**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of:

Always Answering Service, Inc. )

Petition to Reinstate *Nunc Pro Tunc* Dismissed ) File No. DO21001

PCP Application For Local Exclusivity on )

Frequency Channel 929.7875 MHz or, in the )

Alternative, for Waiver of the Paging Application )

Freeze )

**MEMORANDUM OPINION AND ORDER**

**Adopted: February 4, 2000 Released: February 14, 2000**

By the Commission:

1\. The Commission has before it an Application for Review, filed on
June 13, 1997 by Always Answering Service, Inc. (\"Always\"). Always
seeks review of the decision by the Licensing and Technical Analysis
Branch (\"Branch\") of the Wireless Telecommunications Bureau\'s
Commercial Wireless Division, denying Always\' Petition for
Reinstatement of its Private Carrier Paging application for local
exclusivity on channel 929.7875 MHz in the Washington, D.C./Baltimore,
MD region or, in the alternative, for waiver of the paging application
freeze (\"Petition for Reinstatement\").

2\. Always states that prior to February 7, 1996, its exclusivity
application was submitted to the frequency coordinator, the Personal
Communications Industry Association (PCIA), for frequency coordination
pursuant to Section 90.175 of the Commission\'s Rules.[^1] Always argues
that PCIA\'s records incorrectly indicated that its requested frequency
was assigned to Wireless Data Systems (WDS), when in fact WDS\'s license
had been cancelled.[^2] Always further argues that it instructed PCIA to
forward the application directly to the Commission for filing with
\"conditional authority\" in the event that PCIA would not grant Always
\"unconditional\" coordination pursuant to Sections 90.175(c) and then
existing 90.495 of the Commission\'s Rules.[^3] PCIA ultimately did not
grant unconditional frequency coordination because its database
reflected that WDS was the licensee on the frequency requested by
Always. On February 7, 1996, PCIA instead granted conditional
coordination and forwarded the application to the Commission for filing.
On July 9, 1996, the Licensing Division\'s Land Mobile Branch dismissed
Always\' application as defective for failure to obtain frequency
coordination. On July 30, 1996, Always submitted its Petition for
Reinstatement. On May 14, 1997, the Branch denied Always\' Petition for
Reinstatement. The Branch determined that PCIA\'s refusal to coordinate
Always\' application was appropriate because although the WDS license
was cancelled on December 5, 1995, it was not removed from the
Commission\'s database until February 8, 1996, and an applicant may not
file for a frequency until the license for that frequency is deleted
from the Commission\'s database.[^4] The Branch further determined that
Always did not provide sufficient justification to warrant processing
its application prior to the removal of the WDS license from the
database.[^5]

3\. On February 8, 1996, the Commission released a *Notice of Proposed
Rule Making,* which imposed a freeze on most new applications for paging
facilities.[^6] The freeze was imposed in conjunction with the
Commission\'s proposal to convert from site-by-site licensing of paging
channels to licensing on a geographic area basis.[^7] In the absence of
a waiver, the freeze thus prevents Always from refiling its dismissed
application for exclusivity.

4\. In its Application for Review, Always argues that its application
should not have been dismissed and should be reinstated *nunc pro tunc*
since: (a) WDS\'s license had been cancelled two months prior to the
filing of Always\' application; (b) WDS\'s license should not have been
granted due to WDS\'s violation of FCC rules;[^8] (c) the decision to
dismiss Always\' application was based on erroneous analysis of the
facts and Commission precedents; and (d) the Branch violated Commission
policy by failing to provide PCIA with a timely report of cancelled
licenses. In the alternative, Always argues that even if its application
was filed prematurely, the Commission should waive the paging
application freeze to permit Always to refile its application.[^9]

5\. We hold, first, that the Branch correctly denied Always\'
application for reinstatement *nunc pro tunc*. The Branch dismissed
Always\' application because it was defective on its face. Nothing has
occurred since the dismissal that changes the defect in Always\'
application. Always was seeking local exclusivity for the 929.7875 MHz
frequency in the Washington/Baltimore area but failed to obtain
unconditional coordination as then required by Sections 90.175 and
90.495 of the Commission\'s Rules.[^10] Furthermore, unconditional
coordination was correctly denied because the WDS license had not been
deleted from the Commission\'s database. The Commission has had a
consistent policy against accepting applications before the previous
license is deleted.[^11] This policy is based on sound policy
considerations: if applications were accepted before a cancelled license
was deleted from the database, a party with information regarding a
Commission licensing decision would have an opportunity to file an
application before others relying on the database learned that the
spectrum was available. Another likely result would be that applicants
would file numerous applications speculating on the possibility of
spectrum becoming available, resulting in an administrative burden on
Commission staff. Thus, the Branch properly dismissed the application
based on the facts before it. We further note that Always has not shown
that the lapse in this case between cancellation of WDS\'s license and
its deletion from the database was inconsistent with the Branch\'s
customary practice.

6\. With respect to Always\' alternative request for waiver, the
Commission imposes a strict burden on parties seeking waiver of the
Commission\'s rules. Always must demonstrate either: (1) that the
underlying purpose of the rule would not be served or would be
frustrated by application to its particular case, and that grant of a
waiver is otherwise in the public interest, or (2) that the unique facts
and circumstances of its case render application of the rule
inequitable, unduly burdensome or otherwise contrary to the public
interest, or that it has no reasonable alternative.[^12] We find that
Always has not made the requisite showing here.

7\. First, as discussed above, we have not treated Always differently
than we have treated similarly situated applicants. Although Always\'
application was filed prior to the freeze, the application was properly
returned as defective. Always has been afforded the same treatment as
any other non-incumbent applicant who was unable to file a valid paging
application prior to February 8, 1996. Second, application of the freeze
to Always and similarly situated parties promotes the purpose of
preserving the existing licensing landscape during the transition to
geographic area licensing.[^13] Thus, Always has failed to show that
applying the application freeze to Always is inequitable, inconsistent
with the purpose of the freeze, or contrary to the public interest. We
further note that Always had the opportunity to participate in the
auction of geographic area paging licenses for the frequency that it
seeks that is scheduled to begin on February 24, 2000.[^14]

8\. Always presents no arguments in its Application for Review that
would lead us to change the Branch\'s decision. We therefore affirm the
Branch\'s decision for the reasons stated therein.

9\. ACCORDINGLY, IT IS ORDERED that the Application for Review filed by
Always Answering Service, Inc., on June 13, 1997, in the above-captioned
matter IS DENIED.

10\. IT IS FURTHER ORDERED that the Motion for Stay Pending Review filed
by Always on June 19, 1997, in the above-captioned proceeding IS
DISMISSED AS MOOT.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: ^?^ Application for Review at 2.

[^2]: ^?^ *Id.*

[^3]: ^?^ *Id.*

[^4]: ^?^ Letter from Terry L. Fishel, Deputy Chief, Licensing and
    Technical Analysis Branch, Commercial Wireless Division, Wireless
    Telecommunications Bureau, to Fredrick M. Joyce, Esq., dated May 14,
    1997, *citing* Amendment of Parts 1 and 90 of the Commission\'s
    Rules concerning the Construction, Licensing, and Operation of
    Private Land Mobile Radio Stations, *Report and Order*, 6 FCC Rcd.
    7297 (*PLMRS Report and Order*).

[^5]: ^?^ *Id.*

[^6]: ^?^ Revision of Part 22 and Part 90 of the Commission\'s Rules to
    Facilitate Future Development of Paging Systems, *Notice of Proposed
    Rule Making,* 11 FCC Rcd. 3108 (1996). The freeze is subject to
    limited exceptions, none of which is relevant here.

[^7]: ^?^ *Id.* The Commission subsequently adopted paging rules for
    geographic area licensing. *See* Revision of Part 22 and Part 90 of
    the Commission\'s Rules to Facilitate Future Development of Paging
    Systems, *Second Report and Order and Further Notice of Proposed
    Rule Making*, 12 FCC Rcd. 2732 (1997), *Memorandum Opinion and Order
    on Reconsideration and Third Report and Order*, 14 FCC Rcd. 10030
    (1999).

[^8]: ^?^ In particular, Always notes that in an Informal Complaint
    filed on February 16, 1996, it requested that the WDS license be set
    aside due to the substitution of WDS for the original applicants. We
    need not consider the merits of Always\' Informal Complaint since
    the WDS license had previously been cancelled on December 5, 1995.

[^9]: ^?^ Application for Review at 2-8.

[^10]: ^?^ 47 C.F.R. § 90.175; 47 C.F.R. § 90.495 (1996).

[^11]: ^?^ *See PLMRS Report and Order*, 6 FCC Rcd. at 7301-7302, ¶ 25
    (\"Under no circumstances will we accept an application for a
    particular frequency until that frequency has actually been deleted
    from our database . . . .\").

[^12]: ^?^ 47 C.F.R. § 1.925(b)(3); *see also WAIT Radio v. FCC*, 418
    F.2d 1153 (D.C. Cir. 1969), *cert. denied*, 409 U.S. 1027 (1972).
    The waiver standard for Private Land Mobile Services was formerly
    codified at Section 90.151(a) of the rules, 47 C.F.R. § 90.151(a)
    (1995). *See* Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 90,
    95, 97, and 101 of the Commission\'s Rules to Facilitate the
    Development and Use of the Universal Licensing System in the
    Wireless Telecommunications Service, WT Docket No. 98-20, *Report
    and Order*, 13 FCC Rcd. 21027 (1998) (streamlining and recodifying
    rules governing license application procedures). We find that it is
    immaterial to the result in this case which formulation of the
    waiver standard we apply.

[^13]: ^?^ *See Notice of Proposed Rule Making,* 11 FCC Rcd. at 3136, ¶
    139.

[^14]: ^?^ *See* Auction of 929 and 931 MHz Paging Service Spectrum,
    *Public Notice*, DA 99-1591 (rel. Aug. 12, 1999).