**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

INTERSTATE CONSOLIDATION, INC. )

)

Application for Authorization to Operate ) File Nos. 294011 & 293756

on Frequency Pairs 452.850/457.850 MHz )

and 452.825/457.825 MHz in the Former )

Motor Carrier Radio Service, Stations KNIC418 )

and WNZR986, Los Angeles, California )

**MEMORANDUM OPINION AND ORDER**

**Adopted: February 10, 2000 Released: February 17, 2000**

By the Commission:

# INTRODUCTION

1.  We have before us an Application for Review filed by the Los Angeles
    County Transportation Cooperative (Coop), seeking review of a
    licensing action by the Licensing Division of the former Private
    Radio Bureau (Bureau).[^1] Specifically, the Coop seeks reversal of
    the Division\'s grant of licenses to Interstate Consolidation, Inc.
    (Interstate) to operate on frequencies 452.850/457.850 and 452.825
    and 457.825 MHz. For the reasons set forth herein, we find that the
    Coop has not established grounds for denying Interstate\'s licenses
    and the Coop\'s Application for Review is therefore denied.

# BACKGROUND

2.  On January 15, 1992, and February 18, 1992, the Commission received
    completed applications from Interstate, owner of a large fleet of
    trucks, for licenses to operate stations in the former Motor Carrier
    Radio Service[^2] on frequency pairs 452.825/457.825 MHz and
    452.850/457.850 MHz, respectively.[^3] The application for frequency
    pair 452.825/457.825 MHz, was in the form of an application for a
    modification of Station KNIC418, a call sign covered by a former
    Motor Carrier Radio Service license held by Interstate.[^4] Prior to
    filing its application, Interstate leased access to private land
    mobile radio (PLMR) facilities from the Coop. However, Interstate
    subsequently determined that its communications requirements would
    be best met by owning and operating its own facilities.[^5]

3.  On February 13, 1992, the Coop filed a pleading seeking denial of
    Interstate\'s January 15, 1992, application seeking authority to
    operate on frequency pair 452.825/457.825 MHz.[^6] The Coop argued
    that the proposed system would cause harmful interference to the
    Coop\'s shared systems[^7] and that the American Trucking
    Association Inc. (ATA) abused its discretion as frequency
    coordinator when it recommended assigning the subject frequency
    pairs to Interstate.[^8] On March 20, 1992, the Coop filed an
    additional request to deny Interstate\'s February 18, 1992,
    application to operate on frequency pair 452.850/457.850 MHz citing
    similar grounds for denial.[^9]

4.  On June 18, 1992, the Licensing Division granted Interstate\'s
    applications for the 452.825/457.825 MHz and 452.850/457.850 MHz
    licenses.[^10] On June 29, 1992, the Licensing Division denied the
    Coop\'s two requests.[^11] On July 2, 1992, the Coop filed a
    petition for reconsideration of grant of the subject Interstate
    applications, again arguing that Interstate\'s stations were causing
    harmful interference to the Coop\'s co-channel operation, that the
    Commission abused its discretion during its review of the frequency
    coordinator\'s decisions, and that the bias of the frequency
    coordinator created an unconstitutional delegation of Commission
    authority to a private organization.[^12]

5.  On December 4, 1992, the Licensing Division denied the petition for
    reconsideration pointing out that the Coop had not supported its
    claims of harmful interference with an affidavit from a qualified
    radio engineer as required by Section 1.106(e) of the Commission\'s
    Rules.[^13] In its denial letter, the Licensing Division required
    the parties to meet, pursuant to Section 90.173(b) of the
    Commission\'s Rules,[^14] so that the parties could make mutually
    satisfactory arrangements to mitigate congestion resulting from
    their use of the shared channels.[^15]

6.  On January 4, 1993, the Coop filed the subject Application for
    Review of the Licensing Division\'s denial of its petition for
    reconsideration.[^16] Specifically, the Coop requests that we either
    dismiss Interstate\'s licenses on frequency pairs 452.850/457.850
    MHz and 452.825/457.825 MHz, or conduct a hearing to determine
    whether Interstate\'s licenses should be set aside.[^17] In its
    Application for Review, the Coop argues that grant of these licenses
    was improper for the following reasons: 1) Interstate\'s
    applications were defective, 2) Interstate\'s operation on the
    shared channels harmfully interferes with the Coop\'s operations,
    and 3) the frequency coordinator did not choose the most appropriate
    channels for Interstate.

# DISCUSSION

7.  When the Coop\'s Application for Review was filed the channels at
    issue in this matter were shared Motor Carrier Radio Service
    channels available in the Los Angeles metropolitan area.[^18] Both
    Interstate and the Coop were eligible to be licensed on the channels
    under the Commission\'s Rules.[^19] The current dispute arose when
    Interstate applied for licenses to operate on frequency pairs
    452/457.825 MHz and 452/457.850 MHz, which already were being used
    by the Coop.[^20] Pursuant to Section 90.175 of the Commission\'s
    Rules, the ATA, the FCC-designated frequency coordinating entity for
    the former Motor Carrier Service, coordinated Interstate onto these
    frequencies and then forwarded their recommendation to the
    Commission for final approval.[^21]

8.  As an initial matter, neither the Communications Act of 1934, as
    amended, (Act) nor the Commission\'s rules provide for the filing of
    petitions to deny against PLMR applications.[^22] We therefore find
    that the Division was not required to consider the Coop\'s request
    in the same fashion as it addressed petitions to deny. Nevertheless,
    we will consider the arguments presented in the Coop\'s Application
    for Review as part of our own public interest inquiry, treating the
    Coop\'s request as an informal objection.[^23] Further, because
    petitions to deny do not lie against PLMR applications, most of the
    provisions of Section 309 of the Communications Act[^24] and the
    associated case law do not control in this case.[^25] Even assuming,
    *arguendo*, that these standards did apply, as discussed herein we
    find that the Coop did not establish sufficient grounds to warrant
    setting aside Interstate\'s licenses or designating the applications
    for hearing.[^26] The Coop challenges the grant of Interstate\'s
    applications on three general grounds: 1) that there are procedural
    defects in Interstate\'s applications, 2) that Interstate is
    interfering with the Coop\'s use of the shared channels, and 3) that
    the frequency assignment was improper and the coordination process
    was unconstitutionally tainted by bias.

9.  *The Coop\'s Claims of Defects in Interstate\'s Applications*. The
    first category of objections made by the Coop involve alleged
    defects in Interstate\'s modification application based on Section
    90.157 of the Commission\'s Rules.[^27] Specifically, the Coop
    alleges that Interstate\'s license for Station KNIC418 (frequency
    pair 452.825/457.825 MHz) cancelled automatically within the meaning
    of Section 90.157. Interstate was first licensed for Station KNIC418
    in the 1980s and it operated this station for several years before
    it joined the Coop in 1990. The Coop, which is also licensed for
    452.825/457.825 MHz contends that Interstate permanently
    discontinued operating Station KNIC418[^28] when it joined the Coop.
    As such, according to the Coop, Interstate\'s application to modify
    Station KNIC418 was fatally defective because it sought to modify a
    nonexistent license. In its Application for Review, the Coop assigns
    error to the Licensing Division\'s conclusion that the record did
    not persuade it that Station KNIC418 cancelled automatically.[^29]
    Moreover, because it contends that Station KNIC418 cancelled
    automatically, the Coop also avers that the Licensing Division\'s
    granting of the modification application was *prima facie*
    inconsistent with the public interest.[^30] Interstate counters that
    the Licensing Division correctly found that the record did not
    establish the Coop\'s allegation that Station KNIC418 cancelled
    automatically.[^31] Additionally, Interstate avers that the Coop\'s
    Application for Review raises no new issues and presents no new
    facts which were not addressed at earlier stages of this
    proceeding.[^32]

10. We agree with Interstate that the instant Application for Review
    offers no evidence or arguments that would support a finding of
    error below. Specifically, we find no error in connection with the
    former Licensing Division\'s determination that \"the evidence
    provided does not demonstrate that all facilities \[authorized under
    Station KNIC418\] have failed to meet the construction/operational
    requirements or have discontinued operation pursuant to Rule
    90.157.\"[^33] Nor does the Application for Review support a finding
    that the Licensing Division erred by concluding that the Coop failed
    to establish specific allegations of fact sufficient to show that
    granting the modification application was *prima facie* inconsistent
    with the public interest.[^34] Accordingly, we affirm the Licensing
    Division\'s grant of Interstate\'s captioned application to modify
    Station KNIC418.

11. Assuming *arguendo* that Station KNIC418 cancelled automatically, we
    disagree with the Coop\'s claim that the decision below granting
    Interstate authority to operate on 452/457.825 MHz, as requested in
    the modification application, was inimical to the public interest.
    We have no quarrel with the logic that a nonexisting license cannot
    be modified, but the Coop does not consider that the Licensing
    Division was not required to dismiss all defective applications[^35]
    or that the Commission\'s Rules can be waived *sua sponte* for good
    cause shown.[^36] In this connection, whether Interstate checked
    \"new\" or \"modification\" on the application form, the request for
    authority to use 452/457.825 MHz would have been reviewed under the
    same substantive rules. Specifically, although styled as a
    modification application, Interstate completed the same frequency
    coordination process,[^37] filed the same application form,[^38] and
    paid the same filing fee[^39] applicable to a new application for
    the same frequencies. Moreover, the Coop\'s rights as a licensee and
    Interstate\'s rights as an applicant were not effected by whether
    Interstate was an applicant for a new license[^40] or an incumbent
    modifying an existing license. In this connection, we further note
    that even if the Licensing Division had dismissed the modification
    application, instead of processing it[^41] and thereby requiring
    Interstate to refile an essentially identical application, under the
    circumstances such an approach would have been proper as a matter of
    administrative efficiency and convenience.[^42]

12. Next, we find that the Coop has not presented sufficient, specific
    allegations of fact supporting its claims of fraud and
    anticompetitive, conspiratorial behavior to establish that a grant
    of the application would be *prima facie* inconsistent with the
    public interest.[^43] In its pleadings the Coop makes several claims
    that Interstate inflated the number of mobiles it had available to
    operate on the channels assigned to it.[^44] Interstate denies these
    charges.[^45] The Coop\'s bald accusations and conclusory statements
    do not establish a *prima facie* case or provide a basis for the
    denial of an application for a shared use license.[^46] If the Coop
    contends that Interstate is not sharing the channels in accordance
    with the rules, its avenue of recourse is to bring a complaint to
    the Commission pursuant to Section 90.173(b) of the Commission\'s
    Rules.[^47] However, based on the record of this proceeding, we do
    not believe that the Coop has provided sufficient evidence to
    support its claims of fraudulent behavior on the part of Interstate
    to warrant designation of these applications for hearing on whether
    Interstate has the requisite character qualifications to be a
    Commission licensee.

13. *\"Interference\" Complaints*. The Coop\'s second contention is that
    Interstate is interfering with its operations on the shared channel.
    We believe that the Licensing Division properly dismissed the
    Coop\'s harmful interference claim based on the Coop\'s failure to
    provide an engineering report as required by Section 1.106(e) of the
    Commission\'s Rules.[^48] Failure to support a claim of harmful
    interference with an affidavit of a qualified radio engineer, under
    prescribed procedures, is grounds for dismissal of a complaint of
    harmful interference.[^49] In its Petition for Reconsideration, the
    Coop argues that Interstate\'s assignment to channels on which the
    Coop is licensed to operate amounts to harmful interference as
    defined under the Rules.[^50] We believe that the mere addition of a
    user to a congested, shared channel does not, in and of itself,
    present grounds for denying an application. Moreover, frequency
    coordinators are authorized and expected to recommend to the
    Commission the assignment of particular frequencies to qualified
    applicants.[^51] The Commission\'s Rules generally do not make
    provisions for denying eligible applicants a shared private land
    mobile frequency simply because the available channels are
    congested.[^52] Instead, the coordinators must recommend assignment
    of a shared frequency to every qualified applicant.[^53]

14. Furthermore, the Rules do not provide that a first-in-time
    preference would be given to current users of shared channels as the
    Coop suggests, and we will not create one here.[^54] We believe that
    recognizing standing to challenge a frequency coordinator\'s
    allocation recommendations based on frequency congestion will
    diminish the efficiency of the coordination system, contrary to the
    public interest. We are also concerned that the delays and
    uncertainty that would result from allowing such wholesale
    challenges would lead to the creation of a *de facto*, first-in-time
    preferential right to the use the shared frequencies. Further, we
    believe that such an approach would consume substantial scarce
    Commission resources without significant concomitant public interest
    benefits.

15. The Coop\'s Petition for Reconsideration did not contain an
    engineering report verifying its claim of harmful interference and
    as such did not establish facts sufficient to show that the grant of
    Interstate\'s applications was, *prima facie,* inconsistent with the
    public interest. Nor did the Coop in its Application for Review
    offer any additional evidence of interference. Instead, the Coop
    stated that it is actually arguing that the increased traffic it is
    experiencing on its shared channels is tantamount to the \"harmful
    interference\" encompassed within Section 90.403(e) of the
    Commission\'s Rules.[^55] Intensive use of a shared channel is not
    \"harmful interference\" within the meaning of Section 90.403(e) of
    the Commission\'s Rules.[^56] As discussed above, claims of
    interference, even those made pursuant to Section 90.403(e) of the
    Commission\'s Rules, require some manner of tangible evidence to
    support them. If the Coop believes that Interstate has failed to
    cooperate in its use of the shared frequency, intentionally or
    otherwise, it should have sought the remedies set forth in Section
    90.173(b) of the Commission\'s Rules, to resolve any difficulties
    they experienced.[^57] Despite the guidance of the former Licensing
    Division, to date, the Coop has chosen not to pursue these
    remedies.[^58] Thus, for these reasons, we believe that the former
    Licensing Division\'s dismissal of the claim of harmful interference
    made in the Coop\'s Petition for Reconsideration was warranted.

16. *Challenge to the Frequency Assignment and Coordination Process.*
    The Coop also claims that the ATA did not recommend the most
    appropriate channel for Interstate.[^59] In support of this claim,
    it presents an affidavit from M. A. Hoffman in which Mr. Hoffman
    states that the channels assigned are not the most appropriate ones
    for Interstate.[^60] We find the Coop's claim unpersuasive because
    it rests on the bare statement of an employee of the Coop --
    unsupported by any independent engineering data. We also note that
    the Coop's claim that ATA did not recommend the most appropriate
    channel for Interstate fails to overcome *Interstate's* acceptance
    of ATA's recommendation. Moreover, considered along with the balance
    of the record of this proceeding, we conclude that the Coop's claim
    lacks sufficient credibility and weight to warrant further inquiry
    by the Commission.[^61] Absent tangible evidence of erroneous
    coordination, we are predisposed to support the recommendation of a
    duly authorized frequency coordinator.[^62] Moreover, in this
    instance the Coop argues that it should be allowed to add loading to
    the very channels which it claims are too congested to accommodate
    Interstate.[^63] Such a request by the Coop is inconsistent with its
    contentions that the subject channels should not be made available
    to additional PLMR traffic. Based on the record in this proceeding,
    we conclude that the Coop has failed to substantiate its claim that
    ATA did not recommend the most appropriate channels for Interstate.
    In this connection, we note that the Coop\'s assertion that
    \"cooperatives should be given special consideration by
    coordinators, because cooperatives are spectrally efficient\"[^64]
    is beyond the scope of the instant application proceeding.

17. Finally, the Coop challenges the frequency coordination process
    involved in Interstate\'s ultimate assignment to frequency pairs at
    452.850/457.850 MHz and 452.825/457.825 MHz.[^65] As a preliminary
    matter, we note that a \"petition to deny\" a PLMR license is not
    the proper vehicle for raising these claims. First, as stated above,
    the channels at issue are shared channels without loading
    standards.[^66] There is no first-in-time preference given to
    current users of shared channels.[^67] Second, the denial of an
    application will not remedy alleged defects in the assignment and
    coordination process. If the Coop believed that the frequency
    coordinator was biased then it should have filed a petition to
    institute an inquiry into the coordinator\'s performance.[^68]
    Furthermore, if the Coop believed that there were strong policy
    reasons why it, a first in-time- user, should be given preferential
    rights to the shared frequencies, it should file a petition for a
    rulemaking to obtain those rights, rather than challenge other
    applicants seeking coordination onto those channels.[^69]

18. The Coop alleges bias on the part of the ATA but has not presented
    any evidence to support this claim.[^70] The Coop further alleges
    that this same bias has resulted in an unconstitutional delegation
    of authority from the Commission to the ATA in this instance.[^71]
    In support of this argument the Coop cites \"*Schecter vs.
    Nira.\"*[^72] While we believe that the Coop\'s intended reference
    was to *Schecter Poultry Corp. v. United States*,[^73] we do not
    believe that this case is on point with the circumstances presented
    here. *Schecter* and its progeny support the \"non‑delegation
    doctrine\" which applies to statutory delegations of legislative
    power to the Executive Branch.[^74] The Coop argues that the alleged
    bias on the part of the frequency coordinator regarding
    Interstate\'s request for frequency assignment resulted in an
    unconstitutional delegation of Commission authority to a private
    organization, namely ATA, not from the U.S. Congress to the
    Executive Branch as in *Schecter*.[^75] With regard to the
    delegation of authority from the Congress to the Commission, the
    Communications Act of 1934 specifically grants the Commission the
    authority to \"utilize assistance furnished by advisory coordinating
    committees consisting of individuals who are not officers or
    employees of the Federal Government.\" 47 U.S.C. § 332(b)(1) (1997)
    (as amended). Furthermore, it is not clear from the pleadings how
    any bias on the part of the frequency coordinator, even if it were
    substantiated, would result in a constitutional harm to the Coop.
    Nor does it follow that the revocation of Interstate\'s license
    would remedy any such constitutional violation. In any event, the
    Coop has not supported it\'s claim of bias, let alone presented a
    cogent theory as to how that bias amounts to a violation of the
    constitution. We therefore find that this allegation does not merit
    the grant of the Coop\'s request.

# CONCLUSION AND ORDERING CLAUSE

19. Based on the foregoing, we affirm the former Licensing Division\'s
    finding that the grant of these licenses to Interstate was proper.
    In sum, we conclude that the Licensing Division\'s decision in this
    matter is consistent with our Part 90 rules, which provide that all
    PLMR frequencies in the 450-470 MHz band are licensed on a shared,
    nonexclusive basis, and without maximum loading levels.[^76]

20. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and
    309(d)(2) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 309(d)(2), and Section 1.115(g) of the Commission\'s
    Rules, 47 C.F.R. § 1.115(g), the Application for Review filed by Los
    Angeles County Transportation Communications Cooperative IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: Subsequent to the subject action the Private Radio Bureau was
    integrated into the Wireless Telecommunications Bureau. *See* News
    Release No. 50909 (Dec. 1, 1994); *see al*s*o* Changes in the
    Delegated Authority of Various Bureaus, 60 Fed. Reg. 35503 (1995)
    (\"the Wireless Telecommunications Bureau assumes the functions and
    delegated authority that had been granted to the Private Radio
    Bureau\"). Administration of the licensing of private radio services
    is now the responsibility of the Licensing and Technical Analysis
    Branch of the Public Safety and Private Wireless Division. Because
    the subject Division was known as the Licensing Division at the time
    relevant to this proceeding, we refer to the former Licensing
    Division throughout this Memorandum Opinion and Order.

[^2]: 47 C.F.R. § 90.89 (1993). In February 1997, the Commission adopted
    a Second Report and Order which consolidated the twenty private land
    mobile radio services into two pools: the Public Safety Pool and the
    Industrial/Business Pool. *See In re* Replacement of Part 90 by Part
    88 to Revise the Private Land Mobile Radio Services and Modify the
    Policies Governing Them and Examination of Exclusivity and Frequency
    Assignment Policies of the Private Land Mobile Radio Services, PR
    Docket No. 92‑235, *Second Report and Order*, 12 FCC Rcd. 14,307
    (1997) (*Refarming Second R&O*). The *Refarming Second R&O* merged
    the Motor Carrier Radio Service into the Industrial/Business Pool.
    *Id.* Under the rules prior to the *Refarming Second R&O*, motor
    carriers were defined as either carriers of property, such as moving
    vans, or common carriers of people, such as city buses. 47 C.F.R. §
    90.89(a) (1993).

[^3]: FCC File Nos. 294011, 293756. Interstate also filed an application
    for frequency pair 452/457.375 MHz (FCC File No. 293764); however,
    that application was later denied because Interstate had not shown
    loading to justify licensing on three channel pairs. Such denial is
    now a final action and thus not a subject of dispute in this
    proceeding. Letter from W. Riley Hollingsworth, Deputy Chief,
    Licensing Division, to Alan M. Lurya (June 29, 1992) (Hollingsworth
    Letter).

[^4]: FCC File No. 293756.

[^5]: Letter from Elizabeth R. Sachs and Bob J. Goldberg to Terry L.
    Fishel, Chief, Land Mobile Branch, Licensing Division, Requesting
    Reconsideration of Termination of Conditional Authorization at 1
    (June 4, 1992).

[^6]: Coop Request to Dismiss or Deny and/or Set Aside (filed February
    13, 1992) at 2 - 5 (February Request to Deny).

[^7]: The Coop shares its licensed facilities pursuant to 47 C.F.R. §
    90.179.

[^8]: *Id.*

[^9]: Coop Request to Dismiss or Deny and/or Set Aside (filed March 20,
    1992) (March Request to Deny).

[^10]: Hollingsworth Letter, *supra* note 3.

[^11]: *Id.*

[^12]: Coop Emergency Petition for Reconsideration of the Act of the
    Chief, Licensing Section, Land Mobile Branch, Private Radio Bureau,
    Granting a License to Interstate Consolidation and Denying the
    Petition of the Los Angeles County Transportation Communications
    Cooperative to Dismiss or Deny and/or Set Aside at 2-3 (dated July
    2, 1992) (Petition for Reconsideration).

[^13]: 47 C.F.R. § 1.106(e); Letter from W. Riley Hollingsworth, Deputy
    Chief, Licensing and Technical Analysis Division, to Alan M. Lurya,
    Esquire (dated December 4, 1992) (Notice of Denial).

[^14]: 47 C.F.R. § 90.173(b) (requires licensees to cooperate and
    resolve harmful interference problems by reaching mutually
    satisfactory arrangements, otherwise the Commission may impose
    restrictions).

[^15]: Notice of Denial.

[^16]: Los Angeles County Transportation Communications Cooperative
    Application for Review (filed January 4, 1993) (Application for
    Review).

[^17]: *Id.* at 1-2.

[^18]: *See* 47 C.F.R. § 90.89 (1993) (governing the former Motor
    Carrier Radio Services frequencies).

[^19]: 47 C.F.R. § 90.89(a) (1993).

[^20]: Hollingsworth Letter. The third channel pair, 452/457.375 MHz, is
    no longer a subject of this dispute. *See* note 3, *supra*.

[^21]: *See* In the Matter of Frequency Coordination in the Private Land
    Mobile Radio Services, *Report and Order*, PR Docket No. 83-737, 103
    FCC Rcd. 1093, 1126, Appendix B (1986) (outlining the frequency
    coordinator selection process and listing the selected coordinators)
    *(1986 Report and Orde*r); 47 C.F.R. § 90.175(a) (requires that the
    applicable frequency coordinator recommend the most appropriate
    frequency for requests between 25 and 470 MHz).

[^22]: *See generally* 47 U.S.C. §§ 309(b), 309(d)(1); 47 C.F.R. §§
    1.901-1.981; *see also* In the Matter of Michael McDermott, FCC
    96-16, *Memorandum Opinion and Order*, 11 FCC Rcd. 5750, ¶ 6 (1996)
    (*Michael McDermott*).

[^23]: 47 U.S.C. §§ 154(j), 309(a); 47 C.F.R. § 1.41.

[^24]: 47 U.S.C. § 309.

[^25]: *See Michael McDermott*, 11 FCC Rcd. at 5753 ¶ 9.

[^26]: Typically, in order for the Commission to deny an application for
    authorization, the petitioner must make allegations of fact
    sufficient to show that the grant of the application is, *prima
    facie*, inconsistent with the public interest. 47 U.S.C. §
    309(d)(1); In re Applications of Missouri RSA No. 7 Limited
    Partnership, File No. 02306-CL-MP-97, *Memorandum Opinion and
    Order,* 1998 WL 461471, ¶ 12 (1998) (*citing Astroline
    Communications v.* *FCC*, 857 F.2d 1556, 1561 (D.C.Cir. 1988))
    (*Missouri RSA No. 7*); In the Matter of B.F. Investments,
    *Memorandum Opinion and Order*, 7 FCC Rcd. 5311, ¶ 4 (1992); *see
    also* *Michael McDermott*, 11 FCC Rcd. 5750, ¶ 6; *In re*
    Application of North Idaho Broadcasting Company for Transfer of
    Control of KVNI (AM), *Memorandum Opinion and Order*, FCC Docket No.
    93-102, 8 FCC Rcd 1637, ¶ 8 (1993) (*North Idaho Broadcasting*). If
    a *prima facie* case is established, the Commission must then
    determine whether a material question of fact is presented, in which
    case a hearing is required. *North Idaho Broadcasting*, 8 FCC Rcd
    1637, ¶ 8 (citing 47 U.S.C. § 309(d)(2)). The allegations must be
    supported by an affidavit of a person or persons with personal
    knowledge of the facts alleged. 47 U.S.C. § 309(d)(1). Allegations
    consisting of conclusory facts, or general allegations on
    information and belief, are insufficient to establish a *prima
    facie* case. *Missouri RSA No. 7*, 1998 WL 461471, ¶ 12; *see also
    Gencom v. FCC*, 832 F.2d 171, n. 11 (1987). If the Commission finds
    that the petitioner has made a *prima facie* case, it then must
    determine whether the petitioner has presented a substantial and
    material question of fact as to issues upon which relief may be
    granted. 47 U.S.C. § 309(d)(1); *Missouri RSA No. 7*, 1998 WL
    461471, ¶ 12. If no material question is raised, the Commission
    denies the petition and grants the application if it otherwise
    serves the pubic interest. *Missouri RSA No. 7*, 1998 WL 461471, ¶
    12.

[^27]: 47 C.F.R. § 90.157. Section 90.157 provides that the license for
    a station shall cancel automatically upon permanent discontinuance
    of operations and that a station not operated for one year or more
    is considered to have been permanently discontinued.

[^28]: *See* February Request to Dismiss at 2; Coop Reply to Interstate
    Consolidation\'s Opposition to Request to Dismiss or Deny at 12-13
    (Coop Reply to Opposition to Request to Dismiss); Application for
    Review at 7. *See also* Application for Review, Exhibit F,
    Declaration of Charles R. Wells (dated June 5, 1992) (briefly states
    Mr. Wells\' knowledge as to two of three transmitter sites, Oil
    Derrick/BC 64 and Santiago Peak, but is silent as to Interstate\'s
    third site, Flint Peak); Coop Reply to Opposition to Request to
    Dismiss, Declaration of M. A. Hoffman (dated May 1, 1992) at 1-2
    (stating that Flint Peak site was shut down to two way traffic by
    the owner and that Interstate only operated at Coop\'s site at San
    Rafael Hills). *Compare* February Request to Dismiss, Declaration of
    M. A. Hoffman (dated March 19, 1992) (affiant states, *inter alia*,
    that Interstate\'s applications are \"fraudulent\" and that
    \"\[Interstate\] is a spectrally inefficient licensee\" but this
    affidavit is silent as to the Coop\'s \"Section 90.157 claim.\").

[^29]: Application for Review at 7.

[^30]: *See, e.g., id.* The Coop adds that Interstate\'s application to
    modify Station KNIC418 raises an obvious question: \"If Interstate
    has a license for 452/457.825 MHz, why did it apply for the
    frequency again? We suggest that it is because they know this
    license is void.\" Coop Reply to Interstate Consolidated\'s
    Opposition to Request to Dismiss or Deny at 13.

[^31]: *See* Opposition to Application for Review at 2-4; *see also*
    Opposition to Request to Dismiss or Deny and/or Set Aside, at 4 n.5;
    *see also* attached Declaration of Art L. Tol (dated April 20, 1992)
    (declaring under penalty of perjury that the foregoing Opposition to
    Request to Dismiss or Deny and/or Set Aside is true and correct).
    According to Interstate, \"If \[the Coop\'s\] Mr. Hoffman has
    terminated Interstate\'s use of \[its Flint Peak\] facility in favor
    of the Coop site identified as San Rafael Hills, some .7 of a mile
    from Flint Peak, that change was made without Interstate\'s
    knowledge or consent. Thus, Interstate\'s authorization remains in
    full force and effect.\" *Id.*

[^32]: *Id.* at 2.

[^33]: Hollingsworth Letter (denying both the February Request to Deny
    and the March Request to Deny).

[^34]: *See Missouri RSA No. 7,* 1998 WL 461471, ¶ 12; In the Matter of
    B.F. Investments Inc., File No. 1486-CM-P-83, *Memorandum Opinion
    and Order*, 7 FCC Rcd. 5311, ¶ 4 (1992) (*B.F. Investments*); *see
    also* *Michael McDermott*, 11 FCC Rcd. 5750, ¶ 6. The Coop makes a
    number of seemingly unrelated accusations and conclusory statements,
    the types of which have long been held insufficient to establish a
    *prima facie* case that an application is inconsistent with the
    public interest. *See generally* February Request to Deny; *see
    also* March Request to Deny; *see* *North Idaho Broadcasting*, 8 FCC
    Rcd 1637, ¶ 8 (stating that allegations within petitions and
    supporting affidavits which \"consist of ultimate, conclusory facts
    or more general allegations on information and belief, supported by
    general affidavits . . are not sufficient.\" (quoting *Gencom v.
    FCC*, 823 F.2d 171, n.11).

[^35]: *See* 47 C.F.R. § 90.139(c) (1992) (Commission processing of
    applications).

[^36]: *See* 47 C.F.R. § 1.3 (Suspension, amendment or waiver of rules).

[^37]: *See* 47 C.F.R. § 90.175 (1992) (Frequency coordination
    requirements).

[^38]: *See* 47 C.F.R. §§ 90.119(a)(1), 90.119(a)(3) (1992) (FCC Form
    574 shall be used to apply for new station authorizations and for
    modification of an existing authorization).

[^39]: *See* 47 C.F.R. § 1.1102(6) (Schedule of charges for private
    radio service, Land Mobile Stations: (a) New, Reinstatement,
    Modification and/or Renewal (per call sign).

[^40]: As noted above, Interstate\'s request also was in all events
    exempt from the public notice, waiting period, and petition to deny
    provisions of Section 309 of the Act.

[^41]: We note that any dismissal of the modification application, as
    defective, would have been without prejudice to Interstate\'s right
    to file a \"new\" application for the shared PLMR channel in
    question.

[^42]: ^?^ *See generally* 47 U.S.C. § 154(j) (Commission may conduct
    its proceedings in such manner as will best conduce to the proper
    dispatch of business and to the ends of justice).

[^43]: 47 U.S.C. § 309(d)(1), requires a two step analysis for judging
    the sufficiency of a petition to deny. *See North Idaho
    Broadcasting*, 8 FCC Rcd 1637, ¶ 8.

[^44]: Application for Review at 8; February Request to Deny at 2.

[^45]: Opposition at 10-11.

[^46]: *North Idaho Broadcasting*, 8 FCC Rcd 1637, ¶ 8.

[^47]: *See* Application for Review at 4; 47 C.F.R. § 90.173(b).

[^48]: According to the Coop, the Licensing Division misunderstood its
    interference complaint, which asserts only that Interstate\'s usage
    of air time is oppressive, not that Interstate\'s radios are
    functioning improperly. Application for Review at 4-5. Thus, it
    appears that the Coop has abandoned the claims of electrical
    interference made in their Request to Dismiss and in their Emergency
    Application for Reconsideration. *See* March Request to Deny at 2;
    Petition for Reconsideration at 2. As a result, the issue of whether
    an engineer\'s report is necessary for proving electrical
    interference has been rendered moot. Nevertheless, we believe that
    the staff properly dismissed the interference complaints made in the
    affidavits accompanying the Coop\'s Emergency Application for
    Reconsideration in accordance with 47 C.F.R. § 1.106(e).

[^49]: *In re* Application of C.L. Tadlock, D.B.A. Tadlock\'s Radio
    Dispatch, *Memorandum Opinion and Order*, FCC Docket No. 67-588, 8
    FCC Rcd 197 (1967) (Commission is not required to give consideration
    to a petition which does not comply with the requirements of Section
    § 1.106(e) of the Commission\'s Rules, 47 C.F.R. § 1.106(e)).

[^50]: Petition for Reconsideration at 1-2.

[^51]: *See* 47 C.F.R. § 90.175.

[^52]: The Commission is acutely aware of the increasing congestion
    faced by those operating on shared frequencies. The use of shared
    channels continues to grow faster than the increase in the
    efficiency of their use. We hope that the recent changes made to the
    frequency allocation system implemented in the \"refarming\"
    rulemaking will go some distance toward creating a more efficient
    spectrum allocation system. *See Refarming Second R&O*, 12 FCC Rcd
    14,307. *But see* 47 C.F.R. §§ 90.313, 90.621, 625, 90.631 (in the
    470-512 MHz band and above 800 MHz, PLMR channels are assigned on an
    exclusive basis, or no additional licenses are granted, if the
    channel in question is loaded to prescribed levels).

[^53]: *1986 Report and Orde*r, 103 FCC Rcd 1093, 1126, at ¶ 5(g).

[^54]: *See In re* Petition for Review and Supplement to the Petition
    for Review of Delegated Authority Which Denied Action on a Complaint
    Filed By Lee Richter, FCC 91-412, *Memorandum Opinion and Order*, 6
    FCC Rcd 7565, ¶ 7 (1991) (*Lee Richter*).

[^55]: 47 C.F.R. § 403(e). We will give the Coop the benefit of the
    doubt that this issue was the same one presented to the staff in
    it\'s Petition for Reconsideration, otherwise this claim would be
    dismissed under Rule Section 1.115(c).

[^56]: In the Matter of Imposition of a Forfeiture Against Capitol
    Radiotelephone, PR Docket No. 93-231, *Memorandum Opinion and
    Orde*r, 11 FCC Rcd 8232, ¶ 16 (1996).

[^57]: 47 C.F.R. § 90.173; *see Lee Richter*, 6 FCC Rcd 7565; In the
    Matter of Applications of Capitol Radiotelephone, PR Docket No.
    93-231, *Hearing Designation Order, Order to Show Cause and Notice
    of Opportunity for Hearing*, 8 FCC Rcd 6300, ¶ 4 (1993) (*Capitol
    Radiotelephone*).

[^58]: *See* Notice of Denial; Letter from William H. Kellett, Attorney,
    Licensing Division, Federal Communications Commission, to Alan M.
    Lurya, Esq., and Elizabeth Sachs, Esq. (dated March 18, 1994)
    (seeking description of results of any meetings held subsequent to
    Notice of Denial); Letter from Elizabeth R. Sachs to William H.
    Kellett, Esq., Attorney, Licensing Division, Federal Communications
    Commission, (dated April 4, 1994) (stating that Interstate had not
    been contacted by the Coop and had not had any complaints of
    co-channel licensee interference); Letter from Alan M. Lurya,
    Attorney at Law, to William H. Kellett, Esq., Attorney, Licensing
    Division, Federal Communications Commission, (dated April 11, 1994)
    (stating that a meeting \"as proposed, would be worthless.\"); *see
    also* Application for Review at 1-6.

[^59]: Application for Review at 8-9.

[^60]: Declaration of M. A. Hoffman at 1-3.

[^61]: Recognizing the assistance that frequency advisory committees
    provide to the Commission, Congress specifically authorized the
    Commission to utilize the services of such committees. *See* \"The
    Communications Amendments Act of 1982,\" P.L. 97‑259, 96 Stat. 1087,
    September 13, 1982 (codified at 47 U.S.C. § 332(b)). The Conference
    Report accompanying this legislation noted that:

    > Frequency coordinating committees not only provide for more
    > efficient use of the congested land mobile spectrum, but also
    > enable all users, large and small, to obtain the coordination
    > necessary to place their stations on the air. Without such
    > frequency coordinating activity, some of these applicants would
    > not be able to afford the engineering required in the application
    > process. Thus, by essentially equalizing the frequency selection
    > process for all applicants, the applicants are placed on a
    > competitive parity, with no one applicant operating on a better or
    > more commercially advantageous frequency than his or her
    > competitor.

    Conference Report No. 97‑765, 97th Cong. 2nd Sess., August 19, 1982,
    at 53, reprinted in 1982 U.S.Code Cong. & Ad.News 2237.

[^62]: *See, e.g.,* 47 C.F.R. § 90.175(a) (applicants bear the burden of
    proceeding and burden of proof in requesting the Commission to
    overturn a coordinator\'s recommendation); *see also id.*

[^63]: *See* Application for Review at 11; Petition for Reconsideration
    at 3-4.

[^64]: Application for Review at 6-7.

[^65]: Application for Review at 2-6.

[^66]: *See* 47 C.F.R. § 90.89 (1993).

[^67]: *See Lee Richter*, 6 FCC Rcd 7565, ¶ 7.

[^68]: *See 1986 Report and Order,* 103 FCC 2d at 1156.

[^69]: *See* 47 C.F.R. § 1.401 (governing petition for rulemakings);
    *see* Application for Review at 6-7; *see* Petition for
    Reconsideration at 3-4. We reiterate that there is no *per se* right
    to challenge the grant of a PLMR license and we are addressing this
    petition only as part of our own public interest inquiry. *See,
    e.g., supra* note 23.

[^70]: Application for Review at 7.

[^71]: Application for Review at 9-10.

[^72]: *Id.* at 10.

[^73]: 295 U.S. 495, 55 S.Ct. 837 (1935) (holding invalid the
    standardless delegation of legislative power to the President made
    in section 3 of the National Industrial Recovery Act). Application
    for Review at 10.

[^74]: *See generally* *Schecter Poultry Corp. v. United States*, 295
    U.S. 495.

[^75]: *See* Application for Review at 9-10.

[^76]: The difficulties encountered by the Coop appear to be operational
    in nature. Our rules mandate that the parties cooperate with each
    other to resolve their difficulties. The Deputy Chief of the former
    Licensing Division by letter dated December 4, 1992, directed the
    parties to meet and attempt to resolve their differences. It appears
    from the record that the Coop failed to comply with this directive.
    As a result, we believe that it would be premature for us to take
    further action at this time. If both parties are unable to resolve
    their difficulties through cooperation, then under Section 90.173(b)
    of the Commission\'s Rules, the Commission may cure the problem by
    imposing operating restrictions on one or both parties.