# Before the

# Federal Communications Commission

# Washington, D.C. 20554

In re Application of )

)

SCHUYLKILL MOBILE FONE, INC. ) File No. 20141-CD-P/L-94

)

For Authority to Operate a New Two-Way )

Mobile Facility on Frequency 454.025 MHz )

Under Call Sign KNLM621 at Selinsgrove, )

Pennsylvania )

# ORDER ON RECONSIDERATION

**Adopted: November 24, 1999 Released: November 24, 1999**

By the Chief, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau:

1.  On March 27, 1995, Schuylkill Mobile Fone, Inc. (SMFI) filed a
    Petition for Reconsideration (Petition)[^1] of the decision to
    dismiss the captioned application by the Narrowband Commercial Radio
    Branch (Branch). For the reasons discussed below, we deny the
    Petition.

2.  SMFI filed the captioned application on October 8, 1993, requesting
    authority to operate a new, two-way mobile radio facility on
    frequency 454.025 MHz at Selinsgrove, Pennsylvania. On February 25,
    1994, SMFI amended its application, providing traffic load data
    pursuant to Section 22.16 of the Commission's rules.[^2] In August
    1994, the Commission amended Part 22 of its rules.[^3] In amending
    these rules, the Commission adopted Section 22.569 and eliminated
    Section 22.16 of the Commission's rules. Under Section 22.569, which
    became effective on January 3, 1995, carriers are limited to
    applying for no more than two channels in an area per application
    cycle.[^4] By letter dated February 28, 1995, the Branch notified
    SMFI that its application requested a transmitter location in the
    same area of two other pending channels. The Branch therefore deemed
    the application defective and dismissed it without prejudice under
    Section 22.128(d)(2) of the Commission's rules.

3.  In its Petition, SMFI argues that the Branch's dismissal of its
    application was erroneous because Section 22.569 became effective
    after the filing of the captioned application. Specifically, SMFI
    states that applying Section 22.569 to its application constituted
    retroactive rulemaking. We disagree. As we stated in our *Part 22
    Rewrite Order*, the courts have long recognized that the Commission
    may apply new rules to pending applications.[^5] Indeed, we
    concluded that "until action on an application is final, processing
    has not been completed, and rule changes applied to that application
    are not retroactive."[^6] Because action on SMFI's application was
    not final, the Branch had authority to apply Section 22.569 to the
    pending application. We therefore deny the Petition.

4.  Accordingly, IT IS ORDERED that pursuant to sections 4(i) and 405 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and
    405, and sections 0.331, 1.106, and 22.128 of the Commission's
    Rules, 47 C.F.R. §§ 0.331, 1.106, 22.128, the Petition for
    Reconsideration filed by Schuylkill Mobile Fone, Inc. on March 27,
    1995 is DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Paul D'Ari
>
> Chief, Policy and Rules Branch
>
> Commercial Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration of Schuylkill Mobile Fone, Inc. filed
    March 27, 1995.

[^2]: 47 C.F.R. § 22.16 (1994). Section 22.16 allowed carriers to apply
    for up to a maximum of four additional channels on an existing
    two-way system.

[^3]: In the Matter of Revision of Part 22 of the Commission\'s Rules
    Governing the Public Mobile Services, Third Report and Order, 9 FCC
    Rcd 6513 (1994) (*Part 22 Rewrite Order*).

[^4]: 47 C.F.R. § 22.569.

[^5]: *Part 22 Rewrite Order*, 9 FCC Rcd 6513, § 100 (citing *United
    States v. Storer Broadcasting Co.*, 351 U.S. 192 (1956); *Hispanic
    Information and Telecommunications Network v. FCC*, 865 F.2d 1289
    (D.C.Cir.1989)).

[^6]: *Id.*