ORDERING CLAUSES**

    8\. Accordingly, IT IS ORDERED pursuant to Sections 4(i) and 405 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    405, and Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106,
    the petition for reconsideration and the "Motion for Acceptance of
    Late Filed Pleading and Supplement to Request for Reconsideration"
    submitted by Cal Western Termite & Pest Control, Inc., and received
    in Gettysburg, Pennsylvania on October 4, 1993, and October 29,
    1993, respectively, ARE DISMISSED.

    9\. 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]: Letter from Marcus D. Canipe, owner Cal Western Termite & Pest
    Control, Inc., to FCC, Gettysburg, PA (received Oct. 4, 1993)
    (Petition).

[^2]: Petition at 1.

[^3]: Application for Renewal of Radio Station License and/or
    Notification of Change of to License Information, FCC Form 405-A,
    filed by John A. Lemm Sr., on behalf of Cal Western Termite & Pest
    Control, Inc. (dated Nov. 18, 1992) (Form 405-A). FCC Form 405-A was
    used to change the name or address of a licensee, to renew a
    license, or to cancel a license.

[^4]: *Id*.

[^5]: *See* Declaration of John A. Lemm, Sr., dated October 29, 1993 at
    8 ¶¶ 9-10, attached as Exhibit B to Motion for Acceptance of
    Late-Filed Pleading and Supplement to Request for Reconsideration,
    filed by Arthur B. Cook, Esq., Hill, Farrer & Burrill, on behalf of
    Cal Western Termite & Pest Control, Inc., to Terry L. Fishel, Chief,
    Land Mobile Branch (Oct. 29, 1993) (Supplement).

[^6]: Petition at 1.

[^7]: *Id*.; Supplement at Exhibit B 8-9 ¶ 12.

[^8]: Petition at 1.

[^9]: *Id*.

[^10]: *See* Supplement. We note that Cal Western filed its Supplement,
    partly in response to a letter sent on behalf of Lucky's to one of
    Cal Western's owners subsequent to the filing of Cal Western's
    reconsideration petition. *Id*. at 3. *See* Letter from Mr. Dennis
    C. Brown, Esq., Brown and Schwaninger, to Mr. Marcus D. Canipe, Cal
    Western Termite & Pest Control, Inc. (Oct. 22, 1993). Cal Western
    also filed a response to pleadings filed by James A. Kay, Jr., the
    owner of Lucky's. *See* Reply to Opposition to Motion of Acceptance
    of Late Filed Pleading and Opposition to Request for Reconsideration
    and Opposition to Supplement to Request for Reconsideration filed by
    Arthur B. Cook, Esq., Hill, Farrer & Burrill, on behalf of Cal
    Western Termite & Pest Control, Inc. (Nov. 22, 1993).

[^11]: Supplement at 2. On November 9, 1993 and December 2, 1993 James A
    Kay, Jr., filed pleadings contesting Cal Western's claims, including
    Cal Western's fraud allegations. *See* Opposition to Motion of
    Acceptance of Late Filed Pleading and Opposition to Request for
    Reconsideration and Opposition to Supplement to Request for
    Reconsideration, filed by James A. Kay, Jr. (Nov. 9, 1993);
    Supplement to Opposition to Motion of Acceptance of Late Filed
    Pleading and Opposition to Request for Reconsideration and
    Opposition to Supplement to Request for Reconsideration filed by
    James A. Kay, Jr. (Dec. 2, 1993).

[^12]: 47 C.F.R. § 1.106(i).

[^13]: 47 C.F.R. § 0.401.

[^14]: *Id.*

[^15]: 47 C.F.R. § 1.7; First Auction of Interactive Video and Data
    Service (IVDS) Licenses, Request for Waiver of Applications
    Deadline, *Memorandum Opinion and Order*, 11 FCC Rcd 1134, 1135
    (1996); Complaints Regarding Cable Programming Services Prices,
    *Amended Order on Reconsideration*, 10 FCC Rcd 12778, 12780 n.14
    (CSB 1995).

[^16]: *See*, *e*.*g*., Memorandum of Agreement between the Federal
    Communications Commission and Elkins Institute Inc., *Order on
    Reconsideration*, 14 FCC Rcd 5080 (WTB 1999) (determining that a
    facsimile copy to a division office neither complied with the
    Commission's Rules nor ameliorated the late filing with the
    Secretary's office); Columbia Millimeter Communications, LP, *Order
    on Reconsideration*, 14 FCC Rcd 2782 (WTB PSPWD 1999) (finding that
    a petition for reconsideration sent to the Commission's lock box at
    Mellon bank neither complied with the Commission's Rules nor
    ameliorated the late filing with the Secretary's office), *aff'd*.,
    *Order on Reconsideration*, 15 FCC Rcd 10251 (WTB PSPWD 2000).

[^17]: *See* *e.g.*, Champion Communications Services, Inc., *Order*, 15
    FCC Rcd 12832 (WTB PSPWD 2000); Comtex Communications, Inc.,
    *Order*, 15 FCC Rcd 11730 (WTB PSPWD 2000).

[^18]: *See* Supplement at Exhibit B p. 8-9 ¶ 12.

[^19]: *See e.g.* Applications of Clarklift of San Jose, Inc., and Moore
    Material Handling Group, *Order on Further Reconsideration*, DA
    01-116 ¶ 9 n.27 (PSPWD 2001); Edison Cellular, *Memorandum Opinion
    and Order on* *Reconsideration*, 8 FCC Rcd 2736, 2337 n.9 (CCB
    1993); TV-8, Inc., *Memorandum Opinion and Order*, 2 FCC Rcd 1218,
    1220 n.10 (1987).

[^20]: *See e.g.* P&P Enterprises, Inc., Cullen Electric Co., and Will
    County Well & Pump Co., Inc., *Memorandum Opinion and Order*, 15 FCC
    Rcd 8418, 8419 ¶ 3 (WTB ENF 1999).

[^21]: *See Listener's Guild, Inc., v. FCC*, 813 F.2d 465, 469 (D.C.
    Cir. 1987).