##  Before the

##  Federal Communications Commission

##  Washington, D.C. 20554

In the Matter of Applications of )

)

SAMUEL FERGUSON ) File Nos. 656123, 9606D040708

)

To Operate a Two-Way Mobile System )

In the San Diego, California Area )

On the Frequencies )

861.3500/816.3500 MHz )

)

and )

)

A TO Z ENTERPRISES, INC. ) File Nos. 662404, 9606D042160

)

To Operate a Two-Way Mobile System )

In the San Diego, California Area )

On the Frequencies )

861.3500/816.3500 MHz )

# ORDER ON RECONSIDERATION

**Adopted: December 11, 2000 Released: December 13, 2000**

By the Deputy Chief, Wireless Telecommunications Bureau:

# I. INTRODUCTION

1.  We have before us a petition[^1] filed on March 27, 2000, by A to Z
    Enterprises, Inc., d/b/a A to Z Towing (A to Z) requesting
    reconsideration of the Public Safety and Private Wireless Division's
    (Division) denial[^2] of two petitions filed by A to Z.[^3] The
    Division affirmed the dismissal of A to Z's applications seeking
    authorization to operate a two-way mobile system on frequency pair
    861.3500/816.3500 MHz in the San Diego, California area, and granted
    an application filed by Samuel Ferguson (Ferguson) to operate its
    two-way mobile system on the same frequency pair in the same area.
    We also have before us a petition for stay filed on March 27,
    2000[^4] by A to Z, requesting the grant of a stay of the effect of
    the Division's action, pending the outcome of A to Z's March 2000
    Petition. For the reasons discussed below, A to Z's March 2000
    Petition is denied and A to Z's March 2000 Petition for Stay is
    dismissed as moot.

# II. BACKGROUND

II. 

2\. On August 12, 1988, A to Z received a five-year authorization to
operate Station WNGT848 on frequency pair 861.3500/816.3500 MHz in the
San Diego area. A to Z failed to renew its authorization to operate
Station WNGT848 by the scheduled August 12, 1993 expiration date. As a
result, Station WNGT848's authorization expired as of August 12, 1993.
Between January 1994 and July 1996, A to Z and Ferguson each filed two
applications for the subject frequency pair.[^5] On March 24, 1994, A to
Z filed a request for Special Temporary Authorization (STA), seeking
authorization to operate its communications system. A to Z's STA Request
was granted on March 24, 1994, authorizing A to Z to operate on the
subject frequencies under Call Sign KAC5571 on a secondary,
non-interference basis, during the pendency of this proceeding.[^6]

3\. Ferguson's 1994 Application was granted on May 31, 1994, authorizing
Ferguson to operate a Conventional Industrial/Land Transportation system
on the subject frequencies under Call Sign WPEV482.[^7] On June 30,
1994, A to Z requested reconsideration of the May 31, 1994 licensing
action.[^8] On August 9, 1994, Ferguson's authorization to operate
Station WPEV482 was set aside, and A to Z's 1994 Application was
dismissed as prematurely filed.[^9] The basis for those actions was that
both applications were premature because A to Z's original license had
not been deleted from the Commission's database at the time A to Z and
Ferguson filed their 1994 Applications. Both A to Z and Ferguson filed
Petitions for reconsideration of the August 9, 1994 ruling.[^10]

4\. On October 30, 1994, A to Z's original authorization was finally
deleted from the Commission's licensing database. The frequency did not
become available for reassignment at that time, however, because
Ferguson's authorization to operate Station WPEV482 was not deleted from
the Commission's database until June 3, 1996. On June 11, 1996,
Ferguson's 1996 Application was filed, followed by the filing of A to
Z's 1996 Application on June 17, 1996. Both applicants sought
authorization to operate on the subject frequencies.[^11] Ferguson's
1996 Application was granted on September 3, 1998, by the Division's
Licensing and Technical Analysis Branch (Branch), because Ferguson was
the first to re-file for the subject frequencies when they became
available for reassignment.[^12] A to Z sought reconsideration of the
September 3, 1998 grant of Ferguson's 1996 Application.[^13]

5\. On February 25, 2000, the Division denied A to Z's September 1994
and October 1998 Petitions.[^14] The Division affirmed the dismissal of
A to Z's 1994 Application because the subject frequencies had not been
deleted from the Commission's licensing database and were thus not
available for assignment at that time.[^15] In addition, Ferguson's
September 1994 Petition was dismissed on February 25, 2000, because it
was untimely filed by one day.[^16] With respect to A to Z's October
1998 Petition, the Division affirmed the Branch's grant of the subject
frequencies to Ferguson because Ferguson was the first applicant to file
for the frequency pair after it was deleted from the Commission's
licensing database.[^17]

6\. On March 27, 2000, A to Z filed the instant Petition and Petition
for Stay.[^18] A to Z argues that it has been using the subject
frequencies since 1988, presently under an STA, and only allowed its
license to lapse "inadvertently."[^19] A to Z alleges that Ferguson's
1994 Application was fraudulent, since Ferguson initially filed as a
corporation, but did not have corporate status. A to Z argues that after
Ferguson's 1994 Application was dismissed on August 9, 1994, Ferguson's
September 1994 Petition was filed, requesting reconsideration of the
August 9, 1994 dismissal action, and the subject frequencies should not
have been deleted from the Commission's database on June 3, 1996, until
after Ferguson's September 1994 Petition had been resolved. A to Z
characterizes the deletion of the frequencies on June 3, 1996 as
"fundamental error."

#### DISCUSSION

7\. The parties do not dispute the decisionally significant facts in
this case. A to Z allowed its authorization to operate Station WNGT848
on frequency pair 861.3500/816.3500 to expire on August 12, 1993, by
failing to submit a renewal of license application in a timely manner.
To avoid frequency coordination errors, the frequencies covered by an
expired private land mobile radio (PLMR) license remain unavailable for
reassignment to any applicant until the license is deleted from the
Commission's database.[^20] This has been a consistent PLMR policy,[^21]
and the normal reassignment process for PLMR licenses.[^22] After A to Z
failed to renew its license in August of 1993, its license remained on
the Commission's database until October, 1994. The frequencies were then
still unavailable for assignment until June 3, 1996, when Ferguson's
license for Station WPEV482 was deleted from the database.[^23] When
implementing its database deletion policy, the Commission noted that its
deletion policy did not provide a guarantee that the deletion would take
place in a timely manner.[^24] Once the frequencies were deleted from
the Commission's database, applicants were free to file for the
frequencies associated with the station.[^25] Because private land
mobile radio stations are available on a first-come, first-served
basis,[^26] and Ferguson was the first applicant to file for the subject
frequencies after the subject frequencies had been deleted from the
Commission's licensing database, Ferguson's 1996 application was
accepted for filing and granted.

8\. A to Z asserts that the deletion of Station WPEV482 from the
Commission's database on June 3, 1996, was "fundamental error," because
Ferguson's 1994 Petition had not been resolved at the time of deletion.
We do not agree with A to Z's argument that we are required to toll all
actions where a licensee files a petition for reconsideration. To the
contrary, Section 1.102(b)(2) of the Commission's Rules states that an
action taken pursuant to delegated authority that is the subject of a
petition for reconsideration is stayed pending disposition of that
petition only at the discretion of the designated authority. [^27]
Ferguson did not present facts in its 1994 Petition sufficient to
justify tolling the deletion of the subject frequencies prior to the
June 3, 1996 deletion date, nor did it request such tolling.[^28]

9\. A to Z argues that Ferguson's 1994 Application was in some way
"fraudulent." This argument has been addressed in the February 25, 2000
*Order*.[^29] The February 25, 2000 *Order* noted that Ferguson's 1994
Application was originally filed to reflect corporate status, but was
amended to reflect status as an individual.[^30] The February 25, 2000
*Order* also disposed of Ferguson's 1994 Application, on the basis that
it had been filed prior to the deletion of the subject frequencies from
the Commission's licensing database.[^31] Review of A to Z's March 2000
Petition reveals that the February 25, 2000 action contains no material
error or omission and that the arguments raised by A to Z have already
been considered and rejected. A to Z has not shown material error or
omission in the February 25, 2000 action, nor has it raised additional
facts not known or not existing until after the petitioner's last
opportunity to present such matters.[^32] Thus, we find that A to Z's
March 2000 Petition simply reiterates arguments previously considered
and rejected and should be denied on this basis.[^33] In light of our
decision to deny the A to Z March 2000 Petition, we are dismissing, as
moot, A to Z's March 2000 Petition for Stay.

# IV. CONCLUSION AND ORDERING CLAUSES

10\. Ferguson was the first applicant to file an application after the
subject frequencies were deleted from the Commission's licensing
database. We find that there was nothing improper in the Branch's action
of deleting the subject frequencies from the licensing database prior to
the resolution of Ferguson's 1994 Petition. A to Z's March 2000 Petition
does not show a material error or omission in the February 25, 2000
*Order*, nor does it raise additional facts not known or not existing
until after petitioner's last opportunity to present such matters.
Accordingly, denial of A to Z's March 2000 Petition and dismissal of A
to Z's March 2000 Petition for Stay is warranted.

11\. For the reasons discussed above, 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 of the Commission's Rules, 47
C.F.R. § 1.106, that the petition for reconsideration filed by A to Z
Enterprises, Inc. d/b/a A to Z Towing on March 27, 2000, IS DENIED.

12\. IT IS FURTHER ORDERED pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), the Petition
for Stay filed by A to Z Enterprises Inc., d/b/a A to Z Towing on March
27, 2000, IS DISMISSED AS MOOT.

13\. As a result of this action, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), the grant of
Samuel Ferguson's Application No. 9606D040708 IS HEREBY AFFIRMED,
authorizing Ferguson Ready Mix to operate Station WPMU478 on frequencies
861.3500/816.3500 MHz in the San Diego, California area.

14\. 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

Kathleen O'Brien Ham

Deputy Chief, Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration (filed March 27, 2000) (A to Z's
    March 2000 Petition).

[^2]: *See* Samuel Ferguson and A to Z Enterprises, *Order*, 15 FCC Rcd
    4363 (WTB PSPWD 2000) (February 25, 2000 *Order*).

[^3]: Petitions for Reconsideration (filed September 7, 1994 and October
    2, 1998) (respectively, A to Z's September 1994 Petition and A to
    Z's October 1998 Petition).

[^4]: Petition for Stay (filed March 27, 2000) (A to Z's March 2000
    Petition for Stay).

[^5]: *See* FCC File No. 656123 (filed by Ferguson on Jan. 25, 1994, and
    amended by Ferguson on April 1, 1994 to reflect its status as an
    individual, not as a corporation) (Ferguson's 1994 Application); FCC
    File No. 662404 (filed by A to Z on March 31, 1994) (A to Z's 1994
    Application); FCC File No. 9606D040708 (filed by Ferguson on June
    11, 1996) (Ferguson's 1996 Application); and FCC File No.
    9606D042160 (filed by A to Z on June 17, 1996) (A to Z's 1996
    Application).

[^6]: *See* Special Temporary Authorization (STA) granted March 25, 1994
    under Call Sign KAC5571. The STA, with subsequent renewals,
    authorized A to Z to operate on frequency pair 816.3500/861.3500 MHz
    in the San Diego, California area until August 11, 2000. We note
    that a letter was faxed to the FCC's Gettysburg location on August
    23, 2000, requesting the set-aside of A to Z's STA to operate
    Station KAC5571 (Request to Rescind STA). *See* Letter to Laurel
    Woods, Federal Communications Commission, from Agnes Pennington,
    Communications Consultant, on behalf of Ferguson (dated Aug. 16,
    2000). A to Z filed an Opposition to the Request to Rescind STA on
    August 24, 2000. This Order on Reconsideration acts on the Request
    to Rescind STA and A to Z's Opposition.

[^7]: Ferguson's 1994 application, FCC File No. 656123, was granted
    under Call Sign WPEV482 on May 31, 1994, revoked on August 9, 1994,
    and deleted from the Commission's database on June 3, 1996.

[^8]: Petition for Reconsideration (filed June 30, 1994) (A to Z's June
    1994 Petition). A to Z has continuously operated on a secondary,
    non-interference basis under an STA on the subject frequencies since
    March 25, 1994. A to Z's current STA is for the period August 11,
    2000, through February 11, 2001.

[^9]: *See* Letter to Raymond A. Kowalski, counsel to A to Z
    Enterprises, Inc., from W. Riley Hollingsworth, Federal
    Communications Commission (dated August 9, 1994).

[^10]: Petition for Reconsideration (filed by A to Z on September 7,
    1994) (A to Z's September 1994 Petition); Petition for
    Reconsideration (filed by Ferguson on September 9, 1994) (Ferguson's
    September 1994 Petition).

[^11]: *Supra* note 2 at 2.

[^12]: *See* Letter to Raymond Kowalski, counsel to A to Z Towing, and
    Samuel Ferguson, from Steven Linn on behalf of Mary Shultz, Federal
    Communications Commission (dated September 3, 1998).

[^13]: *Supra* note 3.

[^14]: February 25, 2000 *Order*, 15 FCC Rcd at 4369 ¶ 20.

[^15]: *Id.* at 4367 ¶ 13.

[^16]: *Id.* at 4367 ¶ 12.

[^17]: *Id.* at 4368 ¶ 16.

[^18]: *Supra* notes 1 and 4. We note that a Petition for Expedited
    Action relating to A to Z's March 2000 Petition and March 2000
    Petition for Stay was filed on August 8, 2000, on behalf of A to Z.
    (A to Z's Petition for Expedited Action). The instant action
    disposes of A to Z's Petition for Expedited Action.

[^19]: A to Z's March 2000 Petition at 2.

[^20]: *See* Amendment of Parts 1 and 90 of the Commission's Rules
    Concerning the Construction, Licensing and Operation of Private Land
    Mobile Radio Stations, *Memorandum Opinion and Order*, PR Docket No.
    90-481, 8 FCC Rcd 6690, 6693 at para. 24 (1993).

[^21]: *See e.g*., Central Radio Communications Corp., *Memorandum
    Opinion and Order*, 11 FCC Rcd 17,110 (1996) (three applications
    were dismissed because each application sought a channel after the
    expiration of a station license which was not yet available on the
    Commission's database).

[^22]: ^?^ *See* Amendment of Parts 1 and 90 of the Commission's Rules
    Concerning the Construction, Licensing and Operation of Private Land
    Mobile Radio Stations, *Report* *and Order*, PR Docket No. 90-481, 6
    FCC Rcd 7297, 7301 at paras. 22-25 (1991).

[^23]: We note that frequency pair 861.3500/816.3500 MHz became
    available on October 30, 1994, when the subject frequencies were
    deleted from the Commission's database. Both Ferguson and A to Z had
    filed applications for the frequencies in 1994, prior to the October
    30, 1994, deletion date. Due to the premature filing of Ferguson and
    A to Z's 1994 applications, both of the 1994 applications were
    subsequently dismissed. Ferguson was the first to re-file for the
    frequencies on June 11, 1996, followed by A to Z on June 17, 1996.
    The frequencies were subsequently granted to Ferguson under Call
    Sign WPJN775 on August 12, 1996. The August 12, 1996, authorization
    was set aside on August 14, 1996. The frequencies were again granted
    to Ferguson under Call Sign WPMU478 on January 4, 1999. The January
    4, 1999, authorization was set aside on January 22, 1999, pending
    further review.

[^24]: *See* Amendment of Parts 1 and 90 of the Commission's Rules
    Concerning the Construction, Licensing and Operation of Private Land
    Mobile Radio Stations, *Report* *and Order*, PR Docket No. 90-481, 6
    FCC Rcd 7297, 7301 at para. 25 (1991).

[^25]: *See*, *e.g.,* Central Radio Communications Corp., *Memorandum
    Opinion and Order*, 11 FCC Rcd 17,110 (1996) (three applications
    were dismissed because each application sought a channel after the
    expiration of a station license which was not yet available on the
    Commission's database).

[^26]: *See* 47 C.F.R. § 90.611(b).

[^27]: *See* 47 C.F.R. § 1.102(b)(2). *See also* Time Warner, Inc.,
    *Order*, 13 FCC Rcd 7934 (1997).

[^28]: *See, e.g.,* Amendment of Part 90 of the Commission's Rules to
    Facilitate Future Development of SMR Systems in the 800 MHz
    Frequency Band, *Memorandum Opinion and Order*, 12 FCC Rcd 18,349 at
    ¶ 20 (1997).

[^29]: February 25, 2000 *Order*, 15 FCC Rcd at 4364 ¶ 4.

[^30]: *Id.*

[^31]: *Id.* at 4367 ¶ 13.

[^32]: *See* *WWIZ, Inc.,* 37 FCC 685, 686 (1964), *aff'd sub nom*.
    *Lorain Journal Co. v. FCC*, 351 F.2d 824 (D.C.Cir. 1965), *cert.
    denied*, 383 U.S. 967 (1966); 47 C.F.R. § 1.106(c).

[^33]: *Id*.; Applications of Gaines, Bennett Gilbert*, Memorandum
    Opinion and Order*, 8 FCC Rcd 3986 (Rev. Bd. 1993).