**Before the Corrected to include Federal Communications Commission DA
99-2592**

**Washington, D.C. 20554**

In re Application of )

)

JSM TELE-PAGE, INC. ) File No. 2000C3-CML

)

Station KNKD729 )

Request for Waiver of Paging Filing Freeze )

**MEMORANDUM OPINION AND ORDER**

**Adopted: November 18, 1999 Released: November 19, 1999**

By the Chief, Commercial Wireless Division, Wireless Telecommunications
Bureau:

**I. INTRODUCTION**

1\. In this Order, we grant subject to certain conditions a waiver of
the paging application freeze in favor of JSM Tele-Page, Inc. (JSM). JSM
requests reconsideration of a January 13, 1998 letter decision by the
Licensing and Technical Analysis Branch (Branch) denying JSM\'s request
for a waiver of the Commission\'s decision to suspend acceptance of new
applications for paging channels.[^1] As discussed below, JSM\'s
Petition was not timely filed and must be dismissed. Nonetheless, on our
own motion we grant a waiver of the freeze subject to certain
conditions.

**II. BACKGROUND**

2\. In February 1996, the Commission proposed rules to replace the
existing site-by-site licensing of paging services with a geographic
area licensing scheme under which mutually exclusive applications will
be resolved by competitive bidding.[^2] These changes were intended to
streamline licensing procedures and provide a flexible operating
environment for all paging services.[^3] In order to facilitate the
transition to geographic area licensing, the Commission suspended the
acceptance of new applications for paging channels that were not
received by midnight February 8, 1996.[^4] On December 10, 1997, almost
two years after the Commission suspended acceptance of new applications,
JSM filed an application for waiver of the suspension in order to extend
its existing paging system on the 454.175 MHz frequency into the rural
area in and around Hayward, Wisconsin. By letter decision dated January
13, 1998, the Branch denied JSM\'s waiver request and found that JSM\'s
request did not satisfy the waiver standard set out in the Commission\'s
rules.

**III. DISCUSSION**

3\. JSM\'s Petition for Reconsideration of the Branch\'s decision is
untimely filed and must be dismissed. JSM\'s Petition for
Reconsideration was filed on February 17, 1998, more than thirty days
after the Branch\'s January 13, 1998 decision.[^5] Nevertheless, we will
consider on our own motion granting a waiver of the freeze in favor of
JSM. We note that, independent of our dismissal of JSM\'s Petition for
Reconsideration, JSM could file a new waiver request.

4\. A waiver of our rules applicable to Public Mobile Services is
appropriate when a party demonstrates either: (1) that the underlying
purpose of the rule would not be served or would be frustrated by
application to a particular case, and that grant of a waiver is
otherwise in the public interest, or (2) that the unique facts and
circumstances of a particular case render application of the rule
inequitable, unduly burdensome or otherwise contrary to the public
interest, or that the applicant has no reasonable alternative.[^6]
Taking together all the facts and circumstances of this case, we
conclude that failure to grant a waiver, as conditioned below, would be
contrary to the public interest. JSM has demonstrated that a waiver is
appropriate in this case due to the unique public interest
considerations. In particular, we note the public interest associated
with making competitive paging service quickly available in rural areas.
In addition, JSM has submitted letters from the Wisconsin Department of
Corrections and the Bureau of Alcohol, Tobacco, and Firearms stating
that they need service in the area that JSM seeks to cover.

5\. In order to further ensure that this waiver is consistent with the
public interest, we will impose the following conditions: (1) any
licenses granted to JSM pursuant to this waiver will have secondary
status to the ultimate geographic area licensees for all Economic Areas
(EAs) into which JSM\'s interference contours extend; and (2) upon
receiving notice from a geographic area licensee that the geographic
area licensee intends within 90 days to initiate operation of a facility
the interference contour of which will overlap with the interference
contour of any transmitter licensed pursuant to this waiver, JSM shall
within 90 days either cease operation of the transmitter in question or
change its technical parameters to eliminate the overlapping
interference contour. We believe that grant of JSM\'s waiver request
subject to these conditions appropriately balances the value JSM\'s
service provides to the public against the importance of preserving the
current licensing landscape as we transition to geographic area
licensing.[^7] We note that the Commission has recently granted a waiver
of the paging application freeze subject to these conditions in another
matter.[^8]

6\. Within 30 days of the effective date of this order, if the
conditions set forth herein are acceptable to JSM, JSM shall refile the
applications that were previously dismissed by the Branch, together with
an indication in writing that it will accept these conditions. Upon
receipt of this submission, we will promptly place JSM\'s applications
on public notice as accepted for filing and will process those
applications in accordance with the Commission\'s rules and its
customary procedures, notwithstanding the paging application freeze.

**IV. CONCLUSION**

7\. For the reasons discussed herein, we waive the paging application
freeze subject to the conditions set forth herein.

**V. ORDERING CLAUSES**

8\. Accordingly, IT IS ORDERED that, pursuant to the authority of
Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 154(i) and 405, and Sections 0.331 and 1.106 of the
Commission\'s Rules, 47 C.F.R. §§ 0.331 and 1.106, the Petition for
Reconsideration filed by JSM Tele-Page, Inc. IS DISMISSED.

9\. IT IS FURTHER ORDERED, pursuant to the authority of Section 4(i) of
the Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
Sections 0.331 and 1.925(b)(3) of the Commission\'s Rules, 47 C.F.R. §§
0.331 and 1.925(b)(3), that the paging application freeze IS WAIVED
subject to the conditions stated herein.

FEDERAL COMMUNICATIONS COMMISSION

Steven E. Weingarten

Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: ^?^ Petition for Reconsideration of JSM Tele-Page, Inc., File No.
    2000C3-CML (Feb. 17, 1998); letter from Roger Noel, Chief, Licensing
    and Technical Branch, Commercial Wireless Division, Wireless
    Telecommunications Bureau, to JSM Tele-Page, Inc., dated Jan. 13,
    1998.

[^2]: ^?^ *See* 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) (*NPRM*). 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) (*Second Report and Order*),
    *Memorandum Opinion and Order on Reconsideration and Third Report
    and Order*, FCC 99-98 (rel. May 24, 1999).

[^3]: ^?^ *NPRM*, 11 FCC Rcd. at 3109, ¶ 1.

[^4]: ^?^ *Id.* at 3136, ¶ 139. The freeze is subject to limited
    exceptions, none of which are relevant here. *See Second Report and
    Order*, 12 FCC Rcd. 2739, 2757, ¶¶ 6, 43.

[^5]: ^?^ Section 1.106(f) of the Commission\'s Rules states that a
    petition for reconsideration must be filed within thirty days from
    the date of the public notice of the final Commission action, as
    that date is defined in Section 1.4(b). 47 C.F.R. § 1.106(f); *See
    also* 47 U.S.C. § 405. Section 1.4(b)(5) establishes that the date
    appearing on the Branch\'s letter decision, January 13, 1998,
    initiates the thirty day computation. 47 C.F.R. § 1.4(b)(5).

[^6]: ^?^ 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). This
    standard was formerly codified at section 22.119(a) of the rules, 47
    C.F.R. § 22.119(a) (1997). *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). For
    convenience, we cite this standard herein by its current
    codification.

[^7]: ^?^ We do not suggest that other incumbent paging licensees will
    necessarily be permitted to expand their systems subject to similar
    conditions. In light of the fact that the auction of geographic area
    paging licenses in the 929 MHz and 931 MHz bands is scheduled to
    begin on February 24, 2000, with the other paging frequency bands to
    follow thereafter, we believe that in the vast majority of
    circumstances, the geographic area licensing process will be
    sufficient to meet the expansion needs of existing paging systems.

[^8]: ^?^ *See* Acadian Ambulance Services, Inc., *Order*, FCC 99-338
    (rel. Nov. 9, 1999).