Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. 9911D134107         |
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| TEN FOUR COMMUNICATIONS          | ) |                              |
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| Request for Modification of      | * |                              |
| License for Station WNXM895, a   |   |                              |
| 900 MHz Trunked System located   | * |                              |
| in Patterson, California         | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: December 19, 2000 Released: December 21, 2000**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

1\. *Introduction*. We have before us a petition for reconsideration
(Petition) filed on behalf of Matson Development Company (Matson),
relating to the March 14, 2000, grant of the captioned modification
application. The subject modification application seeks to allow Ten
Four Communications (Ten Four) to operate a trunked Business Radio
Service station on frequency pair 898.6500/937.6500 MHz.[^1] For the
reasons set forth below, we grant the Petition and set aside the grant
of the captioned application.

2\. *Background.* On May 31, 1996, DSS Company (DSS) filed an
application requesting authorization to operate a 900 MHz conventional
Business Radio Service station on frequency pair 898.6500/937.6500
MHz.[^2] The application was granted on July 10, 1996, authorizing DSS
to operate on the frequency pair with sixty-five authorized mobiles
under Call Sign WPJK857.[^3] On November 21, 1996, Matson filed an
application requesting authorization to operate a 900 MHz conventional
Business Radio Service station in the Walnut Creek, California area on
the same frequency pair as DSS.[^4] On October 16, 1997, the Commission
granted Matson's application and authorized it to operate on a shared
basis, under Call Sign KNNK672 with seventy mobiles.[^5] That station is
located approximately 39 miles from Ten Four's Station WNXM895, a
trunked Business Radio Service station, authorized to operate on
approximately forty 900 MHz frequencies.[^6]

3.  On May 22, 1998, Ten Four filed a modification application, seeking,
    among other things, assignment of the frequency pair licensed under
    Station WPJK857 from DSS to Ten Four and authorization to allow Ten
    Four to add that frequency pair to its trunked Station WNXM895.[^7]
    On or about March 19, 1999, while Ten Four's assignment application
    was still pending, DSS filed an application seeking cancellation of
    its license for Station WPJK857.[^8] On March 24, 1999, DSS's
    cancellation application was granted.[^9]

4.  On March 14, 2000, the application to assign Station WPJK857 to Ten
    Four was granted, thus authorizing Ten Four to add that frequency
    pair to its trunked Station WNXM895.[^10] Matson timely filed the
    instant Petition on April 13, 2000, seeking the removal of frequency
    pair 898.6500/937.6500 MHz from Ten Four's March 14, 2000,
    grant.[^11] An opposition to the Petition was never filed.

5.  *Discussion*. Matson argues that as a result of the cancellation of
    DSS's license on March 24, 1999, Matson obtained exclusive use of
    the frequency pair 898.6500/937.6500 MHz because Matson's station
    was licensed for seventy mobile units, the number required to obtain
    exclusivity.[^12] Matson argues that because the transmitter
    locations for Matson's Station KNNK672 and Ten Four's Station
    WNXM895 are within 70 miles of each other (*i.e.* 39 miles apart),
    authorizing Ten Four to use the frequencies licensed to Matson
    violated the Commission's Part 90 rules.[^13]

6.  Based on our review of the record in this proceeding, we agree with
    Matson that Ten Four should not have been authorized to operate on
    the channel formerly licensed to DSS. Under Section 90.633(b) of the
    Commission's Rules, a 900 MHz channel associated with a conventional
    system will not be assigned to additional licensees after it is
    loaded to seventy mobile units.[^14] Once DSS's license for Station
    WPJK857 was cancelled, Matson achieved "exclusive" use of the
    subject channel because Matson was licensed for seventy mobile
    units. Ten Four could not be licensed to share a channel in which
    Matson had received exclusive status.[^15] Moreover, an additional
    reason why the grant of Ten Four was inappropriate under the
    circumstances presented is that once the DSS authorization was
    cancelled, the station authorization did not exist and thus could
    not be assigned to Ten Four. Further, even if we treated Ten Four's
    application as an application for a new station, the application
    could not be granted. Section 90.621(b) of the Commission's Rules
    states that co-channel Business category systems must be at least 70
    miles apart.[^16] Since the transmitter sites are only 39 miles
    apart, it was error to authorize Ten Four to operate on the
    frequency pair 898.6500/937.6500 MHz. For all of these reasons, we
    conclude that the subject modification application should not have
    been granted.

7.  Accordingly, IT IS ORDERED pursuant to Sections 4(i) and 405 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405,
    and Section 1.106(f) of the Communications Rules, 47 C.F.R. §
    1.106(f), that the petition for reconsideration filed on behalf of
    Matson Development Company on April 13, 2000, IS GRANTED.

8.  IT IS FURTHER ORDERED that the application File No. 9911D134107 BE
    RETURNED to pending status. The Licensing and Technical Analysis
    Branch shall process this application in accordance with this
    Memorandum Opinion and Order.

9.  This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131,
    0.331.

> FEDERAL COMMUNICATIONS COMMISSION
>
> D'wana R. Terry
>
> Chief, Public Safety and Private Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration (filed April 13, 2000) (Petition).

[^2]: *See* FCC File No. D040960 (filed May 31, 1996).

[^3]: *Id.* (granted July 10, 1996).

[^4]: *See* FCC File No. D06062 (filed Nov. 21, 1996).

[^5]: *Id.* (granted Oct. 16, 1997).

[^6]: Petition at 2.

[^7]: *See* FCC File No. D134107 (filed May 22, 1998).

[^8]: *See* FCC Form 405A, relating to Station WPJK857 (dated March 2,
    1999). Note: The filing date of the 405A cancellation application is
    not clear. The cover letter to the 405A application bears a date of
    March 18, 1999, with a notation that the 405A application was being
    forwarded to the FCC via federal express.

[^9]: *Id.* (granted Mar. 24, 1999).

[^10]: *See* FCC File No. D134107 (granted Mar. 14, 2000).

[^11]: Petition.

[^12]: *Id.* at 2.

[^13]: *Id.*

[^14]: 47 C.F.R. § 90.633(b).

[^15]: *Id*.

[^16]: *See* 47 C.F.R. § 90.621(b).