**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Applications of )

)

CONNEX FREIGHT ) FCC File No. D08472

)

for Station WPKX960 to Operate )

Frequency pair 810/855.0625 MHz )

at Chatsworth (Los Angeles), California )

)

**ORDER ON RECONSIDERATION**

**Adopted: July 28, 2000 Released: August 1, 2000**

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

# I. Introduction

1.  On October 22, 1997, James A. Kay, Jr. (Kay) filed a petition for
    reconsideration (Petition for Reconsideration) of the Licensing and
    Technical Analysis Branch (Branch), Public Safety and Private
    Wireless Division, Wireless Telecommunications Bureau's (Bureau)
    grant of the above-captioned application for Station WPKX960 (Connex
    Application). For the reasons discussed below, we grant the Petition
    for Reconsideration and rescind the authorization of Connex Freight
    to operate Station WPKX960.

# II. Background

2.  *Kay Modification Application.* On June 22, 1993, the FCC granted
    Kay authority to operate Station WJNA910 on various frequencies in
    the 800 MHz band, including frequency 855.0625 MHz, in Chatsworth,
    California. This authority was scheduled to expire on June 22, 1998.
    On April 26, 1994, Kay filed an application to modify the
    authorization for Station WJNA910 by adding additional frequencies
    as well as to surrender the authorization to operate on 855.0625
    MHz.[^1] The Bureau's former Licensing Division granted the
    modification application on October 31, 1995 and removed Kay's
    authorization to operate on 855.0625 MHz from the FCC's licensing
    database.[^2] On November 27, 1995, the Licensing Division informed
    Kay that, as part of a pending hearing proceeding, it had set aside
    its grant of the modification application and returned it to pending
    status.[^3] Although the Licensing Division set aside the
    modification application, it did not restore the information in the
    FCC's licensing database to reflect the licensing information prior
    to the grant of Kay's modification application. As a result, the
    FCC's licensing database no longer indicated Kay's authorization to
    operate on 855.0625 MHz.

3.  On May 16, 1997, the Bureau's former Consumer Assistance Branch
    informed Kay that it was taking back the channels authorized in the
    modification application because Kay had failed to timely implement
    the authorized modifications.[^4] Kay responded on June 6, 1997,
    stating that he had not implemented the authorized modifications to
    Station WJNA910 because the Licensing Division had set aside the
    modification application and returned it to pending status.[^5] Kay
    further stated that because the Bureau, in the May 16^th^ Letter,
    indicated that it had taken back the channel for reassignment, its
    records should reflect that the modification application remains on
    file and in pending status and requested that the Bureau correct its
    licensing data to reflect the parameters associated with Kay's
    authorized operations.[^6] Additionally, Kay argued that he was not
    under an obligation to complete construction within a year of
    October 31, 1995, because the Licensing Division had set aside the
    modification application on November 27, 1995, and Kay was therefore
    without authority to implement the proposed modifications.[^7]

4.  On May 21, 1995, Connex Freight (Connex) filed an application
    seeking to operate on frequency pair 810/855.0625 MHz at Chatsworth,
    California. On September 2, 1997, while the Connex Application
    remained pending, Kay requested dismissal of the Connex
    Application.[^8] Kay opined that the Connex Application was filed
    because the FCC's licensing database indicated that the channel was
    available, and argued that the database was inaccurate because Kay
    continued to hold a valid authorization for the frequency pair
    requested by Connex Freight.[^9] Kay stated that although the
    frequency pair would have become available as the result of the
    grant of its modification application, such grant was set aside by
    the November 27^th^ Letter.[^10] Kay further stated that
    "\[a\]lthough the Bureau set aside the grant of the requested
    modification, the database was never updated to reflect that
    action."[^11] Kay noted that he had repeatedly called this matter to
    the attention of the Commission staff, and reiterated his request
    for the Bureau to update its licensing records.[^12] On September
    22, 1997, the Branch granted the Connex Application and assigned
    Connex call sign WPKX960. On October 22, 1997, Kay filed the
    Petition for Reconsideration.

5.  On November 27, 1998, Connex subsequently applied for authorization
    to modify Station WPKX960.[^13] On March 31, 1999, Kay filed a
    petition seeking dismissal or denial of this application (Petition
    to Deny-Connex).[^14] On April 29, 1999, the Branch granted Connex's
    application to modify Station WPKX960, effectively denying the
    Petition to Deny-Connex.

6.  This proceeding presents us with three distinct issues requiring
    resolution. First, does Kay retain an effective and valid
    authorization for operation on 855.0625 MHz? Second, did Kay lose
    this authorization for failure to implement authorized modifications
    in a timely fashion? Third, was the Connex application granted in
    error? We note that because in their respective pleadings, the
    parties raise the same legal issues arising from the same nucleus of
    operative facts we will address the issues collectively, rather than
    addressing the issues raised by each pleading individually.

# III. Discussion

7.  *Status of Kay's Authorization to Operate on Frequency 855.0625
    MHz.* Kay argues that the Branch could not assign 855.0625 MHz to
    another party because Kay retained an effective and valid
    authorization for that frequency.[^15] We agree. Section 1.113 of
    the Commission's Rules permits a delegated authority to set aside an
    action on its own motion.[^16] License grants are made subject to
    the provision that they may be set aside within thirty days. The
    Commission has previously held that the set aside of a license grant
    within this period was not a final grant. Thus, the set aside of the
    grant of the modification application resulted in the return of the
    application to pending status.[^17] This action was taken without
    prejudice to further action that would be taken with respect to the
    modification application.[^18] Even though Kay requested to
    surrender 855.0625 MHz as part of his proposed modification to
    Station WJNA910, when the Licensing Division set aside the grant of
    the modification application, the authorization of Station WJNA910
    reverted to its pre-modification application status. For the same
    reasons, we also agree that the Consumer Assistance Branch erred
    when it found that Kay had failed to timely implement the
    modifications to Station WJNA910 that were proposed in the
    modification application.

8.  *Connex Applications.* We find that, because, as we discussed
    *supra*, Kay retained an effective and valid authorization for
    855.0625 MHz at Oat Mountain, the Licensing Division erred in
    granting Connex's authorization to operate on that frequency at that
    location.[^19] Similarly, we find that the Licensing Division erred
    in granting Connex's modification of its initial authorization to
    operate on that frequency at the Oat Mountain location.

9.  We disagree with Connex's argument that the Petition for
    Reconsideration, challenging the grant of Connex's initial
    authorization, is deemed denied because we did not act on the
    petition within ninety days of its filing on October 22, 1997.[^20]
    As Kay correctly points out, there is ample Commission and judicial
    precedent recognizing that the Commission's failure to act within
    ninety days of the filing of a petition for reconsideration does not
    constitute a denial of the petition.[^21]

10. Further, we disagree with Connex's argument that these matters are
    governed by the Commission's statement in *Frequency Coordination in
    the Private Land Mobile Radio Services* that "in the case of
    inconsistencies or discrepancies, the Commission's database will
    govern and be used to resolve any disputes."[^22] The Commission
    intended this "data base rule" to apply to cases involving
    inconsistencies and discrepancies between the Commission's databases
    and those of third parties, not to cases involving errors in the
    Commission's database itself.[^23]

11. We are similarly unpersuaded by Connex's contention that the Bureau
    properly granted the Connex Application because the database showed
    that 855.0625 MHz was available for assignment. While we generally
    do not make frequencies available for further assignment until we
    purge them from the database and do not accept applications for a
    particular frequency until that frequency has been deleted from the
    database, as we noted above, the Branch erred when it listed
    855.0625 MHz as available for assignment.

12. We also disagree with Connex's argument that in order to challenge
    Connex's application to modify Station WPKX960, Kay must show that
    he had suffered harmful interference from Connex's operation of that
    station.[^24] In light of Kay's assertion that the Licensing
    Division erred in granting Connex's initial authorization to operate
    Station WPKX960 on 855.0625 MHz because he retained a valid
    authorization to operate on that frequency, a showing of harmful
    interference is not required because Kay had exclusive use of this
    frequency.[^25] Consequently, we find that this frequency was not
    available for assignment to Connex.[^26]

# IV. Conclusion and Ordering Clauses

13. In light of the foregoing considerations, we grant the Petition for
    Reconsideration and terminate the license grant of Connex.
    Therefore, pursuant to Sections 4(i) and 405 of the Communications
    Act, as amended, 47 U.S.C. §§ 154, 405, and by Section 1.106 of the
    Commission\'s Rules, 47 C.F.R. § 1.106, IT IS ORDERED that the
    Petition for Reconsideration filed on October 22, 1997, by James A.
    Kay, Jr., IS GRANTED.

14. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act, as amended, 47 U.S.C. § 154(i) and Section 1.106
    of the Commission's Rules, 47 C.F.R. § 1.106, the grant of the
    license for call sign WPKX960 to Connex Freight IS RESCINDED.

15. 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]: This application was assigned FCC File No. 663289 (Kay
    Modification Application).

[^2]: *See* *Public Notice*, Wireless Bureau Vacates and Supersedes
    Grants to SMRS Announced by March 17, 1995 Public Notice (Oct. 31,
    1995).

[^3]: *See* Letter from Walter Boswell, Chief, Licensing Division,
    Wireless Telecommunications Bureau, FCC, to James A. Kay, dated
    November 27, 1995 (*November 27^th^ Letter)*. The hearing
    proceeding, *In the Matter of James A. Kay, Jr., Licensee of 152
    Part 90 Stations in the Los Angeles, California Area*, (WT Docket
    94-147) (Hearing Proceeding), examines Kay's fitness to be a
    Commission licensee and is currently pending on exceptions to the
    initial decision of Administrative Law Judge Joseph Chachkin.

[^4]: Letter from Kathryn M. Garland, Chief, Consumer Assistance Branch,
    Customer Service Division, Wireless Telecommunications Bureau, FCC
    to Kay, dated May 16, 1997 (*May 16^th^ Letter)*.

[^5]: Letter from Robert J. Keller, Counsel for Kay, to Kathryn M.
    Garland, Chief, Consumer Assistance Branch, Customer Service
    Division, Wireless Telecommunications Bureau, dated May 16, 1997,
    and sent to the Bureau on June 6, 1997 (*June 6^th^ Letter*).

[^6]: *Id.*

[^7]: *Id.*

[^8]: Letter from Robert J. Keller, Counsel for Kay, to Terry L. Fishel,
    Chief, Land Mobile Branch, Licensing Division, Wireless
    Telecommunications Bureau, FCC, dated September 2, 1997 (*September
    2^nd^ Letter*).

[^9]: *Id.*

[^10]: *Id.*

[^11]: *Id.*

[^12]: *Id.*

[^13]: The Bureau assigned file number A022968 to this application.

[^14]: On April 13, 1999, Connex filed an Opposition to the Petition to
    Dismiss or Deny (Connex Opposition), and on April 26, 1999, Kay
    filed a Reply to the Connex Opposition (Kay Reply-Connex). On April
    26, 1999, Kay filed a motion to disqualify Connex's counsel from
    further participation in these matters. In light of the fact that
    the counsel in question voluntarily withdrew on May 3, 1999, we will
    not address the motion to disqualify counsel in this order.

[^15]: Petition for Reconsideration at 1 and Petition to Deny-Connex at
    1.

[^16]: 47 C.F.R. § 1.113; *see also* Washoe County Physicians Answering
    Service, *Letter*, 35 Rad. Reg. 2d (P & F) 1028 (1975); COMNAV
    Marine, *Memorandum Opinion and Order*, 2 FCC Rcd 2144 (PRB 1987).

[^17]: *See* Teleglobe USA, Inc., *Order, Authorization and
    Certificate*, 11 FCC Rcd 8162 n.4 (IB 1996).

[^18]: *See* Jacor Broadcasting of Colorado, Inc., *Memorandum Opinion
    and Order*, 9 FCC Rcd 4472 (MMB 1994).

[^19]: *See* 47 C.F.R. § 1.934(e)(2), which provides that the Commission
    may dismiss applications that request spectrum which is unavailable
    because it was previously assigned to another licensee on an
    exclusive basis or cannot be assigned to the applicant without
    causing harmful interference.

[^20]: Connex Opposition at 2 *citing* 47 U.S.C. § 405(a).

[^21]: Kay Reply-Connex at 2 *citing* Rebecca Radio of Marco, 5 FCC Rcd
    2913 at n.8 (May 1990) (Commission order is valid despite the
    Commission\'s more than 30 day delay in granting reconsideration),
    and *Citizens Committee* *v. FCC*, 436 F2d 263 at n.5 (D.C. Cir.
    1970) (The fact that a Commission order was not issued within 90
    days of the filing of the petition for reconsideration does not
    render the order invalid).

[^22]: Connex Opposition at 3, *citing Frequency Coordination in the
    Private Land Mobile Radio Services*, 103 FCC 2d 1093 (1986), 60 Rad.
    Reg. 2d (P&F) 41, ¶ 41.

[^23]: *See Replacement of Part 90 by Part 88 to Revise the Private Land
    Mobile Radio Services and Modify the Policies Governing Them*, 12
    FCC Rcd 14307, ¶ 46 (1997) ("Any disputes that arise due to
    inconsistencies or discrepancies in the records **of different
    coordinators**, however, will be resolved using the Commission's
    database.")(emphasis added).

[^24]: Connex Opposition at 2.

[^25]: Kay's license lists 300 portable units and 900 vehicle units
    operating on 855.625 MHz from the Oat Mountain site. 47 C.F.R. §
    90.625 provides that where an applicant shows an 800 MHz private
    land mobile radio channel will be loaded with 70 mobile stations,
    that channel will be made available to the applicant for its
    exclusive use in the area he proposes to operate. *See* 47 C.F.R. §
    90.625(a).

[^26]: *See* 47 C.F.R. § 1.934(e)(2), which provides that the Commission
    may dismiss applications that request spectrum which is unavailable
    because it was previously assigned to another licensee on an
    exclusive basis or cannot be assigned to the applicant without
    causing harmful interference. This provision clarifies former 47
    C.F.R. § 1.958(a)(6) (1998) which categorized these applications as
    not in accordance with the Commission's rules or requirements and
    subject to dismissal. *See* former 47 C.F.R. § 1.958(a)(6).