**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Application of )

)

ROBERT FETTERMAN D/B/A ) File No. 26735-CD-P/L-01-93

RF COMMUNICATIONS )

)

For Authority to Operate a New )

Domestic Public Land Mobile Radio )

Service Station on the Frequency )

454.125 MHz at St. Clair, Pennsylvania )

**ORDER**

**Adopted: May 4, 2001 Released: May 7, 2001**

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

# Introduction

1.  This order addresses the Petition for Reconsideration filed by
    Robert Fetterman d/b/a RF Communications (RF) on January 19,
    2000.[^1] RF seeks reconsideration of a December 20, 1999 order of
    the Wireless Telecommunications Bureau, Commercial Wireless Division
    (Division), which granted the Petition to Dismiss or Deny filed by
    Richard Blyler d/b/a Lebanon Mobilfone (Lebanon) on August 20, 1993,
    denied the above-captioned application, and denied the Motion to Set
    Aside filed by RF on September 9, 1993.[^2]

# Background

2.  In July 1993, RF applied to operate a Domestic Public Land Mobile
    Radio Service station on 454.125 MHz at St. Clair, Pennsylvania.[^3]
    On August 20, 1993, Lebanon filed a Petition to Dismiss or Deny
    Fetterman's application (Petition to Dismiss), stating that its
    station (KSV940) was already authorized for the frequency 454.125
    MHz at Lebanon, Pennsylvania, and that operation of the proposed RF
    facilities at St. Clair would cause harmful electrical interference
    to its co-channel facilities at Lebanon.[^4] In addition, on
    September 9, 1993, RF filed a Motion to Set Aside Lebanon's
    authorization for the 454.125 MHz frequency facilities at Lebanon,
    and an Opposition to the Petition to Dismiss or Deny filed by
    Lebanon.

3.  In its Motion to Set Aside, RF argued that Lebanon did not have a
    valid authorization for frequency 454.125 MHz because that frequency
    was not included on the construction permit issued to Lebanon in
    1979.[^5] RF also argued that it relied on the Commission's
    licensing database to determine the existence of possible co-channel
    licenses and the database did not indicate any facilities licensed
    to Lebanon on 454.125 MHz at this location.[^6] In its *Order*, the
    Division noted that, although Lebanon's 1979 construction permit did
    not list 454.125 MHz, the June 11, 1979 Public Notice of grant of
    the application did list the frequency,[^7] which the Division found
    to provide proof that the frequency had been granted to Lebanon.[^8]
    The Division further found that the omission of the frequency from
    Lebanon's original construction permit was a clerical error that had
    been subsequently corrected.[^9]

4.  In its Petition for Reconsideration, RF presents four arguments: (1)
    that the Division erred when it found that the June 1979 *Public
    Notice* was proof that the Commission authorized Lebanon to use
    454.125 MHz; (2) that the June 1979 *Public Notice* did not provide
    sufficient notice to later applicants; (3) that Lebanon did not seek
    to correct the omission of 454.125 MHz from its authorization on a
    timely basis, and is therefore estopped from claiming authority to
    operate on the frequency; and (4) that Lebanon had a duty to inform
    the Commission of any error on the instrument of authorization.[^10]
    RF also contends generally that the Division did not address the
    legal arguments raised in RF's Motion to Set Aside.[^11]

# Discussion

5.  We have analyzed the Petition for Reconsideration and conclude that
    the *Order* was correctly decided. First, we reject the argument
    that the June 1979 *Public Notice* does not constitute evidence that
    Lebanon was authorized to operate on frequency 454.125 MHz. A Public
    Notice is not a construction permit; rather, it provides evidence of
    the Commission's grant of an authorization and provides notice of
    such a grant to the public. The June 1979 *Public Notice*
    specifically indicated that Lebanon's application requesting
    authority to operate on 454.125 MHz was granted.[^12] Although the
    construction permit inadvertently failed to list the frequency, this
    omission was a clerical error that was subsequently corrected.
    Administrative agencies have the authority to correct inadvertent,
    ministerial errors, and we conclude that such authority was properly
    exercised in this matter.[^13]

6.  RF argues that the June 1979 *Public Notice* did not provide
    sufficient notice to later applicants of Lebanon's right to operate
    on 454.125 MHz, and that RF relied to its detriment on the
    Commission's database in determining whether its proposed operation
    would cause interference.[^14] We do not find this argument
    persuasive. Applicants have been cautioned that Commission databases
    and lists are unofficial records that should not be relied on
    because of possible inconsistencies between such databases and the
    primary sources of information, including public notices.[^15]

7.  Moreover, even if we accepted RF's argument that it did not receive
    sufficient notice, RF has failed to show detrimental harm. At the
    time of the filing of RF's application, it could not have been
    processed because it would have conflicted with Lebanon's
    earlier-filed application. The clerical error in failing to include
    454.125 MHz on Lebanon's authorization does not operate as either a
    dismissal of Lebanon's application, or as a revocation of Lebanon's
    license, either of which would be necessary in order to find RF's
    application suitable for grant. Further, RF's application for
    authority to operate on 454.125 MHz would not have been included in
    a mutually exclusive filing group with Lebanon's application, as
    RF's application was filed almost 15 years after the expiration of
    the applicable cut-off period.

8.  RF further argues that, by virtue of the omission of 454.125 MHz
    from Lebanon's construction permit, Lebanon received only a partial
    grant of authority under our rules with respect to its applications,
    and forfeited any right to 454.125 MHz because it did not seek to
    have the partial grant corrected within 30 days of the issuance of
    the license.[^16] Because we have concluded that the failure to list
    454.125 MHz on the initial construction permit was an administrative
    error, we reject the claim that this was a partial grant and find
    that Lebanon did not forfeit its right to operate on the channel.
    The issuance of a partial grant would have required the Bureau to
    inform the applicant of the reasons that its application was granted
    only in part or was otherwise subject to any terms or conditions
    other than those normally applied to applications of the same type.

9.  RF argues that Lebanon is barred under the doctrine of laches from
    asserting a right to the 454.125 MHz frequency[^17] and claims that
    Lebanon failed to perform its duty to inform the Commission of any
    error in the authorization issued by the Commission. We find no
    merit to these arguments. The party alleging laches has the burden
    of establishing that it "has been prejudiced by \[another party's\]
    inexcusable delay in asserting a known right."[^18] The record shows
    that, prior to the filing of RF's application, Lebanon sought on
    multiple occasions to notify the Commission of the error and have
    its authorization corrected to specifically include the
    inadvertently omitted frequency.[^19] Under these circumstances, we
    find that RF has failed to show inexcusable delay on Lebanon's part
    in asserting its rights.

10. Further, RF states that its Motion to Set Aside is incorporated into
    its Petition, and argues that the *Order* failed to address certain
    arguments raised in its Motion.[^20] First, RF states that the
    Commission acted improperly when it modified Lebanon's authorization
    without requiring Lebanon to file a modification application.[^21]
    We find no merit in this argument because the "modification" that RF
    references was not in fact a modification, but rather the correction
    of the clerical error in failing to include 454.125 MHz on Lebanon's
    construction permit. As set forth above, the June 1979 *Public
    Notice* specifically indicated that Lebanon's application requesting
    authority to operate on 454.125 MHz was granted. Thus, the August
    1993 license correction and reissuance of Lebanon's authorization
    was not a subsequent license modification to add a frequency for
    which Lebanon had not previously sought authority to operate.

11. Second, RF argues that Lebanon's August 5, 1993 letter to the Mobile
    Services Division[^22] seeking correction of its authorization
    constituted a violation of the Commission's *ex parte* rules.[^23]
    We need not reach the merits of RF's *ex parte* argument, however,
    because RF was not prejudiced by Lebanon's contact with the Mobile
    Services Division, which was a further attempt in its ongoing effort
    to correct its authorization to include the inadvertently omitted
    frequency.[^24] Nonetheless, even if one assumes, *arguendo*, that
    Lebanon's August 5, 1993 letter to the Mobile Services Division was
    an inappropriate *ex parte* contact, RF still was not prejudiced by
    the contact because RF's application could not be granted under the
    circumstances as described above. As indicated herein, the
    Commission's clerical failure to include 454.125 MHz on Lebanon's
    construction permit does not result in a revocation of Lebanon's
    license, nor does it operate as a dismissal of Lebanon's
    earlier-filed application.

12. 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 sections 0.331and 1.106 of the Commission's rules, 47 C.F.R. §§
    0.331, 1.106, the Petition for Reconsideration filed on January 19,
    2000 by Robert Fetterman d/b/a RF Communications IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Katherine M. Harris, Deputy Chief

Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: RF Petition for Reconsideration, filed January 19, 2000 (Petition
    for Reconsideration).

[^2]: Robert Fetterman, *Order*, DA 99-2839 (Wir. Tel. Bur., Comm.
    Wireless Div., rel. Dec. 20, 1999) (*Order*).

[^3]: *See Public Notice*, Report No. PMS-93-42 (Com. Car. Bur., rel.
    July 21, 1993).

[^4]: Petition to Dismiss at 2.

[^5]: Motion to Set Aside at 3.

[^6]: *Id.* at 2.

[^7]: *Public Notice*, No. 966-A (Com. Car. Bur., rel. June 11, 1979)
    (June 1979 *Public Notice*). The Public Notice stated, in the
    section identified as "ACTIONS TAKEN" in the Domestic Public Land
    Mobile Radio Service, the following: "Richard F. Blyler: d/b/a
    Lebanon Mobilefone (KSV-940) GRANTED C.P. for additional facilities
    to operate on 454.300 & 454.125 MHz at Loc. #2: Sand Hill Road, 2.75
    miles North of Lebanon, PA (20523-CD-P-79)(2-way)."

[^8]: *Order* at 2.

[^9]: *Id.*

[^10]: Petition for Reconsideration at 1-2.

[^11]: *Id.* at 3.

[^12]: *See* June 11, 1979 *Public Notice*.

[^13]: *Chlorine Institute v. OSHA*, 613 F.2d 120, 123 (5^th^ Cir.),
    *cert. denied*, 449 U.S. 826 (1980); *see* *American Trucking Ass'n
    v. Frisco Transportation Co.*, 358 U.S. 133, 145-46 (1958).

[^14]: Petition for Reconsideration at 4.

[^15]: *See* Mobilfone of Northeastern Pennsylvania, Inc., *Memorandum
    Opinion and Order*, 5 FCC Rcd 7414, 7415, ¶ 10 (Com. Car. Bur. 1990)
    (citing Commission rule section 0.434(e), 47 C.F.R. § 0.434(e)); B &
    B Communications, Inc., *Order on Reconsideration*, 1986 WL 290989,
    File No. 23962-CD-P/L-85, ¶ 3 (Com. Car. Bur. 1986).

[^16]: Petition for Reconsideration at 3; Opposition to Petition to
    Dismiss or Deny at 4-5.

[^17]: Petition for Reconsideration at 3.

[^18]: Western Union International, Inc*.*, *Memorandum Opinion and
    Order*, 70 FCC 2d 1896, 1903, ¶ 36 (1979).

[^19]: *See* Lebanon's Opposition to RF's Petition for Reconsideration,
    filed January 27, 2000, at 7. On March 13, 1980, Lebanon filed FCC
    Form 403 with the Commission indicating the completion of
    construction and specified both frequencies, including the
    inadvertently omitted frequency, 454.125 MHz. On June 19, 1986,
    Lebanon filed a letter seeking correction of its authorization. On
    February 7, 1989, Lebanon filed an application to renew its license
    and included frequency 454.125 MHz. In its renewal application,
    Lebanon also referenced its filing of the June 19, 1986 letter
    seeking correction. On February 15, 1990, Lebanon again filed a
    letter seeking correction of its authorization. On August 5, 1993,
    Lebanon filed its third letter seeking correction of its
    authorization.

[^20]: Petition for Reconsideration at 3.

[^21]: Motion to Set Aside at 2.

[^22]: The Mobile Services Division of the Common Carrier Bureau
    subsequently became the Commercial Wireless Division of the Wireless
    Telecommunications Bureau.

[^23]: *Id.* at 4-5; s*ee* 47 C.F.R. § 1.1200.

[^24]: *See* fn. 19, *supra.*