**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
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| CUMULOUS COMMUNICATIONS          | ** |                              |
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| CORPORATION                      | *  |                              |
|                                  | *) |                              |
| Request for Initiation of        | ** |                              |
| Revocation Proceeding            |    |                              |
|                                  | *  |                              |
| Regarding Industrial/Land        | *) |                              |
| Transportation Station           | ** |                              |
|                                  |    |                              |
| WPLU580, Mount Veeder,           | *  |                              |
| California                       | *) |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: June 6, 2003; Released: June 9, 2003**

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

1.  *Introduction.* On November 20, 2001, Vino Farms (Vino) filed a
    request that the Commission initiate a revocation proceeding
    regarding Industrial/Land Transportation Station WPLU580, Mount
    Veeder, California.[^1] Vino argues that the license for Station
    WPLU580 automatically cancelled pursuant to Section 90.157 of the
    Commission's Rules[^2] for failure to operate during a one-year
    period. For the reasons set forth below, the request is denied.

2.  *Background.* Vino is the licensee of Industrial/Land Transportation
    Station WPBD572, Mount Veeder, California. Stations WPLU580 and
    WPBD572 operate at the same location and on the same frequency pair
    (813/858.3625 MHz). Station WPLU580 was initially authorized on
    February 20, 1998, and Station WPBD572 was initially authorized on
    July 1, 1998. On April 19, 2001, the Commission consented to the
    assignment of the license for Station WPLU580 from MG Paving to
    Cumulous Communications Corporation (Cumulous). The assignment was
    consummated on May 7, 2001.[^3]

3.  On November 20, 2001, Vino filed the instant request. Vino argues
    that neither MG Paving nor Cumulous operated the station for a
    period of over one year, from February 20, 2000 until November 19,
    2001, and, thus, that the license automatically cancelled pursuant
    to Section 90.157 of the Commission's Rules. It states that it has
    routinely monitored frequency pair 813/858.3625 MHz, and has never
    heard any transmissions from Station WPLU580.[^4] It also states
    that it has seen no physical indication that Station WPLU580 is
    located at the communications site on Mount Veeder.[^5]

4.  On December 5, 2001, Cumulous filed an opposition to Vino's
    request.[^6] Cumulous asserts, based on the construction
    certification that MG Paving submitted to the Commission on November
    16, 1998, that MG Paving initiated operations on frequency pair
    813/858.3625 MHz on April 12, 1998.[^7] Cumulous concedes, however,
    that the station was not operational when it acquired the
    license.[^8] It states that it constructed Station WPLU580 (by
    having frequency pair 813/858.3625 MHz programmed into another
    co-located licensee's repeater) before the Commission consented to
    the assignment of the license, but did not commence operations until
    after the license was assigned.[^9]

5.  On November 14, 2002 and January 27, 2003, the Wireless
    Telecommunications Bureau, Public Safety and Private Wireless
    Division (Division) asked MG Paving to provide information regarding
    the operational status of Station WPLU580 during the time the
    station was licensed to MG Paving.[^10] The Division's letters were
    returned as undeliverable.

6.  *Discussion.* We have reviewed the record in this proceeding and
    find that the information before us is not dispositive on either
    front. We agree with Cumulous[^11] that sporadic monitoring without
    monitoring logs is insufficient to prove that a station has
    permanently discontinued operation.[^12] For example, we note that
    Vino did not submit monitoring studies substantiating claims of
    inoperation.[^13] Nor does Vino explain how often it uses its mobile
    units. On the other hand, that MG Paving stated in its construction
    certification that it commenced operation on April 12, 1998 does not
    demonstrate that the station remained in operation with no lapse of
    at least twelve months. Indeed, Cumulous' concession that the
    station was inoperative prior to assignment of the license shows
    that there was a lapse of some length. We, however, are unable to
    determine definitely the duration of such period. Further, our
    attempts to contact MG Paving directly to obtain additional
    information regarding this issue were unsuccessful.

7.  Given the inconclusiveness of the record before us, we believe that
    the most appropriate action is to deny Vino's request. While the few
    facts before us lend support to Vino's arguments, we conclude that
    they fail to provide a sufficient basis upon which to reach a
    determination that the license, which MG Paving assigned over two
    years ago, is no longer valid. We believe that denying the request
    is more equitable than canceling the license based on so sparse a
    record.

8.  *Conclusion*. Based on the information available to us, we find that
    we have insufficient evidence on which to conclude that Station
    WPLU580 discontinued operation for at least twelve months.
    Accordingly, we deny Vino's request.

9.  IT IS ORDERED, pursuant to Section 4(i) of the Communications Act of
    1934, as amended, 47 U.S.C. § 154(i), and Section 1.41 of the
    Commission's Rules, 47 C.F.R. § 1.41, that the request for
    initiation of revocation proceeding filed November 20, 2001 by Vino
    Farms IS DENIED.

10. 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 and
    0.331.

    FEDERAL COMMUNICATIONS COMMISSION

    D'wana R. Terry

    Chief, Public Safety and Private Wireless Division

    Wireless Telecommunications Bureau

[^1]: Request for Initiation of Revocation Proceeding (filed Nov. 20,
    2001) (Request).

[^2]: 47 C.F.R. § 90.157.

[^3]: On February 28, 2002, subsequent to the filing of the Request, the
    Commission consented to the assignment of the license from Cumulous
    to Nextel of California, Inc.

[^4]: Request at 2 and Affidavit of Jim Ledbetter.

[^5]: Affidavit of Jim Ledbetter.

[^6]: Cumulous Opposition to Request for Initiation of Revocation
    Proceeding (filed Dec. 5, 2001) (Opposition).

[^7]: *Id.* at 4.

[^8]: *Id.*

[^9]: *Id.* and Declaration of Damon Silva.

[^10]: Letter dated Nov. 14, 2002 from John J. Borkowski, Assistant
    Chief, Public Safety and Private Wireless Division, to Wayne
    Gilstrap, MG Paving; Letter dated Jan. 27, 2003 from John J.
    Borkowski, Assistant Chief, Public Safety and Private Wireless
    Division, to Wayne Gilstrap, MG Paving.

[^11]: Opposition at 3.

[^12]: *See*, *e.g.*, Cellular Design Corporation, *Memorandum Opinion
    and Order*, 14 FCC Rcd 13059, 13064 ¶ 12 (1999); Mayer
    Reprographics, Inc., *Order on Reconsideration*, DA 03-1879, ¶ 7
    (WTB PSPWD rel. June 4, 2003); Brookfield Development, Inc.,
    *Order*, DA 03-1756, ¶ 7 (WTB PSPWD rel. May 23, 2003), and cases
    cited therein.

[^13]: *See*, *e.g.*, S&L Teen Hospital Shuttle, *Memorandum Opinion and
    Order*, 16 FCC Rcd 8153, 8157 ¶ 8 (2001).