Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of Applications of | *  | File Nos. A004251 and        |
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| County of San Mateo, California  | ** |                              |
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| To Modify Public Safety Land     | *  |                              |
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| Mobile Radio Station WIG278      | ** |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: August 24, 2001 Released: September 11, 2001**

By the Commission:

# introduction

1.  Before us is a Petition for Reconsideration (Petition) filed by
    Champion Communications Services, Inc. (Champion) on February 7,
    2001.[^1] Champion seeks partial reconsideration of the January 8,
    2001 *Order on Review and Reconsideration* which addressed an
    Application for Review filed by the County of San Mateo, California
    (San Mateo or the County).[^2] Specifically, Champion seeks
    reconsideration of the Commission's decision to reinstate and grant
    San Mateo's Petition for Reconsideration as it pertains to frequency
    pair 489/492.4875 MHz in the San Francisco area for Call Sign
    WIG278.[^3] For the reasons provided herein, we deny Champion's
    Petition.

# background

2.  As an initial matter, we think it is important to describe licensing
    processing to the extent it is relevant here. Pursuant to the
    Commission's rules, certain applications must be accompanied by
    frequency coordination.[^4] To facilitate compliance with this rule,
    the applicant must provide the necessary technical data to the
    relevant certified frequency coordinator. The frequency coordinator
    then files the application with the Commission on behalf of the
    applicant. When an application is pending with the Commission,
    frequency coordinators should not file another application seeking
    the same frequency in the same geographic area.[^5] We generally
    rely on the frequency coordinator's recommendation when reviewing an
    application, unless a third party submits evidence that the
    coordination was improper. Once an application has been reviewed and
    found in compliance with the Commission's rules, the application is
    granted.

3.  On December 26, 1996, Champion filed an application[^6] for a new
    license to operate on frequency pair 489/492.4875 MHz, a 470-512 MHz
    band channel in the San Francisco/Oakland area.[^7] On April 18,
    1997, San Mateo filed an application to modify its license for Call
    Sign WIG278 to add frequency pair 489/492.4875 MHz at two sites also
    in the San Francisco area.[^8] This modification application was
    granted on May 21, 1997.[^9] On September 16, 1997, San Mateo filed
    a second modification application to add the same frequency pair to
    a third site.[^10] This modification application was granted on
    November 6, 1997.[^11]

4.  On April 24, 1998, more than five months after it granted the
    County's final modification application, the Branch set aside its
    actions granting San Mateo's three modification applications.[^12]
    The Branch stated that it had been notified by the Industrial
    Telecommunications Association (ITA) on November 5, 1997, that the
    Branch had processed San Mateo's first modification application
    ahead of the application for the same frequency pair filed on
    December 26, 1996, by Champion, in violation of the Commission's
    rules and procedures.[^13] The Branch received such notification
    more than five months after it granted the first modification
    application, and Champion had not petitioned for reconsideration of
    the Branch's grants of the County's modification applications. On
    May 26, 1998, the County timely filed a petition for reconsideration
    of the Branch's April 24, 1998 action.

5.  While San Mateo's reconsideration petition was pending, it filed an
    application and waiver request pursuant to Section 337 of the
    Communications Act[^14] to add to its system thirteen frequency
    pairs from the 470-512 MHz band.[^15] The Wireless
    Telecommunications Bureau (Bureau) granted this waiver request and
    application, and, because it believed that this grant obviated San
    Mateo's need for other 470-512 MHz band channels, dismissed San
    Mateo's petition as moot.[^16] On December 13, 1999, San Mateo filed
    an application for review seeking partial review of the Bureau's
    *Memorandum Opinion and Order* dismissing its petition, and seeking
    review of the Branch's decision to rescind its grant of the
    modification applications.[^17] On January 8, 2001, the Commission
    determined that there was no necessary relationship between the
    frequencies sought in San Mateo's Section 337 waiver request and the
    frequencies at issue in the San Mateo petition, so it reinstated the
    dismissed reconsideration petition.[^18] The Commission then granted
    the petition, thereby reversing the Branch's set-aside of the grants
    of San Mateo's modification applications. The Commission found that
    the Branch's action was invalid because Section 1.113 of the
    Commission's Rules[^19] provides that action taken pursuant to
    delegated authority may be set aside *sua sponte* only within thirty
    days.[^20]

6.  On February 7, 2001, Champion filed the instant Petition for
    Reconsideration of the Commission's January 8, 2001, decision. San
    Mateo filed an Opposition to the Petition for Reconsideration,[^21]
    and Champion filed a Reply to the Opposition to Petition for
    Reconsideration.[^22]

# discussion

7.  Section 1.113(a) of the Commission's rules provides, "Within 30 days
    after public notice has been given of any action taken pursuant to
    delegated authority, the person, panel or board taking the action
    may modify or set it aside on its own motion."[^23] Champion argues
    that notwithstanding Section 1.113, the Branch was permitted to
    reverse itself even after the passage of thirty days to remedy an
    inadvertent error.[^24] Champion characterizes the grants of San
    Mateo's modification applications as such errors, and contends that
    this exception applies here.[^25] San Mateo argues in response that
    this case does not involve a ministerial or clerical error that
    would allow rescission after more than thirty days.[^26] We have
    reviewed the cases cited by the parties, and other authority, and
    conclude that the ministerial error doctrine does not extend to the
    present matter. Consequently, we deny Champion's Petition and affirm
    the Commission's decision granting San Mateo's petition for
    reconsideration of the Branch's set-aside of the grant of its
    modification applications.

8.  As the Commission recently stated, "Administrative agencies have the
    authority to correct inadvertent, ministerial errors."[^27] 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,[^28] or a license that omits[^29] or misstates[^30]
    a frequency, or a document that omits an intended party[^31] or
    provision.[^32] 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).

9.  The cases discussed by the parties illustrate this distinction. In
    *Theodore E. Sousa*, the Review Board held that a radio station
    license may not be revoked solely upon the basis of licensee
    misconduct occurring entirely within a previous license term where
    the misconduct was officially known to the Commission prior to a
    grant of license renewal and the 30-day period for setting aside the
    grant had elapsed under 47 C.F.R. § 1.113(a).[^33] In *Bell
    Atlantic*, the Commercial Wireless Division intended to dismiss all
    pending mutually exclusive paging applications pursuant to a
    Commission decision to resolve mutually exclusive applications by
    competitive bidding.[^34] The application with which a Bell Atlantic
    application was mutually exclusive was dismissed, but Bell
    Atlantic's application was inadvertently omitted from the dismissal
    order, and the application was subsequently granted because it no
    longer appeared to be mutually exclusive.[^35] The Bureau's
    Commercial Wireless Division, citing the ministerial error doctrine,
    concluded that it had the authority to correct the ministerial error
    of omitting Bell Atlantic from the dismissal public notice, and
    therefore set aside the license grant.[^36]

10. As noted above, the decision to grant a license application
    generally is a discretionary, rather than ministerial, action. We
    conclude that the erroneous grant of an application can be corrected
    *sua sponte* more than thirty days after it becomes final only where
    the grant was premised upon or contains a ministerial error of the
    type discussed above.[^37] We agree with San Mateo that no such
    "ministerial" or "clerical" error occurred in this matter.[^38]
    Indeed, the Court of Appeals for the D.C. Circuit, in a case
    involving another administrative agency, stated that granting an
    application due to the "failure to engage in a comparative
    evaluation of competing applications," as occurred here, is not the
    type of error that may be corrected after it becomes final.[^39]

# conclusion

11. For the foregoing reasons, we conclude that the error alleged by
    Champion was not a ministerial or clerical error that permits
    deviation from the doctrine of administrative finality.[^40]
    Consequently, the Branch's action setting aside the grant of San
    Mateo's modification applications was contrary to Section 1.113(a)
    of our Rules. Therefore, we deny Champion's Petition and affirm the
    Commission's determinations in its *Order on Review and
    Reconsideration* granting San Mateo's petition for reconsideration.

# ordering clause

12. 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),
    405, and Section 1.106(a)(1) of the Commission's Rules, 47 C.F.R. §
    1.106(a)(1), the Petition for Reconsideration filed on February 7,
    2001, by Champion Communication Services, Inc., IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

[^1]: Champion Communications Services, Inc. Petition for
    Reconsideration (filed Feb. 7, 2001) (Petition).

[^2]: County of San Mateo, California, *Order on Review and
    Reconsideration*, 16 FCC Rcd 4291 (2001) (reinstating San Mateo's
    Petition and granting authorizations and modifications related to
    frequency pairs 489/492.4875 MHz and 483/486.4875 MHz in the San
    Francisco area) (*Order on Review and Reconsideration*).

[^3]: Petition at 2.

[^4]: 47 C.F.R. § 90.175.

[^5]: Frequency Coordination in the Private Land Mobile Radio Services,
    *Report and Order*, PR Docket No. 83-737, 103 FCC 2d 1093 (1986).

[^6]: FCC File No. D065490.

[^7]: *See* 47 C.F.R. § 90.311(a).

[^8]: FCC File No. A004251.

[^9]: *See* Letter from Michael J. Regiec, Acting Chief, Licensing and
    Technical Analysis Branch, Public Safety and Private Wireless
    Division to Steve Dupre, Radio Systems Supervisor, County of San
    Mateo, at 1 (Apr. 24, 1998) (Branch Letter).

[^10]: FCC File No. A007122.

[^11]: *See* Branch Letter at 1. A third modification application to add
    another frequency pair, 483/486.4875 MHz at a fourth site was filed
    by San Mateo on October 29, 1997 and granted on November 17, 1997.
    *See* FCC File No. A009109. Champion's Petition does not challenge
    the grant of this third modification application.

[^12]: Branch Letter at 1*.* On July 24, 1998, after the set-aside
    action by the Branch, Champion's application was returned for
    additional information. However, Champion never re-filed its
    application.

[^13]: *Id.*

[^14]: 47 U.S.C. § 337.

[^15]: FCC File No. 0000013680 and San Mateo Waiver Request (filed Jan.
    28, 1999).

[^16]: County of San Mateo, California, *Memorandum Opinion and Order*,
    14 FCC Rcd 19002, 19009 ¶ 16 (WTB 1999) (*MO&O*).

[^17]: San Mateo Application for Review (filed Dec. 13, 1999).

[^18]: *Order on Review and Reconsideration*, 16 FCC Rcd at 4294 ¶ 7.

[^19]: 47 C.F.R. § 1.113.

[^20]: *Order on Review and Reconsideration*, 16 FCC Rcd at 4294 ¶ 8.

[^21]: San Mateo Opposition to Petition for Reconsideration (filed Feb.
    22, 2001) (Opposition).

[^22]: Champion Reply to Opposition to Petition for Reconsideration
    (filed Mar. 5, 2001).

[^23]: 47 C.F.R. § 1.113(a).

[^24]: Petition at 2.

[^25]: *Id*. at 8.

[^26]: Opposition at 5.

[^27]: Robert Fetterman d/b/a RF Communications, *Memorandum Opinion and
    Order*, FCC 01-121, ¶ 5 (rel. Apr. 11, 2001) (*Fetterman*) (citing
    *American Trucking Ass'n v. Frisco Transp. Co.*, 358 U.S. 133,
    145-46 (1958) (*American Trucking*); *Chlorine Inst. v. OSHA*, 613
    F.2d 120, 123 (5^th^ Cir.), *cert. denied*, 449 U.S. 826 (1980)
    (*Chlorine Inst.*)).

[^28]: *See* ACS PCS LLC, *Memorandum Opinion and Order*, 13 FCC Rcd
    23750, 23751 ¶ 1 (1998); *see also*, *e.g.*, *City of Long Beach v.
    Department of Energy*, 754 F.2d 379, 387 (Temp. Emer. Ct. App.
    1985).

[^29]: *See Fetterman*, ¶¶ 3-5.

[^30]: *See* Hazle-Tone Communications, Inc., *Order*, 13 FCC Rcd 1547,
    1552 ¶ 11 (WTB 1997), *aff'g* John Gabriele, *Letter*, 12 FCC Rcd
    2933 (WTB CWD 1997).

[^31]: *See* Bell Atlantic-Pennsylvania, Inc., *Order*, 13 FCC Rcd
    13415, 13416 ¶ 4 (WTB CWD PRB 1999) (*Bell Atlantic*); *see also*,
    *e.g.*, *Chicano Education and Manpower Servs. v. United States
    Dep't of Labor*, 909 F.2d 1320, 1328 (9^th^ Cir. 1990).

[^32]: *See American Trucking*, 358 U.S. at 146.

[^33]: Theodore E. Sousa, *Decision*, 71 FCC 2d 1330, 1331, 1334 ¶¶ 2, 7
    (Rev. Bd. 1979) (in reaching its decision, the Review Board did not
    specifically address the ministerial error doctrine, but did note
    the strong public interest in a reasonable finality of Commission
    action) (*Sousa*).

[^34]: *Bell Atlantic*, 14 FCC Rcd at 13416 ¶ 3 (citing Revision of Part
    22 and Part 90 of the Commission's Rules to Facilitate Future
    Development of Paging Systems, *Second Report and Order and Further
    Notice of Proposed Rule Making*, WT Docket No. 96-18, 12 FCC Rcd
    2732 (1997)).

[^35]: *Bell Atlantic*, 14 FCC Rcd at 13416 ¶ 3.

[^36]: *Id.* at 13416-17 ¶ 4 (citing, *e.g.*, *American Trucking*, 358
    U.S. at 145-46; *Chlorine Inst.*, 613 F.2d at 123). We note that
    although the Commercial Wireless Division relied on the ministerial
    error doctrine, the doctrine did not actually apply, because the
    Commercial Wireless Division acted pursuant to a timely petition for
    reconsideration of the grant, rather than on its own motion. *See
    id.* at 13415-16 ¶¶ 1-3.

[^37]: *See supra* ¶ 7. Champion cites Interstate Broadcasting Company,
    Inc., *Hearing Designation Order*, MM Docket No. 87-239, 2 FCC Rcd
    4051 (MMB ASD 1987) (*Interstate*), as an example of the Commission
    rescinding a license on its own motion more than 30 days after the
    grant. In that case, the Audio Services Division of the Mass Media
    Bureau granted a mutually exclusive renewal/modification application
    for a broadcast station in 1984, instead of designating it for
    hearing. *Id.* at 4051 ¶ 2. Then, "\[d\]ue to a computer data entry
    error, rather than a re\[s\]cission notice, a notice was generated
    incorrectly indicating that the renewal was granted a second time."
    *Id.* In 1987, relying on the line of cases cited above, the Audio
    Services Division invalidated the grant. *Id.* at 4051 ¶ 3 (citing
    *American Trucking*, 358 U.S. at 144). Due to the aged nature of the
    case, we are unable to determine whether the initial May 24, 1987
    grant was due to a ministerial or clerical error. To the extent the
    Audio Services Division's decision in *Interstate* conflicts with
    the authority discussed above, it is incorrect and will not be
    followed here.

[^38]: *See* Opposition at 6-8. We note that the Bureau's *MO&O* states
    that the Branch rescinded the modification grants on grounds of
    administrative error. *See* *MO&O*, 14 FCC Rcd at 19004 n.7. In
    fact, however, the Branch Letter does not specifically indicate the
    grounds upon which the Branch acted. *See* Branch Letter.

[^39]: *Hirschey v. FERC*, 701 F.2d 215, 219 (D.C. Cir. 1983).

[^40]: *See* *Sousa*, 71 F.C.C. 2d at 1334 ¶ 7 (noting the strong public
    interest in a reasonable finality of Commission action).