**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. A060756             |
|                                  | *) |                              |
| CHARLES T. CRAWFORD              | ** | File No. A059522             |
|                                  |    |                              |
| Licensee of Conventional         | *  | File No. A060866             |
| Business Station WPRL470, Santa  | *) |                              |
| Inez, California                 | ** | File No. A060755             |
|                                  |    |                              |
| DENNIS ENYEART                   | *  | File No. A060916             |
|                                  | *) |                              |
| Licensee of Conventional         | ** |                              |
| Business Station WPRL897, Santa  |    |                              |
| Inez, California                 | *  |                              |
|                                  | *) |                              |
| RADIOWAVE COMMUNICATIONS         | ** |                              |
|                                  |    |                              |
| Licensee of Conventional         | *  |                              |
| Business Station WPLV944, Santa  | *) |                              |
| Inez, California                 | ** |                              |
|                                  |    |                              |
| WILLIAM SORRENTINO               | *  |                              |
|                                  | *) |                              |
| Licensee of Conventional         | ** |                              |
| Business Station WPRL252, Santa  |    |                              |
| Inez, California                 | *  |                              |
|                                  | *) |                              |
| US MOBILE WIRELESS               | ** |                              |
|                                  |    |                              |
| Licensee of Conventional         | *  |                              |
| Business Station WPRL260, Santa  | *) |                              |
| Inez, California                 | ** |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: January 25, 2002 Released: January 31, 2002**

By the Commission:

# Introduction

1.  On May 4, 2001, James A. Kay, Jr., (Kay) filed a consolidated
    Application for Review[^1] of a decision by the Licensing and
    Technical Analysis Branch (Branch), of the Public Safety and Private
    Wireless Division (Division) dismissing, as untimely,[^2] Kay's
    consolidated petition for reconsideration of the above-captioned
    applications for Conventional Business Stations WPRL470, WPRL897,
    WPLV944, WPRL252, and WPRL260, Santa Inez, California.[^3] Kay's
    Application for Review also arguably seeks review of the Division's
    action denying his separately filed petition for reconsideration of
    the grant of the application for Station WPRL897.[^4] For the
    reasons stated below, we dismiss Kay's Application for Review for
    failure to comply with the Commission's procedural requirements.

# BACKGROUND

2.  Kay is authorized to operate Trunked Specialized Mobile Radio
    (SMR)[^5] Station WNJA910 in the Oat Mountain, California area on
    frequencies 855.0625 MHz, 855.2625 MHz, 855.2875 MHz, 855.8125 MHz,
    and 859.7875 MHz.[^6]

3.  On November 7, 2000, Radiowave Communications was authorized to
    operate Station WPLV944 on frequency 855.0625 MHz.[^7] On November
    7, 2000, William Sorrentino was authorized to operate Station
    WPRL252 on frequency 855.2875 MHz.[^8] On November 7, 2000, US
    Mobile Wireless was authorized to operate Station WPRL260 on
    frequency 859.7875 MHz.[^9] On November 8, 2000, Charles T. Crawford
    was authorized to operate Station WPRL470 on frequency 855.2625
    MHz.[^10] On November 13, 2000, Dennis Enyeart was authorized to
    operate Station WPRL897 on frequency 855.8125 MHz.[^11] With the
    exception of secondary sites licensed to Enyeart and Radiowave, each
    of these stations were licensed at locations more than 70 miles from
    Kay's Trunked SMR Station WNJA910.

4.  On December 13, 2000, Kay filed a Petition for Reconsideration
    (First Petition) of the Branch's November 13, 2000 action
    authorizing Enyeart to operate on frequency 855.8125 MHz at a
    secondary site in Santa Barbara Storage, CA, under Station WPRL897.
    Kay alleged that the secondary site did not afford Kay's Oat
    Mountain primary site the requisite seventy-mile co-channel
    protection.[^12] Kay argued that the Santa Barbara facility, which
    was located 63 miles from Kay's Oat Mountain site, should not have
    been coordinated and the application should not have been
    granted.[^13] Therefore, Kay requested set aside of the license
    grant and dismissal of the underlying application.[^14]

5.  On December 14, 2000, Kay filed a consolidated "Request for
    Dismissal or Denial of Application" (Second Petition) against the
    five above-captioned applications.[^15] Kay requested that the
    applications be dismissed or denied if they had been filed and were
    pending, because the proposed operations would not afford Kay's
    operations at Station WNJA910 the requisite seventy-mile co-channel
    protection.[^16] In the event the applications had been granted, Kay
    requested reconsideration of any such grant pursuant to Section 405
    of the Communications Act of 1934, as amended.[^17]

6.  On January 11, 2001, Crawford, Enyeart, Radiowave, Sorrentino, and
    US Mobile (Respondents) filed a consolidated "Response" and argued
    that Kay's Second Petition was filed beyond the statutory thirty-day
    reconsideration period prescribed by Section 405 of the Act.[^18]
    Respondents also argued that Kay had no basis to challenge the grant
    of certain facilities licensed to Respondents since those sites were
    more than 70 miles from Kay's Oat Mountain site.[^19] Additionally
    Respondents argued that Enyeart's Santa Barbara Storage, CA,
    facility was licensed on a secondary basis and therefore Kay had no
    cause to object to its use.[^20]

7.  On March 13, 2001, the Division denied Kay's First Petition.[^21]
    The Division noted that Enyeart's secondary site was authorized to
    operate on only a non-interference basis.[^22] The Division held
    that secondary sites may be required to terminate operations should
    a co-channel licensee locate a primary station within seventy miles
    of the secondary site, and interference occurs as a result.[^23] Kay
    did not allege or present any objective evidence of
    interference.[^24]

8.  On April 4, 2001, the Branch dismissed Kay's Second Petition as
    untimely filed.[^25] Additionally, the Branch observed that the
    Division had previously addressed Kay's concerns relative to Station
    WPRL897.[^26] On May 4, 2001, Kay filed an Application for Review of
    the Branch's decision.[^27] On June 5, 2001, Respondents filed an
    Opposition to Application for Review.[^28]

# DISCUSSION

9.  In his Application for Review, Kay argues he was not afforded
    adequate notice of the five license grants.[^29] In this connection
    Kay argues the Universal Licensing System (ULS)[^30] online database
    maintained by the Commission made it difficult for Kay to "track"
    and promptly respond to Respondents' applications.[^31] Additionally
    Kay argues his Second Petition was timely filed relative to Station
    WPRL897[^32] and therefore, Kay argues, the Bureau erred in
    dismissing his Second Petition, irrespective of whether it was
    untimely vis-à-vis the other four Respondents.[^33] Alternatively,
    Kay argues that even if the 30-day period did apply, the Bureau and
    Commission are equitably estopped from applying the thirty-day rule
    against Kay, because Bureau staff allegedly acted in bad faith in
    applying the rule with respect to Kay pleadings.[^34] Kay argues
    that this alleged behavior denied Kay his "due process right to
    equal protection."[^35] Kay also requests reconsideration of "any
    favorable action on the above-captioned applications."[^36] In a
    footnote to that sentence, Kay references the Division's March 13
    *Order*.[^37] Respondents argue that Kay's Application for Review
    should be dismissed as procedurally defective because it raises new
    issues, which the Bureau had no opportunity to consider.[^38]

10. Kay has not previously argued to the Bureau that he was not afforded
    adequate notice of the grant of the applications or that the Bureau
    and the Commission are equitably estopped from applying the
    requirement of Section 405 of the Act that petitions for
    reconsideration be filed within thirty days from the date of public
    notice of an action. Section 1.115(c) of the Commission's Rules
    provides that "\[n\]o application for review will be granted if it
    relies on questions of fact or law upon which the designated
    authority has been afforded no opportunity to pass."[^39] The note
    to Section 1.115(c) states that "new questions of fact or law may be
    presented to the designated authority in a petition for
    reconsideration."[^40] As Respondents correctly point out, none of
    the arguments raised in Kay's application for review were previously
    presented to the Bureau in this proceeding. Kay could have raised
    these arguments by filing a reconsideration petition of the Branch
    decision but opted to file an application for review instead.[^41]
    Kay offers no explanation for failing to properly raise these
    issues, and he does not seek a waiver of Section 1.115(c). As Kay
    did not raise these arguments previously, consideration of these
    arguments at this juncture in connection with his Application for
    Review is precluded by Section 1.115(c) of the Commission\'s Rules.

11. Kay's Application for Review is untimely with respect to the
    Division *Order*. Kay requests reconsideration "of any favorable
    action on the above-captioned applications," if the Commission does
    not grant his application for review. Apart from the Branch Letter,
    Kay does not specify which "action" he is referring to, other than
    to reference the Division's *Order* in a footnote.[^42] Applications
    for Review must be filed within thirty days of public notice, which
    means the release date for non-rulemaking documents.[^43] The
    *Division* *Order* was released on March 13, 2001, but Kay did not
    file the Application for Review until May 4, 2001, which was
    twenty-two days late. Kay neither requested a waiver of the filing
    time limits nor explained why his request was late-filed.[^44]
    Accordingly, to the extent Kay seeks review of the *Division Order*,
    we will dismiss his Application for Review.

# CONCLUSION AND ORDERING CLAUSES

12. Kay's Application for Review makes arguments that were not
    previously presented to the Bureau and is untimely with respect to
    the *Division Order*. For the reasons stated above, we therefore
    dismiss Kay's Application for Review.

    **V. ORDERING CLAUSES**

13. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 5(c)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    155(c), and Section 1.115 of the Commission\'s rules, 47 C.F.R. §
    1.115, the consolidated Application for Review filed by James A.
    Kay, Jr. on May 4, 2001, IS DISMISSED.

14. IT IS ALSO ORDERED that, pursuant to Section 1.46 of the
    Commission's Rules, 47 C.F.R. § 1.46, that the Motion for Extension
    of Time jointly filed by Charles T. Crawford, Dennis Enyeart,
    Radiowave Communications, William Sorrentino, and US Mobile
    Wireless, on May 22, 2001, IS GRANTED.

    FEDERAL COMMUNICATIONS COMMISSION

    William F. Caton

    Acting Secretary

[^1]: Application for Review (filed May 4, 2001) (Kay AFR).

[^2]: Letter from Mary Shultz, Chief, Licensing and Technical Analysis
    Branch (Branch), Public Safety and Private Wireless Division to
    Robert J. Keller, Esq., on behalf of James A. Kay, Jr. (dated April
    4, 2001) (*Branch Letter*).

[^3]: Petition for Reconsideration (filed Dec. 14, 2000) (Second
    Petition).

[^4]: Dennis Enyeart, *Order*, 16 FCC Rcd 5441 (WTB PSPWD 2001)
    (*Division Order*); Petition for Reconsideration (filed Dec. 13,
    2000) (Petition).

[^5]: For the Part 90 definition of trunked radio system and SMR see 47
    C.F.R. § 90.7.

[^6]: Second Petition at 1.

[^7]: *See* FCC File No. A060866 (filed Sept. 22, 2000). Radiowave is
    presently authorized to operate frequency 855.0625 MHz at two
    primary sites, Santa Inez, CA, and the Santa Barbara Municipal
    Airport, CA, and one secondary site in South Mountain, CA, which are
    located approximately 81, 72, and 26 miles, respectively, from Kay's
    Oat Mountain site. Secondary operations refer to operations that may
    not cause interference to operations authorized on a primary basis
    and are not protected from interference from those primary
    operations. *See* 47 C.F.R. § 90.7.

[^8]: *See* FCC File No. A060755 (filed Sept. 19, 2000).

[^9]: *See* FCC File No. A060916 (filed Sept. 26, 2000).

[^10]: *See* FCC File No. A060756 (filed Sept. 19, 2000).

[^11]: *See* FCC File No. A059522 (filed Aug. 24, 2000).

[^12]: Petition at 1 *citing* 47 C.F.R. § 90.621. We note that Station
    WPRL897 is no longer authorized to operate on frequency 855.8125 MHz
    at the Santa Barbara Storage, CA, secondary site. *See* FCC File No.
    0000406485, (granted Mar. 21, 2001).

[^13]: Petition at 1.

[^14]: *Id*.

[^15]: Second Petition at 1.

[^16]: *Id*.

[^17]: *Id*. at n.1 citing 47 U.S.C. § 405(a).

[^18]: Response to Request for Dismissal or Denial of Applications at 2
    (filed Jan. 11, 2001) (Response).

[^19]: *Id*.

[^20]: *Id*. Respondents also argued that at the time Kay filed his
    Second Petition, Station WNJA910 was not authorized to operate on
    frequency 855.0625 MHz and therefore Kay had no basis to object to
    Radiowave's use of such frequency. *Id*. We disagree. Station
    WNJA910 was authorized to operate on frequency 855.0625 MHz at the
    time Kay filed his Second Petition. *See* Connex Freight, *Order on
    Reconsideration*, 15 FCC Rcd 13345 (WTB PS&PWD 2000).

[^21]: *Division Order*.

[^22]: *Id*. at ¶ 4.

[^23]: *Id*.

[^24]: *Id*.

[^25]: *Branch Letter.*

[^26]: *Id*. *citing* *Division Order*.

[^27]: Kay AFR at 1-2.

[^28]: Opposition to Application for Review (filed Jun. 15, 2001)
    (Opposition). In this connection we note that pursuant to 47 C.F.R.
    § 1.46(c), Respondents requested an extension of time to file
    responsive pleadings to Kay's AFR. *See* Motion for Extension of
    Time (filed May 22, 2000) (Motion). According to the Motion, Kay
    does not object. *Id*. By this *Order* we grant Respondents'
    request, as it would facilitate a complete record.

[^29]: Kay AFR at 3.

[^30]: In September 1998, the Commission adopted rule changes designed
    to implement the ULS, the integrated database and automated
    processing system developed to facilitate electronic filing of
    wireless applications, licensing information, and public access to
    such information for all wireless radio services. *See* Biennial
    Regulatory Review \-- Amendment of Parts 0, 1, 13, 22, 24, 26, 27,
    80, 87, 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 Services, Amendment of the Amateur
    Service Rules to Authorize Visiting Foreign Amateur Operators to
    Operate Stations in the United States, WT Docket No. 98-20, WT
    Docket No. 96-188, *Report and Order*, 13 FCC Rcd 21027 (1998).

[^31]: Kay AFR at 4.

[^32]: *Id.* at 5.

[^33]: *Id*. citing *Kessler v. FCC*, 326 F.2d 673 (1963), for the
    proposition that the Bureau's dismissal of his petition under the
    aforementioned circumstances violated his statutory right to
    reconsideration under Section 405 of the Act. That case concerns the
    imposition of a freeze on the acceptance of broadcast station
    applications pending the adoption of new rules. *Kessler*, 326 F.2d
    at 678. *Kessler* does not reference Section 405 and Kay cites no
    other authority on this point. Moreover, this argument contradicts
    the plain language of Section 1.106 of the FCC's Rules, which
    permits the Bureau to grant or not grant reconsideration in "whole
    or in part" and to dismiss as repetitious petitions for
    reconsideration, which have been denied previously. *See* 47 C.F.R.
    §§ 1.106(j), 1.106(k)(3).

[^34]: Kay AFR at 3, 5-6. Kay sought to incorporate, by reference, his
    January 27, 2000, Application for Review, filed in a separate and
    unrelated proceeding, to support his allegation that Bureau staff
    has acted in bad faith. *Id*. That application for review was
    dismissed in City of Commerce, *Order on Reconsideration*, 16 FCC
    Rcd 14461 (WTB, PS&PWD 2001).

[^35]: Kay AFR at 6.

[^36]: *Id*. at 2.

[^37]: *Id*. at 2 n.1.

[^38]: Opposition at 3, *citing* 47 C.F.R. § 1.115(c). Respondents also
    argued that Kay's Second Petition was not filed with the Office of
    the Secretary, FCC, and that Kay's underlying interference complaint
    was not accompanied by a sworn affidavit. Opposition at n.2. We note
    that Kay's Second Petition bears the FCC Secretary's stamp dated
    December 14, 2000, and Kay alleged that the subject license grants
    violated the distance requirement set forth in Section 90.621(b) of
    the Commission's Rules, 47 C.F.R. § 90.621(b).

[^39]: 47 C.F.R. § 1.115(c).

[^40]: *Id*. at note *citing* 47 C.F.R. § 1.106.

[^41]: 47 C.F.R. § 1.104(b).

[^42]: Kay AFR at 2 n.1. In the event that Kay also intended to seek
    reconsideration of the Branch Letter, we note that Section 1.104(b)
    of the Commission's Rules requires persons seeking consideration of
    a final action taken pursuant to delegated authority to file either
    a petition for reconsideration or an application for review (but not
    both) within 30 days from the date of public notice. 47 C.F.R. §
    1.104(b).

[^43]: 47 C.F.R. § 1.4(b)(2).

[^44]: Section 1.115(d) of the Commission's Rules requires that
    Applications for Review and supplements thereto be filed within 30
    days from the date of public notice. 47 C.F.R. § 1.115(d). Time
    limitations on the filing of Applications for Review are established
    solely by Commission rule. *See* Crystal Broadcasters, et al.,
    *Memorandum Opinion and Order*, 11 FCC Rcd 4680 (1996) (*Crystal*).
    The Commission may waive the filing deadline, however, if a party
    requests a waiver and shows good cause for a waiver. *See, e.g.*
    MTD, Inc., *Memorandum Opinion and Order*, 6 FCC Rcd 34 (1991)
    (late-filed application for review accepted where no party would be
    prejudiced by consideration of the pleading); Gilmore Broadcasting
    Corporation, *Memorandum Opinion and Order*, 5 FCC Rcd 5530 n.1
    (1990) (untimely supplements to applications for review accepted
    because party could not have raised the issues in its original
    application for review). Because Kay has neither explained his
    failure to file a timely application for review nor requested a
    waiver of the filing deadline, no waiver is warranted in this case.
    *See Crystal*, 11 FCC Rcd at 4681 ¶ 9.