**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
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| VSS ENTERPRISES, LLC             | ** |                              |
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| Licensee of Station KNNF731, Las | *  |                              |
| Vegas, Nevada                    | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: March 27, 2003 Released: April 4, 2003**

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

1.  *Introduction.* On June 8, 2001, VSS Enterprises, LLC (VSS) filed a
    petition for reconsideration of a decision by the Public Safety and
    Private Wireless Division (Division), Licensing and Technical
    Analysis Branch (Branch) denying VSS's request to correct its
    license for trunked Business Station KNNF731. For the reasons stated
    below, we deny the petition for reconsideration in part. In
    addition, on our own motion, we initiate a proceeding to modify
    VSS's license to remove frequency pair 899/938.4125 MHz.

2.  *Background.* In 1997, the FCC consented to and granted an
    assignment/modification application to assign the license for
    Station KNNF731, Las Vegas, Nevada, from Gold Coast Hotel and Casino
    to Showboat Operations, Inc. (Showboat), and to relocate the
    transmitter. While the modified license correctly listed the
    transmitter's new street address, there was a typographical error
    with respect to the geographic coordinates. Specifically, the
    requested latitude was **36**-09-19 North, but the modified license
    listed the latitude as **39**-09-19 North, a difference of
    approximately two hundred miles. The error resulted in the
    frequencies assigned to Station KNNF731 -- namely, 898/937.4500 MHz,
    899/938.4125 MHz, and 899/938.4250 MHz \-- appearing to be
    unassigned in the Las Vegas area. In July 2000, the FCC consented to
    the assignment of the license for Station KNNF731 from Showboat to
    VSS.

3.  On October 4, 2000, the FCC granted ReadyMix, Inc. (ReadyMix) a
    license to operate Station WPRI751, Las Vegas, Nevada, on frequency
    pair 899/938.4125 MHz, at a site approximately six miles from the
    actual site of Station KNNF731. On March 5, 2001, VSS filed an
    informal petition requesting that the FCC correct the latitude
    listed for Station KNNF731, and rescind or modify ReadyMix's license
    for Station WPRI751.[^1] The Branch dismissed the request on May 9,
    2001, on the grounds that Section 1.106 of the Commission's
    Rules[^2] requires that petitions for reconsideration be filed
    within thirty days of the action for which reconsideration is
    sought. VSS, however, had filed its request well beyond thirty days
    after both issuance of the modified license for its Station KNNF731
    and the grant of the license for Station WPRI751 to ReadyMix.[^3] On
    June 8, 2001, VSS filed a petition for reconsideration of the
    Branch's decision dismissing its informal request.[^4]

4.  On September 20, 2001, VSS filed an application to modify its
    license for Station KNNF731 to correct the latitude.[^5] On January
    22, 2002, the Branch granted VSS's modification application. On
    February 8, 2002, the Industrial Telecommunications Association,
    Inc. (ITA) requested rescission of the grant.[^6] ITA argued that
    the grant was improper with respect to frequency pair 899/938.4125
    MHz because VSS's requested location is too close to the authorized
    site of ReadyMix's Station WPRI751.[^7]

5.  On December 2, 2002, the Division sent a letter to ITA, which
    coordinated ReadyMix's application for Station WPRI751, and the
    Personal Communications Industry Association (PCIA), which
    coordinated VSS's application for Station KNNF731.[^8] The Division
    asked the coordinators, pursuant to Sections 90.173, 90.175, and
    90.176(h) of the Commission's Rules,[^9] to determine whether the
    two stations could coexist at their current locations without
    unacceptable interference resulting, and, if not, what
    modification(s) of either or both licenses would minimize or
    eliminate such interference, with the least impact on the operations
    of the licensee(s).[^10] On December 20, 2002, PCIA responded that
    additional time was needed to determine whether the two stations
    could coexist, because VSS had not been fully utilizing frequency
    pair 899/938.4125 MHz.[^11] PCIA also stated that VSS was willing to
    compromise on its authorized technical parameters in order to reach
    an equitable solution to the matter,[^12] but that developing such a
    solution would require "real world testing."[^13] On February 13,
    2003, ITA informed the Division that no testing had taken place, and
    that VSS had commenced full-power full-time operations on frequency
    pair 899/938.4125 MHz, resulting in substantial interference to
    ReadyMix's operations.[^14] ITA reiterated its request that VSS's
    authorization to use frequency pair 899/938.4125 MHz be
    rescinded.[^15]

6.  *Discussion.* VSS argues that the Branch should not have dismissed
    its informal petition as untimely, because the error in the latitude
    of Station KNNF731 was a ministerial error that the Commission can
    correct more than thirty days after final action.[^16] We
    agree.[^17] Had Showboat or VSS brought the error to our attention
    in the three-and-a-half years before ReadyMix received its license
    for Station WPRI751, we almost certainly would have corrected the
    license for Station KNNF731. VSS did not seek relief, however, until
    after the license grant to ReadyMix became a final action. We
    believe that the administrative error doctrine should be invoked to
    bring about equitable solutions to conflicting claims.[^18]
    Therefore, we must examine the equities of the situation.

7.  We find it significant that VSS is authorized to operate on two
    frequency pairs in addition to frequency pair 899/938.4125 MHz,[^19]
    while that is the only frequency pair assigned to ReadyMix's Station
    WPRI751. Therefore, removing the frequency from ReadyMix's license
    would eliminate its authorization altogether, while removing the
    frequency from VSS's license would only reduce its station's
    capacity. In addition, while we agree with VSS that the failure of
    Showboat and VSS to examine the license earlier should not of itself
    defeat its claim,[^20] we note that VSS (and, previously, Showboat)
    had multiple opportunities to seek correction of its license, and
    could have filed a timely opposition to ReadyMix's application or
    petition for reconsideration of the grant of ReadyMix's license. In
    light of the totality of the circumstances, we conclude that it
    would not be appropriate or equitable to now correct VSS's
    coordinates for frequency pair 899/938.4125 MHz and rescind
    ReadyMix's authorization for that frequency pair, as requested by
    VSS.[^21] In addition, it appears that VSS declined to cooperate in
    testing aimed at reaching a compromise between the two authorized
    stations, and instead commenced full-time full-power operations on
    the frequency pair. Based on the totality of the circumstances, we
    conclude that it would be inequitable to rescind the grant of
    ReadyMix's authorization. We therefore deny VSS's request.

8.  Instead, on our own motion, we initiate a proceeding to remove
    frequency pair 899/938.4125 MHz from VSS's authorization. We believe
    that Section 316 of the Communications Act of 1934, as amended,
    provides the appropriate vehicle for resolving this matter.[^22]
    Section 316(a) permits the Commission to modify a station license if
    the action will promote the public interest, convenience, and
    necessity.[^23] In this connection, we note that the proposed
    modification would serve the public interest by preserving the
    existing coverage areas of affected parties and preventing harmful
    interference, while not unduly disrupting VSS's operations, as VSS
    has two additional frequency pairs on which to continue operation.
    Moreover, we conclude that the Branch's January 22, 2002 action
    granting of VSS's application to modify its license to change the
    authorized location for pair 899/938.4125 MHz was improper because
    VSS's requested location is closer to ReadyMix's Station WPRI751
    than our rules permit.[^24]

9.  Thus, we believe that a modification of the VSS license for Station
    KNNF731 to delete 899/938.4125 MHz as an operating frequency is
    appropriate. In accordance with Section 1.87(a) of the Commission\'s
    Rules,[^25] we will not issue a modification order until VSS has
    received notice of our proposed action and has had an opportunity to
    interpose a protest. To protest the modification, VSS must, within
    thirty days of the release of this *Memorandum Opinion and Order,*
    submit a written statement with sufficient evidence to show that the
    modification would not be in the public interest. The protest must
    be filed with the Federal Communications Commission, Office of the
    Secretary, 445 Twelfth Street, S.W., Room TW-A325, Washington, D.C.
    20554.[^26] If no protest is filed, VSS will have waived its right
    to protest the modification and will be deemed to have consented to
    the modification.[^27]

10. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), and
    Section 1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the
    petition for reconsideration filed by VSS Enterprises, LLC, on June
    8, 2001 IS DENIED IN PART with respect to frequency pair
    899/938.4125 MHz.

11. IT IS PROPOSED, pursuant to Sections 4(i) and 316(a) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 316(a),
    and Section 1.87 of the Commission's Rules, 47 C.F.R. § 1.87, that
    the license for Private Land Mobile Radio Service Station KNNF371,
    Las Vegas, Nevada, held by VSS Enterprise, LLC, BE MODIFIED by
    deleting the frequency pair 899/938.4125 MHz.

12. IT IS FURTHER ORDERED that this *Memorandum Opinion and Order* shall
    be sent by certified mail, return receipt requested to James R.
    Vanwoerkom, VSS Enterprises, LLC, P.O. Box 98138, 2800 Fremont St.,
    Las Vegas, NV 89193-8138.

13. 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]: Letter dated March 2, 2001 from Suzanne E. Rogers, Esq., counsel
    for VSS, to Kelly Lawver, Wireless Telecommunications Bureau.

[^2]: 47 C.F.R. § 1.106.

[^3]: *See* Letter dated May 9, 2001 from Mary Shultz, Chief, Licensing
    and Technical Analysis Branch, Public Safety and Private Wireless
    Division, to Suzanne E. Rogers, Esq., counsel for VSS.

[^4]: VSS Petition for Reconsideration (filed June 8, 2001) (VSS
    Petition). In a previous order, we dismissed that portion of the VSS
    Petition that related to frequency pairs 898/937.4500 MHz and
    899/938.4250 MHz. *See* Sunset Bus and Commercial, Inc., *Order*, 18
    FCC Rcd 1915, 1917 ¶ 6 (WTB PSPWD 2003) (*VSS-Sunset Order*). The
    petition remains pending only with respect to frequency pair
    899/938.4125 MHz.

[^5]: FCC File No. 0000598897 (filed Sept. 20, 2001, amended Oct. 4,
    2001 and Jan. 15, 2002).

[^6]: Letter from Ronald G. Franklin, Director, Spectrum Operations and
    Analysis, ITA, to Mary Shultz, Federal Communications Commission
    (received Feb. 8, 2002) (ITA Request).

[^7]: *Id.* at 1-2. ITA also challenged grant of the modification
    application with request to frequency pairs 898/937.4500 MHz,
    899/938.4250 MHz, and 896/935.8875 MHz (which was added to VSS's
    authorization pursuant to the modification application). The issues
    regarding those frequency pairs have been resolved. *See VSS-Sunset
    Order*, 18 FCC Rcd at 1917 ¶ 6; Industrial Telecommunications
    Association, Inc., *Memorandum Opinion and Order*, 18 FCC Rcd 1919,
    1920 ¶ 2 (WTB PSPWD 2003) (*VSS-AAR Order*). Consequently, we
    dismissed the ITA Request, but stated that the issues relating to
    frequency pair 899/938.4125 MHz would be resolved in a separate
    proceeding. *VSS-AAR Order*, 18 FCC Rcd at 1920 n.3; *see also
    VSS-Sunset Order*, 18 FCC Rcd at 1916 n.7.

[^8]: Letter dated Dec. 2, 2002 from D'wana R. Terry, Chief, Public
    Safety and Private Wireless Division, to Industrial
    Telecommunications Association and Personal Communications Industry
    Association (Division Letter).

[^9]: 47 C.F.R. §§ 90.173, 90.175, 90.176(h).

[^10]: Division Letter at 1-2.

[^11]: Letter dated Dec. 20, 2002 from Don Andrew, Personal
    Communications Industry Association, to D'wana R. Terry, Chief,
    Public Safety and Private Wireless Division (PCIA Letter).

[^12]: *Id.* at 1; *see also* VSS Petition at 8 ("VSS will offer
    whatever assistance it reasonably can to mitigate any problems
    caused to ReadyMix").

[^13]: PCIA Letter at 1.

[^14]: Letter dated Feb. 13, 2003 from Ronald G. Franklin, Industrial
    Telecommunications Association, to Peter Waltonen, Public Safety and
    Private Wireless Division.

[^15]: *Id.* at 2.

[^16]: VSS Petition at 5 (citing, *e.g.*, International Broadcasting
    Network, *Memorandum Opinion and Order*, 2 FCC Rcd 2544 (1987)
    (*IBN*)).

[^17]: *See generally* County of San Mateo, California, *Memorandum
    Opinion and Order*, 16 FCC Rcd 16501, 16503 ¶ 8 (2001) (*San
    Mateo*).

[^18]: *See* Charles W. Fortner, *Order*, 16 FCC Rcd 20359, 20361 ¶ 6
    (CWD PRB 2001) (invoking doctrine because "\[w\]e find it
    inequitable to deny Fortner authority to operate on the subject
    three frequencies"); *see also* *IBN*, 2 FCC Rcd at 2546 ¶ 11 ("Such
    rectification is appropriate to assure due process and the basic
    fairness of our administrative procedures to *all* applicants.")
    (emphasis added).

[^19]: *See VSS-Sunset Order*, 18 FCC Rcd at 1917 ¶ 7.

[^20]: VSS Petition at 6 n.5.

[^21]: In addition, it is not clear that the administrative error
    doctrine would properly apply to action with respect to ReadyMix's
    license, as opposed to VSS's license. The Commission has stated,

    > This authority to revisit final actions is limited. It extends
    > only to the correction of clerical or administrative errors that
    > underlie or occur in the process of taking an action, such as a
    > mathematical miscalculation, or a license that omits or misstates
    > a frequency, or a document that omits an intended party or
    > provision. The taking of an erroneous action, itself, is not
    > generally a ministerial error that can be corrected after the
    > 30-day period has elapsed under 47 C.F.R. § 1.113(a).

    *San Mateo*, 16 FCC Rcd at 16504 ¶ 10 (footnotes omitted). The
    license grant to ReadyMix can easily be characterized as "\[t\]he
    taking of an erroneous action," rather than a "clerical or
    administrative error\[\] that underlie\[s\] or occur\[s\] in the
    process of taking an action."

[^22]: 47 U.S.C. § 316.

[^23]: 47 U.S.C. § 316(a). Section 316(a) requires that we notify the
    affected station(s) of the proposed modification(s) and the public
    interest reasons for the action, and afford at least thirty days to
    respond.

[^24]: *See* 47 C.F.R. § 90.187.

[^25]: 47 C.F.R § 1.87(a).

[^26]: The address for FCC locations should be used only for documents
    filed by United States Postal Service first-class mail, Express
    Mail, and Priority Mail. Hand-delivered or messenger-delivered
    documents for the Commission's Secretary are accepted only at 236
    Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002. Other
    messenger-delivered documents, including documents sent by overnight
    mail (other than United States Postal Service Express Mail or
    Priority Mail) should be addressed for delivery to 9300 East Hampton
    Drive, Capitol Heights, MD 20743. *See* FCC Announces a New Filing
    Location for Paper Documents and a New Fax Number for General
    Correspondence, *Public Notice*, 16 FCC Rcd 22165 (2001).

[^27]: 47 C.F.R. § 1.87(g), (h).