Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| San Mateo County Transit         | ) |                              |
| District                         | * |                              |
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| Request for Reinstatement of     |   |                              |
| License for Private Land Mobile  | * |                              |
| Station KYC941                   | * |                              |
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| Petition to Deny                 | * |                              |
| Applications[^1] A051076,        | * |                              |
| A051888, A052212, A052524, and   |   |                              |
| A052342[^2] of John Gronemeier   | * |                              |
| d/b/a Bay Communications         | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** December 19, 2000 **Released:** December 21, 2000

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

# introduction

1.  We have before us two petitions, a Petition for Reinstatement[^3] of
    its authorization to operate Station KYC941 and a petition to
    deny[^4] an application submitted by Mr. John Gronemeier, d/b/a/ Bay
    Communications, to license frequency pairs 483/486.1875,
    483/486.2375, 483/486.2625, and 483/486.2875 MHz. On November 12,
    1999, we cancelled Samtrans' authorization to operate Station
    KYC941, on the following frequency pairs: 483/486.1875,
    483/486.2375, 483/486.2625, and 483/486.2875 MHz. This cancellation
    was unbeknownst to Samtrans for over four months, until March 22,
    2000.[^5] Meanwhile, between February 22, 2000 and March 16, 2000,
    Mr. Gronemeier submitted five applications to license the same
    frequency pairs that were authorized to Samtrans under Station
    KYC941. In light of the cancellation of Samtrans' license for
    Station KYC941, Samtrans requested a special temporary authorization
    (STA) to continue operating the facility. Samtrans' STA was renewed
    on September 24, 2000[^6] and expires on March 24, 2001. For the
    reasons set forth herein, we grant both petitions.

# Background

2.  Samtrans is a public transportation operator that provides bus
    service throughout San Mateo County, California to over 60,000 daily
    passengers, including school children.[^7] Samtrans was licensed to
    operate Station KYC941 in 1980, and the station was constructed and
    fully loaded a short time thereafter.[^8] Samtrans uses Station
    KYC941 for the radio communications for its fleet of over 400 buses
    and related vehicles.[^9] On November 26, 1997, Samtrans filed an
    application to modify its license to relocate one of its base
    stations, site 3.[^10] Then, six months later, on May 19, 1998, we
    renewed Samtrans' license to operate Station KYC941 until June 8,
    2003.[^11]

3.  Because Samtrans modified its license on November 26, 1997, it was
    required under Section 90.167 of the Commission's Rules to implement
    such modification by November 26, 1998, one year from the date it
    was authorized to modify its license. The period of time between the
    date of grant of an authorization and the date of required
    commencement of service or operations is the construction
    period.[^12] To determine whether a licensee is complying with the
    construction requirements, the Branch routinely sends out
    computer-generated construction notification form letters,
    specifically Forms 800A, 800B, and 800H. Form 800A is sent near the
    end of the construction period and requests the licensee to confirm
    that the construction has been completed.[^13] In the event that the
    licensee does not respond after two such notices (Forms 800A and
    800B), a final computer-generated notice (Form 800H) is mailed
    indicating that the license will be terminated if a response is not
    received within a stated time.[^14]

4.  On November 26, 1998, the Licensing and Technical Analysis Branch
    (Branch) sent Form 800A to Samtrans. When Samtrans did not respond,
    it sent Form 800B. Again, Samtrans did not respond. Finally, on June
    16, 1999, the Branch sent Form 800H indicating that the Samtrans
    authorization to operate Station KYC941 would be cancelled; in fact,
    such action was taken, on November 12, 1999.[^15] Samtrans maintains
    that it did not receive any of these letters and did not discover
    that its license had been cancelled until March 22, 2000.[^16]
    According to Samtrans, when it discovered that its license had been
    cancelled, it immediately requested an STA to continue to operate
    Station KYC941, which was granted on March 24, 2000.[^17]

5.  Between February 22, 2000 and March 16, 2000, John Gronemeier, d/b/a
    Bay Communications submitted five applications seeking to license
    frequency pairs, 483/486.1875, 483/486.2375, 483/486.2625, and
    483/486.2875, the same frequency pairs that had been authorized to
    Samtrans under Station KYC941.[^18] On March 15, 2000, Mr.
    Gronemeier sent a letter to the Branch indicating that a large
    state-wide utility had asked him to supply facilities to accommodate
    approximately 2800 units that were being displaced from the lower
    UHF channels.[^19] On the same day, March 15, 2000, the Branch
    returned Mr. Gronemeier's applications, indicating that Mr.
    Gronemeier was required to show that "an assigned frequency pair is
    at full capacity before it may be assigned a second or additional
    frequency pair."[^20] The Branch further requested that Mr.
    Gronemeier provide frequency justifications in full detail as
    required by Section 90.313 of the Commission's Rules, 47 CFR §
    90.313.[^21] On April 10, 2000, Mr. Gronemeier responded to the
    Branch's March 15, 2000 letter.[^22]

6.  On March 31, 2000, Samtrans simultaneously filed two pleadings, a
    Petition for Reinstatement pursuant to Section 1.41 of the
    Commission's Rules, and a Petition to Deny, pursuant to Section
    1.939 of the Commission's Rules. In its Petition for Reinstatement,
    Samtrans seeks to have its authorization to operate Station KYC941
    reinstated.[^23] In its Petition to Deny, Samtrans requests that we
    deny Mr. Gronemeier's five applications seeking the same frequency
    pairs as were authorized to Samtrans under Station KYC941.[^24]

# Contentions of the Parties

7.  *Petition for Reinstatement*. In its Petition for Reinstatement,
    Samtrans maintains that Station KYC941 was fully constructed within
    the required time period.[^25] To support this contention, Samtrans
    states that Samtrans' license to operate Station KYC941 would not
    have been renewed on May 19, 1998, less than one year after it
    applied to modify its license on November 26, 1997, because a
    license is renewed only if a station is fully constructed.[^26]
    Samtrans argues that the May 19, 1998 renewal of its license,
    therefore, is prima facie evidence that Station KYC941 was fully
    constructed.[^27] To further support its position, Samtrans presents
    a statement from Mr. Frank Burton, Samtrans' Communication Systems
    Administrator, stating that site 3 was relocated in 1997, well
    within the required construction period.[^28] Samtrans further
    maintains that it never received any of the construction notices,
    Forms 800A, 800B, and 800H.[^29] To support this allegation,
    Samtrans submits a statement from Mr. Frank Burton[^30] and a
    statement from Mr. Steven Green,[^31] the Radio Systems Engineer for
    the County of San Mateo, California, indicating that neither one of
    them received the construction notices.

8.  Samtrans argues that the cancellation of its license to operate
    Station KYC941 is a "grossly inappropriate punishment where the
    licensee has in fact constructed and loaded its system, but simply
    fails to confirm" this fact to the Commission, especially when the
    licensee has no record of receiving correspondence from the
    Commission.[^32] Samtrans further argues that reinstating its
    license is consistent with the public interest, convenience, and
    necessity.[^33] In this regard, Samtrans notes that this station
    supports Samtrans' radio communications for its fleet of over 400
    transit buses and related vehicles.[^34] The bus system carries over
    60,000 passengers every day, including school children.[^35] The bus
    drivers must be able to call for immediate assistance in case of
    criminal activity, medical emergencies, accidents, or other
    events.[^36] Lastly, Samtrans argues that no other licensee will be
    harmed by reinstating its license because the frequencies in
    question have not yet been licensed to anyone else.[^37]

9.  *Petition to Deny*. In its Petition to Deny, Samtrans argues that we
    should deny Mr. Gronemeier's applications to license the same
    frequency pairs as were authorized to Samtrans under Station
    KYC941.[^38] In addition to the same arguments that it makes in its
    Petition for Reinstatement, Samtrans argues that Mr. Gronemeier's
    applications should be denied because those applications and
    Samtrans Petition for Reinstatement are mutually exclusive.[^39]
    Samtrans states that because its license was erroneously cancelled,
    its frequencies should not have been made available to any other
    applicant.[^40] Samtrans alleges that the Commission's policy of
    sending construction notices to licensees that have recently renewed
    their licenses may have been the reason for the cancellation.[^41]
    Samtrans contends that Mr. Gronemeier's applications are defective
    and asks us to take judicial notice of Mr. Gronemeier's history of
    seizing frequencies that become available due to inadvertent
    cancellation.[^42] Samtrans further alleges that Mr. Gronemeier's
    April 10, 2000 letter responding to the Branch's inquiry was
    non-responsive and his applications should therefore be dismissed
    because the 60-day time period in which to make an appropriate
    response has expired.[^43]

# discussion

10. Based on our review of the pleadings in this matter, we believe
    Samtrans' license should be reinstated. With respect to the sites
    other than Site 3 authorized under the license for Station
    KYC941,[^44] the May 19, 1998 grant of the renewal application for
    Station KYC941 implicitly concluded that the station was validly
    constructed and operating. At most, the proper remedy for failing to
    respond to the construction letters would have been to delete site 3
    from the license, not Samtrans' entire license to operate Station
    KYC941.

11. With regard to the status of the authorization for site 3, we note,
    as an initial matter, that the Commission has stated previously:

> We agree with FCBA and other commenters that the purpose of our
> construction notification procedure should be to verify whether
> licensees have in fact met their construction and coverage
> obligations, not to terminate licenses for legitimately operating
> facilities based on a failure to notify by the licensee that could be
> the result of a mailing error. This policy is reflected in the fact
> that our proposed rule provides for automatic license termination not
> based on whether the Commission has received confirmation of
> construction, but based on actual failure by the licensee to meet its
> construction or coverage deadline. Nevertheless, if a licensee fails
> to confirm timely construction, we believe it is reasonable to
> initiate the license termination process as proposed.[^45]

In this case, a lack of a response to the 800A, 800B, and 800H letters
regarding Station KYC941 were reasonably construed as evidence that the
facility was not constructed. While we note that Samtrans contends that
two of its representatives did not receive the correspondence, our
records indicate that the letters were sent to the address of record. As
a result, we remind Samtrans that under the Commission's Rules, Samtrans
has the duty to furnish the Commission with a valid mailing address and
that it must make "any arrangements which may be necessary to assure
that Commission documents or correspondence delivered to \[the address
of record\] will promptly reach him or some person authorized to act in
his behalf."[^46] Samtrans has represented that site 3 was relocated in
1997, prior to the November 26, 1998 deadline for modifying the
station.[^47] The record does not provide any basis for questioning that
representation. Moreover, we note that Station KYC941 authorizes
Samtrans' only radio communications for its fleet of over 400 buses and
related vehicles. Under the totality of the circumstances presented, we
believe it is appropriate to reinstate Samtrans' license, including the
authorization for site 3.

12. Given that we are reinstating Samtrans' license to operate Station
    KYC941, the frequencies are not available to another entity. Thus,
    Mr. Gronemeier's applications should be dismissed.

# ordering clauses

13. For the reasons discussed herein, 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 1.41 of the Commission's Rules, 47
    C.F.R. §§ 1.41, the Petition for Reinstatement, filed on April 3,
    2000, and the Petition to Deny, filed on March 31, 2000, by the San
    Mateo County Transit District are GRANTED.

14. IT IS FURTHER ORDERED that the Licensing and Technical Analysis
    Branch SHALL REINSTATE Samtrans' license to operate KYC941,
    consistent with this Memorandum Opinion and Order.

15. IT IS FURTHER ORDERED that pursuant to Sections 4(i) and 309(d) of
    the Communications Act of 1934, as amended, 47 U.S.C. § 154(i),
    309(d), and Section 1.939 of the Commission's Rules, 47 C.F.R.
    1.939, that the Licensing and Technical Analysis Branch SHALL
    DISMISS Mr. Gronemeier's applications File Nos. A051076, A051888,
    A052212, A052524, and A05242, consistent with this Memorandum
    Opinion and Order.

16. 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]: These applications were consolidated into File No. A051076.

[^2]: In File Nos. A052342 and A052524, Mr. Gronemeier sought to license
    the same frequency pair, 483/486.2875 MHz.

[^3]: Petition for Reinstatement of License filed by San Mateo County
    Transit District (Samtrans) on April 3, 2000 (*Petition for
    Reinstatement*). Supplement to its Petition for Reinstatement filed
    by Samtrans on April 24, 2000 with attached letter from Mr. Frank
    Burton, dated April 21, 2000 (*April 21 Letter*). Supplement to its
    Petition for Reinstatement filed by Samtrans on May 1, 2000 with
    attached letter from Mr. Frank Burton, dated April 28, 2000 (*April
    28 Letter*).

[^4]: Petition to Deny filed by Samtrans on March 31, 2000 (*Petition to
    Deny*). Supplement to the Petition to Deny filed by Samtrans on July
    10, 2000 (*Supplement to Petition to Deny*).

[^5]: Petition for Reinstatement at 1.

[^6]: *Petition for Reinstatement* at 1.

[^7]: *Petition for Reinstatement* at 4.

[^8]: *April 21 Letter* at 1.

[^9]: *Petition for Reinstatement* at 4.

[^10]: Application File No. 9706D084877. Site 3 is also known as site C,
    and was relocated to coordinates 37-41-32/122-26-50. *See*, Letter
    from Frank Burton, Administrator, Bus Communications Systems,
    Samtrans, to Mary M. Shultz, Licensing and Technical Analysis
    Branch, Federal Communications Commission (April 28, 2000).

[^11]: Application File No. 9805R304314.

[^12]: 47 C.F.R. § 1.946 (1999).

[^13]: In the Matter of Implementation of Sections 3(n) and 332 of the
    Communications Act, Regulatory Treatment of Mobile Services,
    Amendment of Part 90 of the Commission's Rules to Facilitate Future
    Development of SMR Systems in the 800 MHz Frequency Band, Amendment
    of Parts 2 and 90 of the Commission's Rules to Provide for the Use
    of 200 Channels Outside the Designated Filing Areas in the 896-901
    MHz and 935-940 MHz Band Allotted to the Specialized Mobile Radio
    Pool, *Third Report and Order*, GN Docket No. 93-252, PR Docket No.
    93-144, PR Docket No. 89-553, 9 FCC Rcd 7988, 8120 ¶(1994).

[^14]: *Id*.

[^15]: *Petition for Reinstatement* at 1.

[^16]: *Petition for Reinstatement* at 1.

[^17]: *Petition for Reinstatement* at note 1. Samtrans' STA was renewed
    on September 24, 2000 and currently expires on March 24, 2001.

[^18]: File Nos. A051076, A051888, A052212, A052524, and A052342. In
    File Nos. A052342 and A052524, Mr. Gronemeier sought to license the
    same frequency pair, 483/486.2875 MHz.

[^19]: Letter from Mr. John Gronemeier to Licensing and Technical
    Analysis Branch, Public Safety and Private Wireless Division,
    Wireless Telecommunications Bureau (March 15, 2000) (*March 15
    letter*) at 1.

[^20]: Return Notice for the Private Land Mobile Radio Services from the
    Licensing and Technical Analysis Branch, Public Safety and Private
    Wireless Division, Wireless Telecommunications Bureau to Mr. John
    Gronemeier for File Nos. A051076, A051888, A052212, and A052524
    (March 15, 2000) (*Notice Letters*).

[^21]: *Id*.

[^22]: Letter from Mr. John Gronemeier to Licensing and Technical
    Analysis Branch, Public Safety and Private Wireless Division,
    Wireless Telecommunications Bureau (April 10, 2000) (*April 10
    letter*) at 1.

[^23]: *Petition for Reinstatement* at 1.

[^24]: *Petition to Deny* at 1.

[^25]: *Petition for Reinstatement* at 1.

[^26]: *Petition for Reinstatement* at 3.

[^27]: *Id*.

[^28]: *Petition for Reinstatement,* Exhibit B, Statement of Mr. Frank
    Burton at 1.

[^29]: *Petition for Reinstatement* at 2.

[^30]: *Petition for Reinstatement*, Exhibit B, Statement of Mr. Frank
    Burton at 1.

[^31]: *Petition for Reinstatement*, Exhibit B, Statement of Mr. Steven
    Green at 1.

[^32]: *Petition for Reinstatement* at 3.

[^33]: *Petition for Reinstatement* at 4.

[^34]: *Id*.

[^35]: *Id*.

[^36]: *Id*.

[^37]: *Id*.

[^38]: *Petition to Deny* at 1-2.

[^39]: *Petition to Deny* at 2.

[^40]: *Petition to Deny* at 3.

[^41]: *Id*. The Commission does not, in fact, routinely send
    construction notices to licensees who are merely renewing their
    licenses. In this case, construction notices were sent to Samtrans,
    not because it renewed its license on May 19, 1998, but because it
    modified its license on November 27, 1997.

[^42]: *Petition to Deny* at 3-4.

[^43]: *Supplement to Petition to Deny* at 3.

[^44]: Samtrans argues that Samtrans' renewal of its license on May 19,
    1998, is prima facie evidence that the construction was completed
    because the Commission does not renew a license unless the station
    is fully constructed. The grant of the renewal application did not
    constitute a finding that Site 3 had been modified because the time
    for Samtrans to complete the modification had not yet run.

[^45]: Biennial Regulatory Review -- Universal Licensing System, *Report
    and Order in WT Docket 98-20*, 13 FCC Rcd 21027, 21076 ¶ 106 (1998).

[^46]: 47 C.F.R. §1.5.

[^47]: *See* Letter Dated April 28, 2000 from Mr. Frank Burton,
    Administrator, Bus Communications Systems, to Licensing and
    Technical Analysis Branch, Public Safety and Private Wireless
    Division, Wireless Telecommunications Bureau.