**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of )

)

ARUNDEL TRUNKED PARTNERSHIP )

(WPCW469) ) File Nos. D034339 and D038278

)

JAMES W. BYRNES III (WPCQ532) ) D038286

)

JUDITH K. WARDEN (WPBQ236) ) D034423 and D038281

)

ROBERT J. ZAMITO (WPCE521) ) D038283

)

NORMA BECKETT (WPCV604) ) D034388 and D038288

)

PCK SYSTEMS (WPCV999) ) D033927 and D038277

)

PAUL W. RUTTER (WPFI336) ) D038279

)

BRUCE L. JONES (WPCQ473) ) D034287 and D038289

)

MICHAEL J. SAMPLE (WPCD806) ) D033909 and D038280

)

JAMES R. JENSEN, JR. (WPCV922) ) D034392 and D038285

)

ROKK ASSOCIATES (WPCW428) ) D038284

)

ROKK ASSOCIATES (WPBU529) ) D038282

)

GERALD CROZIER (WPCW503) ) D038287

)

Applications for Modification of )

Phase I Non-Nationwide Licenses )

)

**MEMORANDUM OPINION AND ORDER**

**Adopted: March 6, 2000 Released: March 10, 2000**

By the Commission:

**I. INTRODUCTION**

1.  We have before us an Application for Review filed on May 20, 1996,
    by Arundel Trunked Partnership, James W. Byrnes III, Judith K.
    Warden, Robert J. Zamito, Norma Beckett, PCK Systems, Paul W.
    Rutter, Bruce L. Jones, Michael J. Sample, James R. Jensen, Jr.,
    ROKK Associates, and Gerald Crozier (jointly, the Petitioners),
    seeking review of the denial of the Petitioners' request for a
    waiver of section 90.753(c) of the Commission's rules. In addition,
    we have a petition for reconsideration filed by the Petitioners on
    June 22, 1998 seeking partial reconsideration of the *220 MHz
    Memorandum Opinion and Order on Reconsideration*.[^1] Both of these
    pleadings deal with the same issue, and therefore, for
    administrative convenience, we respond to them in a consolidated
    order. For the reasons discussed below, we grant the Petitioners'
    Application for Review and dismiss as moot the Petitioners' petition
    for reconsideration of the *220 MHz Memorandum Opinion and Order*.

**II. BACKGROUND**

2.  In 1993, the Commission granted each of the twelve Petitioners a
    non-nationwide Phase I 220 MHz license. Unable to construct at the
    location specified in its original authorization, each of the
    Petitioners filed a request for Special Temporary Authority (STA) to
    operate from an alternative site. Each of the STA requests was filed
    with Mellon Bank on January 23, 1996, and was granted on January 29,
    1996.

3.  On January 26, 1996, the Commission adopted a limited modification
    procedure in the *220 MHz Second Report and Order* whereby
    non-nationwide licensees were able to relocate their authorized base
    stations to unauthorized locations.[^2] Under one option, a licensee
    that had been granted an STA to operate at an alternative base
    station location could modify its license to seek permanent
    authorization at that location, regardless of the distance from the
    originally licensed site.[^3] This option, however, was conditioned
    on the licensee having constructed its base station and placed it in
    operation at the STA site, or having taken delivery of its base
    station transceiver, on or before January 26, 1996.[^4]

4.  On March 4, 1996, Police Emergency Radio Services, Inc. (PERS) and
    Bostom & Associates Co., Inc. (Bostom), managers of Petitioners\'
    220 MHz licenses, filed on behalf of the Petitioners a petition for
    clarification or reconsideration of the modification procedures
    established in the *220 MHz Second Report and Order* (Bostom and
    PERS Petition).[^5] Specifically, they asked the Commission to
    clarify that licensees that had submitted requests for an STA as of
    the January 26 adoption date of the *220 MHz Second Report and
    Order*, and that otherwise met the requirements of section
    90.753(c)(2) of the Commission\'s rules, would be able to modify
    their facilities to seek permanent authorization at their STA sites
    even if the STA was granted after January 26, 1996.[^6] In addition
    to the Bostom and PERS Petition, each of the Petitioners, except
    Gerald Crozier (Crozier),[^7] also requested a waiver of section
    90.753(c) of the Commission\'s rules, in case the Commission denied
    the Bostom and PERS Petition, when they filed their letters of
    intent to file a modification application.[^8]

5.  On April 19, 1996, the Land Mobile Branch (Branch) [^9] of the
    Commercial Wireless Division of the Wireless Telecommunications
    Bureau (Bureau) denied the requested waivers on the basis that
    granting a waiver at that time would prejudge the issue raised in
    the Bostom and PERS Petition.[^10] The twelve Petitioners
    subsequently filed an Application for Review of the Branch\'s denial
    of their request for a waiver of section 90.753(c).[^11]

6.  On May 21, 1998, the Commission released the *220 MHz Memorandum
    Opinion and Order on Reconsideration*, which addressed various
    petitions for reconsideration of the *220 MHz Second Report and
    Order* and *220 MHz Third Report and Order*.[^12] In relevant part,
    the Commission denied the Bostom and PERS Petition and clarified
    that it was the Commission\'s intent that the relief provided for
    220 MHz licensees operating under STAs be restricted to those
    licensees who had been *granted* STAs on or before January 26,
    1996.[^13] The Commission based this conclusion on language in the
    *220 MHz Second Report and Order* which indicated that a licensee
    must have already had an STA to be able to relocate under section
    90.753(c) of the Commission\'s rules, and the fact that the
    modification procedures created in the *220 MHz Second Report and
    Order* replaced the need for STAs for relocation.[^14] Moreover,
    because Commission rules caution applicants to file STA applications
    at least 10 days prior to the date of proposed operation, the
    Commission noted that licensees who filed an STA application after
    January 23, 1996, could not reasonably have expected to receive an
    STA prior to the construction deadline of February 2, 1996.[^15] On
    June 22, 1998, Petitioners filed a petition for partial
    reconsideration of the *220 MHz Memorandum Opinion and Order*.[^16]

**III. DISCUSSION**

7.  We first note that, although all of the Petitioners are included in
    the Application for Review, there is no evidence that Crozier
    submitted a waiver request for Station WPCW503, nor did the *Waiver
    Denial Letter* include his license. Without a showing of good reason
    why it was not possible for him to participate in the earlier stages
    of the proceeding, the Application for Review of Gerald Crozier is
    therefore dismissed for failure to meet the requirements of section
    1.115 of the Commission's rules.[^17]

8.  Turning to the other Petitioners, they initially argue that their
    requests for a waiver of section 90.753 of the Commission\'s rules
    should not have been acted upon because they were contingent on the
    Commission denying the relief sought in the Bostom and PERS
    Petition.[^18] Petitioners contend that if any action was to be
    taken on their waiver requests, the Bureau was prohibited by section
    0.331(a)(2) of the Commission\'s rules[^19] from doing so because
    the issue was pending before the Commission and \"there was no
    outstanding Commission precedent or guideline for the Bureau to
    follow.\"[^20] From this, the Petitioners conclude that the *Waiver
    Denial Letter* is procedurally defective and therefore, the waiver
    requests should be reconsidered.[^21]

9.  We agree with the Petitioners that it was premature for the Branch
    to dismiss their waiver requests. In the *Waiver Denial Letter*, the
    Branch specified that \"a waiver is inappropriate in this case since
    the issue relates to a recent Commission decision and the Commission
    has this issue before it on reconsideration \[to the *220 MHz Second
    Report and Order*\].\"[^22] However, the *Waiver Denial Letter*
    concluded by stating that \"\[t\]he waivers are therefore
    denied.\"[^23] Waiver of section 90.753(c) of the Commission\'s
    rules was only necessary if the Commission reached the conclusion
    that a licensee could only relocate under section 90.753(c) of the
    Commission\'s rules if it had been granted an STA as of January 26,
    1996 (*i.e.*, if the Bostom and PERS Petition was denied).
    Therefore, the Branch should not have acted upon the Petitioners'
    requests for waiver until such time as the Commission decided the
    issue raised by the Bostom and PERS Petition on reconsideration.

10. Because the Commission has acted on the Bostom and PERS Petition, we
    find it appropriate now to address the merits of the Petitioners\'
    request for a waiver of section 90.753 of the Commission\'s rules.
    In general, a request for waiver must show that: (1) the underlying
    purpose of the rule would not be served or would be frustrated by
    application to the instant case, and that a grant of the requested
    waiver would be in the public interest; or (2) in view of the unique
    or unusual circumstances of the instant case, application of the
    rule would be inequitable, unduly burdensome or contrary to the
    public interest, or the applicant has no reasonable
    alternative.[^24] Petitioners argue that their case involves unique
    circumstances because they had ordered equipment and completed
    construction of their respective stations at sites authorized by an
    STA granted by the Branch only one business day after the deadline
    imposed by the *220 MHz Second Report and Order*.[^25] Petitioners
    contend that the date when the STA would be granted was a
    circumstance beyond their control.[^26] Moreover, Petitioners
    contend that a waiver is appropriate in this case because their
    proposed relocations are beyond the maximum distances allowed in
    sections 90.753(a) and (b), and therefore, \"waiver would be the
    only means . . . \[to\] continue to provide new, competitive service
    to end users.\"[^27]

11. We conclude that waiver is appropriate in the Petitioners' case.
    Petitioners filed their STA requests on January 23, 1996, ten days
    before the then-existing construction deadline. We believe that
    strict application of the rule in the Petitioners' case would be
    inequitable because most, if not all, of the STA applications filed
    by other 220 MHz licensees by January 23 were acted upon by January
    26, 1996, and therefore qualified for relief. If the Bureau had
    acted on Petitioners' STA applications by January 26, Petitioners
    would have been able to relocate under the procedure allowed under
    section 90.753(c). In addition, we believe that it is in the public
    interest for Petitioners to continue to provide service to the
    public, including emergency medical service providers.

12. Finally, with respect to Petitioners' petition for reconsideration
    of the *220 MHz Memorandum Opinion and Order*, we first note that
    the petition is moot with respect to all the Petitioners with the
    exception of Crozier because we have granted a waiver of section
    90.753(c). As to Crozier, because the record does not indicate that
    he filed a request for waiver of section 90.753(c), we must address
    his petition for reconsideration to the *220 MHz Memorandum Opinion
    and Order*. Since Crozier's petition, however, fails to raise any
    new arguments that were not addressed in the *220 MHz Memorandum
    Opinion and Order*, we deny Crozier's petition for reconsideration.

**IV. ORDERING CLAUSES**

13. Accordingly, IT IS ORDERED that pursuant to our authority under
    sections 4(i) and 405 of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 154(i) and 405, and section 1.115 of the Commission\'s
    rules, 47 C.F.R. § 1.115, the Application for Review filed by
    Arundel Trunked Partnership, James W. Byrnes III, Judith K. Warden,
    Robert J. Zamito, Norma Beckett, PCK Systems, Paul W. Rutter,
    Bruce L. Jones, Michael J. Sample, James R. Jensen, Jr., and ROKK
    Associates on May 20, 1996, IS GRANTED.

14. IT IS FURTHER ORDERED that pursuant to our authority under sections
    4(i) and 405 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 154(i) and 405, and section 1.115 of the Commission\'s
    rules, 47 C.F.R. § 1.115, the Application for Review filed by Gerald
    Crozier on May 20, 1996, IS DISMISSED.

15. IT IS FURTHER ORDERED that pursuant to our authority under sections
    4(i) and 405 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 154(i) and 405, and section 1.925 of the Commission\'s
    rules, 47 C.F.R. § 1.925, the requests by Arundel Trunked
    Partnership, James W. Byrnes III, Judith K. Warden, Robert J.
    Zamito, Norma Beckett, PCK Systems, Paul W. Rutter, Bruce L. Jones,
    Michael J. Sample, James R. Jensen, Jr., and ROKK Associates for a
    waiver of section 90.753(c) of the Commission\'s rules, 47 C.F.R. §
    90.753(c), submitted on March 4, 1996, ARE GRANTED, and that the
    modification applications filed by Arundel Trunked Partnership,
    James W. Byrnes III, Judith K. Warden, Robert J. Zamito, Norma
    Beckett, PCK Systems, Paul W. Rutter, Bruce L. Jones, Michael J.
    Sample, James R. Jensen, Jr., and ROKK Associates BE PROCESSED.

16. IT IS FURTHER ORDERED that pursuant to our authority under sections
    4(i) and 405 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 154(i) and 405, and section 1.106 of the Commission\'s
    rules, 47 C.F.R. § 1.106, the Petition for Reconsideration filed by
    Arundel Trunked Partnership, James W. Byrnes III, Judith K. Warden,
    Robert J. Zamito, Norma Beckett, PCK Systems, Paul W. Rutter,
    Bruce L. Jones, Michael J. Sample, James R. Jensen, Jr., and ROKK
    Associates on June 22, 1998, IS DISMISSED as moot.

17. IT IS FURTHER ORDERED that pursuant to our authority under sections
    4(i) and 405 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 154(i) and 405, and section 1.106 of the Commission\'s
    rules, 47 C.F.R. § 1.106, the Petition for Reconsideration filed by
    Gerald Crozier on June 22, 1998, IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: *See* Amendment of Part 90 of the Commission\'s Rules to Provide
    for the Use of the 220‑222 MHz Band by the Private Land Mobile Radio
    Service, PR Docket No. 89-552, Implementation of Sections 3(n) and
    332 of the Communications Act, Regulatory Treatment of Mobile
    Services, GN Docket No. 93-252, Implementation of Section 309(j) of
    the Communications Act - Competitive Bidding, PP Docket No. 93-253,
    *Memorandum Opinion and Order on Reconsideration*, 13 FCC Rcd. 14569
    (*220 MHz Memorandum Opinion and Order*) (1998).

[^2]: *See* Amendment of Part 90 of the Commission\'s Rules to Provide
    for the Use of the 220‑222 MHz Band by the Private Land Mobile Radio
    Services, PR Docket No. 89‑552, Implementation of Sections 3(n) and
    332 of the Communications Act, Regulatory Treatment of Mobile
    Services, GN Docket No. 93-252, *Second Report and Order*, 11 FCC
    Rcd. 3668 (*220 MHz Second Report and Order*) (1996).

[^3]: *Id*. at 3673, ¶¶ 15-16. *See also* 47 C.F.R. § 90.753(c).

[^4]: *Id*.

[^5]: *See* Petition for Clarification or Reconsideration filed by
    Police Emergency Radio Services, Inc., and Bostom and Associates
    Company, Inc., on behalf of Petitioners, on March 4, 1996 (Petition
    for Clarification). The Petition for Clarification characterizes the
    Petitioners, with the exception of Gerald Crozier, as the licensees
    managed by PERS and Bostom that requested STAs prior to January 26,
    1996, but that were granted STAs after that date. *Id*. at n.2.
    Licensee Gerald Crozier (WPCW503) was not included in the Petition
    for Clarification. *Id*. at Attachment.

[^6]: *Id*. at 1.

[^7]: *See* Requests for Waiver, filed separately on March 4, 1996, by
    Arundel Trunked Partnership, James W. Byrnes III, Judith K. Warden,
    Robert J. Zamito, Norma Beckett, PCK Systems, Paul W. Rutter, Bruce
    L. Jones, Michael J. Sample, James R. Jensen, Jr., and ROKK
    Associates. There is no evidence in the record that Gerald Crozier
    (WPCW503) filed a Request for Waiver.

[^8]: Phase I 220 MHz licensees seeking to relocate their base stations
    under the *220 MHz Second Report and Order* were required to file
    either the modification application or a letter of intent to file a
    modification application by March 11, 1996. *See* 47 C.F.R. §
    90.755(b).

[^9]: Since Petitioners' modification applications were filed, the Land
    Mobile Branch became the Licensing and Technical Analysis Branch of
    the Commercial Wireless Division of the Wireless Telecommunications
    Bureau.

[^10]: *See* Letter of Terry L. Fishel, Chief, Land Mobile Branch, to
    Russell Fox, Esq., dated April 19, 1996 (*Waiver Denial Letter*).
    The *Waiver Denial Letter* lists all of the Petitioners with the
    exception of Gerald Crozier (WPCW503).

[^11]: Application for Review filed by Arundel Trunked Partnership,
    James W. Byrnes III, Judith K. Warden, Robert J. Zamito, Norma
    Beckett, PCK Systems, Paul W. Rutter, Bruce L. Jones, Michael J.
    Sample, James R. Jensen, Jr., ROKK Associates, and Gerald Crozier,
    on May 20, 1996 (*Application for Review*).

[^12]: Amendment of Part 90 of the Commission\'s Rules to Provide for
    the Use of the 220‑222 MHz Band by the Private Land Mobile Radio
    Service, PR Docket No. 89-552, Implementation of Sections 3(n) and
    332 of the Communications Act, Regulatory Treatment of Mobile
    Services, GN Docket No. 93-252, Implementation of Section 309(j) of
    the Communications Act - Competitive Bidding, PP Docket No. 93-253,
    *Third Report and Order; Fifth Notice of Proposed Rulemaking*, 12
    FCC Rcd. 10,943 (1997).

[^13]: *220 MHz Reconsideration Order* at 14645, ¶ 174.

[^14]: *Id*. at 14645-46, ¶ 175. Specifically, the *220 MHz MO&O*
    referred to the *220 MHz Second Report and Order* limiting
    relocation to STA sites to licensees who \"have obtained\" STAs and
    \"any licensee that has been granted an STA.\" *Id*. Moreover, we
    stated that once we released the modification procedures, STAs were
    only to be issued in emergency situations. *Id*.

[^15]: *Id*. at 14654, ¶ 194.

[^16]: Petition for Reconsideration filed by Arundel Trunked
    Partnership, James W. Byrnes III, Judith K. Warden, Robert J.
    Zamito, Norma Beckett, PCK Systems, Paul W. Rutter, Bruce L. Jones,
    Michael J. Sample, James R. Jensen, Jr., ROKK Associates, and Gerald
    Crozier, on June 22, 1998 (*Petition for Reconsideration*).

[^17]: 47 C.F.R. § 1.115(a).

[^18]: *Application for Review* at 5.

[^19]: 47 C.F.R. § 0.331(a)(2).

[^20]: *Application for Review* at 5.

[^21]: *Id.* at 5-6.

[^22]: *See Waiver Denial Letter*.

[^23]: *Id*.

[^24]: See 47 C.F.R. § 1.925(b)(3). *See also Northeast Cellular
    Telephone Co. v. FCC*, 897 F.2d 1164, 1166 (D.C. Cir. 1990) and
    *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969).

[^25]: *Application for Review* at 6.

[^26]: *Id.*

[^27]: *Id*. Petitioners claim to provide service to approximately 2,200
    subscriber mobile units, including "essential communications
    services to emergency medical services providers, a utility company,
    a State Department of Corrections, municipal and private refuse
    services, couriers in the health care field, a private car service,
    elderly services, roadside auto repair services, and numerous
    persons in the trades and professions." *Petition for
    Reconsideration* at 2. Petitioners further claim that if they are
    not allowed to relocate permanently to the STA sites, the "2,200
    subscribers would have no reasonable alternative to meeting their
    communications needs, because no other 220 MHz band system is
    available which provides comparable service." *Id*.