**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Application of )

)

GRECO COUSINS CONCRETE CORP ) File No. D069976

> )

for Authorization to Operate a Private )

Land Mobile Radio Station )

in the Industrial Radio Service )

)

and )

)

License of )

)

BERGEN COUNTY POLICE DEPARTMENT )

)

to Operate Frequency Pair 477/480.5125 MHz )

under Call Sign WPLR685 )

# ORDER ON RECONSIDERATION

###### And

**ORDER OF MODIFICATION**

**Adopted: April 25, 2000** **Released: May 18, 2000**

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

## **I. INTRODUCTION**

I.  

1\. Greco Cousins Concrete Corp. (Greco) seeks reconsideration of the
dismissal of its application for authorization to operate in the 470-512
MHz band. In addition, Greco requests initiation of a proceeding to
revoke the license of the Bergen County Police Department (Bergen
County) to operate on 477/480.5125 MHz under Call Sign WPLR685. For the
reasons set forth below, we reinstate to pending status Greco's
application[^1] for authorization of a new station in the Industrial
Radio Service for use on frequency pair 477/480.5125 MHz. Additionally,
on our own motion, we initiate a proceeding to modify Bergen County's
license.

### II. BACKGROUND

2\. Prior to February 1997, CIBRO Petroleum (CIBRO), a Special
Industrial (SI) licensee was authorized to operate on frequency pair
477/480.5125 MHz under Call Sign WIL489. On February 7, 1997, the
Association of Public Safety Communications Officials (APCO), a
FCC-certified frequency coordinator for the Public Safety Radio Pool,
submitted an application from the New York City Police Department
(Police Department), a public safety entity, requesting an assignment of
Station WIL489 from CIBRO to the Police Department and a modification of
the license for Station WIL489 by relocating the base station and
increasing the number of authorized units on frequency pair 477/480.5125
MHz from fifty-four to 200 units.[^2] On February 11, 1997, the
Industrial Telecommunications Association, Inc. (ITA), a FCC-certified
frequency coordinator for the Industrial/Business Radio Pool, submitted
a new application from Greco, a SI entity located in New York, to
operate sixteen units on frequency pair 477/480.5125 MHz.[^3]

3\. At the time these applications were filed, CIBRO was the only
licensee occupying frequency pair 477/480.5125 MHz. It is our
understanding that CIBRO was operating fifty-four units under Call Sign
WIL489 when the applications were filed.[^4] On March 5, 1997, the
Licensing and Technical Analysis Branch, Public Safety and Private
Wireless Division (Branch) granted the Police Department's assignment
and modification application.[^5] On May 27, 1997, ITA requested that
the Branch retract its March 5, 1997 grant because APCO failed to
coordinate the Police Department's modification application with ITA,
which ITA contends APCO was required to do pursuant to the Commission's
Rules.[^6]

4\. On December 8, 1997, the Police Department filed an application to
assign Station WIL489 to Bergen County, who in turn filed an application
to consolidate frequency pair 477/480.5125 MHz under Bergen County's
Call Sign WPLR685.[^7] The Branch granted the assignment application and
Bergen County's application on December 22, 1997.[^8] On March 6, 1998,
ITA requested a status update regarding Greco's pending application.[^9]
On April 27, 1998, Bergen County requested the dismissal of Greco's
pending application and an order requiring Greco to stop operating on
477/480.5125 MHz.[^10] On May 6, 1998, the Branch returned Greco's
application to ITA because Greco's proposed location sites were not
within 48 km of Greco's associated base stations, in contravention of
Section 90.305(b) of the Commission's Rules.[^11] The Branch further
indicated that ITA should select another frequency for its applicant and
amend the effective radiated power of the proposed station.[^12]

5\. On July 2, 1998, ITA re-certified and re-submitted Greco's original
application without making any changes to the application.[^13] Noting
that ITA is "the exclusive frequency advisory committee" for
coordinating SI frequencies, ITA contended that the Police Department
should have coordinated its request through ITA, not APCO, because the
subject frequency had been licensed previously to CIBRO, an SI entity.
ITA concluded that Greco's application was the first properly
coordinated application received by the Commission.[^14] ITA therefore
requested that the Commission re-process Greco's application.[^15] In
November 1998, ITA supplemented its July Letter by contending that
Bergen County did not have the authority to operate on frequency pair
477/480.51250.[^16] ITA reasoned that because the Police Department's
application was defective, "any subsequent grant of that application is
not controlling."[^17] ITA therefore asked that the Branch reinstate and
process Greco's application.[^18]

6\. On February 1, 1999, the Branch rejected ITA's arguments and
dismissed Greco's application. On March 3, 1999, Greco filed a petition
for reconsideration of the Branch's dismissal of its application and a
request to initiate a proceeding to revoke Bergen's license.[^19] Citing
Sections 90.135(a) and 90.175(e) of the Commission's Rules and
"established Commission policy in the acceptance and processing of
applications requiring prior frequency coordination," Greco contends
that APCO was required to "request concurrence from ITA prior to
coordinating the Police Department's applications"[^20] because "only
ITA was authorized to coordinate a request to relocate the base stations
and increase loading on a 470-512 MHz Industrial Pool frequency."[^21]
Greco also contends that APCO was required to "notify ITA of their
submission to the FCC."[^22] Thus, Greco concludes that APCO's alleged
failure to coordinate with and notify ITA of the Police Department's
application renders the Police Department's application defective, and
Greco argues that the Branch erred in granting the Police Department's
application.[^23]

#### DISCUSSION

> A. Disposition of Greco Application

7.  Greco argues that the Police Department's application was defective
    on its face because APCO failed to obtain the concurrence of ITA
    before submission of the Police Department's application to the
    Commission. We agree. Frequency coordination is the process by which
    a private organization recommends to the Commission the most
    appropriate frequencies for applicants in the designated radio
    services.[^24] We believe that inaccurate or incomplete frequency
    recommendations, if relied upon by the Commission, undermine the
    efficient use of the radio spectrum. In 1986, the Commission adopted
    frequency coordination rules and procedures in an effort to maximize
    service to the public by assuring that the assignment and management
    of the private land mobile spectrum is performed in an efficient and
    effective manner.[^25] The Commission stated that "\[w\]ithout
    access to accurate and current information, a coordinator cannot
    make sound frequency recommendations to applicants, and the
    Commission loses its ability to review effectively the frequency
    recommendations before licensing."[^26] Thus, applications proposing
    uses that could impact other requests or recommendations must be
    made known to all affected coordinators in order for them to be able
    to perform their functions in an efficient and effective
    manner.[^27]

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8.  We note as a general matter, that applications for assignment of a
    license typically do not require frequency coordination.[^28]
    However, an application which involves a change in the technical
    parameters of the station or a change to an authorization, which
    necessitates a modification request, requires frequency
    coordination.[^29] Further, such modifications must be submitted in
    accordance with the coordination requirements in Sections 90.135 and
    90.175 of the Commission's Rules.[^30]

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9.  In 1997, Sections 90.135(a) and 90.175 of the Commission's Rules
    required the Police Department to obtain a coordination statement
    from a certified frequency coordinator prior to submitting its
    assignment and modification application to the Commission.[^31]
    Specifically, Section 90.175 of the Commission's Rules provided
    that, "\[w\]hen frequencies are shared by more than one service,
    concurrence must be obtained from the other applicable certified
    frequency coordinators."[^32]

10. Additionally, Section 90.175(b) of the Commission's Rules required
    an applicant to obtain a "statement from the applicable coordinator
    recommending specific frequencies that are available for assignment
    in accordance with the loading standards and mileage separations
    applicable to the specific radio service or category of user
    involved."[^33] Thus, we also agree with Greco that the applicable
    coordinator for both the assignment and modification request was
    ITA, the certified SI frequency coordinator, because the frequency
    pair subject to assignment was licensed to CIBRO, an SI
    licensee.[^34] Further, we accept Greco's assertion that APCO failed
    to notify ITA.[^35] Given these facts, we are persuaded that the
    Police Department's application was defective when filed because
    APCO failed to coordinate the Police Department's application with
    ITA. We also note the failure of APCO to obtain concurrence from ITA
    was unknown to the Branch staff when the Police Department's
    application was granted. Because the Police Department's application
    was defective as filed, we grant Greco's Petition and return to
    pending status Greco's application for authorization of a new
    station in the Industrial Radio Service for use on frequency pair
    477/480.5125 MHz.[^36] The Branch shall review this application and
    process it in accordance with the Commission's Rules.

> B. Finality of Bergen County's License Grant

11. Greco recognizes that a petition for reconsideration of the Police
    Department's license was required to be submitted within thirty days
    of public notice of final Commission action on the application.[^37]
    The Police Department's application was granted on March 5, 1997.
    Greco's petition was not filed until March 3, 1999. Clearly, Greco's
    Petition was untimely with respect to the Police Department's
    application. Greco argues, however, that licensing errors may be
    brought to the attention of the Commission after the thirty-day
    reconsideration period.[^38] Citing Section 312(a)(2) of the
    Communications Act of 1934, as amended, (Communications Act)[^39]
    and as implemented by Section 1.91 of the Commission's Rules,[^40]
    Greco states that the Commission may revoke any station license at
    any time the Commission "learns that it issued a license in
    error."[^41] Greco therefore concludes that the Commission should
    exercise this authority and revoke the Police Department's license
    and subsequent assignment to Bergen.[^42] Although we believe that
    the Police Department's application should have been returned to the
    coordinator and not granted without concurrence from ITA, we decline
    to exercise our discretionary authority to revoke in this instance

### 

12. However, we believe that Section 316(a)(1) of the Communications Act
    involving modifications of licenses and not Section 312(a)(2) of the
    Communications Act involving revocations of licenses provides the
    appropriate vehicle for resolving this matter. Bergen County merged
    the frequency pair 477/480.5125 MHz into its existing station
    operating under Call Sign WPLR685. Section 316(a)(1) of the
    Communications Act permits the Commission to modify a station
    license if the action will promote the public interest, convenience
    and necessity, or the provisions of the Communications.[^43]

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13. As discussed above,[^44] the Branch's grant of the license to the
    Police Department was defective, with the result that the approval
    of the Police Department's application to assign the frequency pair
    to Bergen County to operate Station WIL489 was also defective. Thus,
    we believe a modification of Bergen County's license to remove
    frequency pair 477/480.5125 MHz is the appropriate course of action.
    Consequently, pursuant to Section 316 of the Communications
    Act,[^45] we are notifying Bergen County that effective June 19,
    2000, Bergen County may no longer use the frequency pair
    477/480.5125 MHz in connection with its operation of Station
    WPLR685.

14. In accordance with Section 1.87(a) of the Commission\'s Rules,[^46]
    this *Order of Modification*, will not become final until Bergen
    County has received notice of this action and an opportunity to
    protest the modification. Generally, Section 1.87(a) of the
    Commission's Rules provides for a thirty-day period to protest a
    license modification.[^47] Accordingly, Bergen County is provided
    thirty days notice of our action to modify its call sign to delete
    frequency pair 477/480.5125 MHz from call sign WPRL685.

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15. Bergen County may protest the modification of its license if, within
    twenty-five days of the release of this *Order of Modification*,
    Bergen County submits a written statement with sufficient evidence
    to show that the proposed modification would not be in the public
    interest. Your right to protest shall be deemed waived unless the
    petition is filed not later than five days before the lapse of the
    thirty-day protest period.[^48] Such protest must be filed with the
    Federal Communications Commission, Office of the Secretary, 445
    Twelfth Street, S.W., Washington, D.C. 20554. Where the right to
    file a protest is waived, Bergen County will be deemed to have
    consented to the modification as proposed and a final decision will
    be issued accordingly.[^49]

##### IV. CONCLUSION

16. For the reasons stated above, we conclude that the grant of the
    Police Department's application was defective. As a result the
    assignment of license from the Police Department to Bergen County
    was defective. Accordingly, we propose to modify the license of
    Bergen County concerning the operation of Station WPRL685.
    Specifically, we propose to delete the frequency pair 477/480.5125
    MHz from Bergen County's Station WPRL685.

### V. ORDERING CLAUSES 

17. 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(j) of the Commission's Rules, 47 C.F.R. §
    1.106(j), Greco Cousins Concrete Corporation's application under
    file number D069976 for authorization of a new station in the
    Industrial Radio Service for use on frequency pair 477/480.5125 MHz
    IS REINSTATED to pending status.

18. IT IS FURTHER ORDERED THAT, pursuant to Sections 4(i) and 312 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 312,
    and Section 1.91 of the Commission's Rules, 47 C.F.R. § 1.91, the
    Request for Initiation of a Revocation Proceeding filed by Greco
    Cousins Concrete Corp on March 3, 1999, IS DENIED.

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19. IT IS FURTHERED ORDERED THAT, pursuant to Sections 4(i) and 316 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    316, and Section 1.87 of the Commission's Rules, 47 C.F.R. § 1.87,
    that this *Order of Modification* shall become effective on June 19,
    2000 if Bergen County Police Department does not protest the *Order
    of Modification*.

20. IT IS FURTHER ORDERED pursuant to Sections 4(i) and 316 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 316 and
    section 1.87(i) of the Commission\'s Rules, 47 C.F.R. § 1.87(i) that
    the *Order of Modification* shall be served by certified mail,
    return receipt requested upon Bergen County Police Department.

21. 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]: File No. D069976.

[^2]: Application File No. 9702A003396 (filed Feb. 7, 1997) (Police
    Department Application).

[^3]: Application File No. D069976 (filed Feb. 11, 1997) (Greco
    Application).

[^4]: Greco Petition for Reconsideration and Request for Initiation of
    Revocation Proceeding (filed Mar. 3, 1999) (Petition).

[^5]: Police Department Application (granted Mar. 5, 1997).

[^6]: Letter from Marie L. Hawkins, Spectrum Manager, ITA, to Michael
    Regiec, Licensing and Technical Analysis Branch, Wireless
    Telecommunication Bureau (May 27, 1997) (Retraction Letter).

[^7]: Application File No. 9712A010992 (filed Dec. 8, 1997).

[^8]: Radio Station License for call sign WPLR685 (File No. 9712A010992)
    (granted Dec. 22, 1997).

[^9]: Letter from Richard F. Feser, ITA, to Michael Regiec, Licensing
    and Technical Analysis Branch, Federal Communications Commission
    (Mar. 5, 1998).

[^10]: Letter from Paul A. Einreinhofer, Sergeant, Division of Emergency
    Management, Department of Public Safety, County of Bergen, to
    Michael Regiec, Licensing and Technical Analysis Branch, Federal
    Communications Commission (Apr. 23, 1998).

[^11]: Letter from the Licensing and Technical Analysis Branch, Federal
    Communications Commission, to ITA (May 6, 1998).

[^12]: *Id*.

[^13]: Letter from Andre F. Cote, Senior Vice President, ITA, to Michael
    Regiec, Chief, Licensing and Technical Analysis Branch, Federal
    Communications Commission (July 2, 1998)(July Letter).

[^14]: *Id*.

[^15]: *Id*.

[^16]: Letter from Andre Cote, Senior Vice President, Spectrum
    Operations & Analysis, ITA, to Mary Shultz, Chief, Licensing &
    Technical Analysis Branch, Public Safety and Private Wireless
    Division, Federal Communications Commission (Nov. 16, 1998)
    (Resubmission Letter).

[^17]: *Id*. at 4.

[^18]: Resubmission Letter.

[^19]: Petition at 8.

[^20]: Petition at 2.

[^21]: Petition at 3.

[^22]: Petition at 2.

[^23]: ^?^Petition at 4.

[^24]: Frequency Coordination in the Private Land Mobile Radio Services,
    *Report and Order*, 103 FCC2d 1093, 1094 ¶ 1 (1986).

[^25]: *Id*. at 1094 -1095 ¶ 2.

[^26]: *Id*. at 1148 ¶ 111; *see also* *id*. at 1150 ¶ 116.

[^27]: *Id*. at 1150 ¶ 116.

[^28]: *Id*. at 1154 -- 1155 ¶ 125

[^29]: *Id*. at 1154 -- 1155 ¶ 125; *see also* 47 C.F.R. § 90.175(f)(9)
    (1986).

[^30]: *Id*. at 1148 -- 1149 ¶ 112.

[^31]: 47 C.F.R. § 90.135(a) (1996); 47 C.F.R. § 90.175(b) (1996). Greco
    cites 47 C.F.R. § 90.175(e) in support of its argument that the
    Police Department was required to obtain concurrence from ITA.
    Because Section 90.175(e) pertained to frequency coordination
    requirements with Canada at the time the Branch granted the Police
    Department's application, however, we presume Greco intended to cite
    47 C.F.R. § 90.175(b).

[^32]: 47 C.F.R. § 90.175 (1996).

[^33]: 47 C.F.R. § 90.175(b)(1996). At 62 Fed. Reg. 18925, the
    Commission amended § 90.175 on April 17, 1997, which resulted in the
    re-designation of paragraph (b) as paragraph (e). The newly
    designated paragraph (e) was also revised, and the changes became
    effective Oct. 17, 1997.

[^34]: *Supra* para. 5, at 3.

[^35]: Petition at 2.

[^36]: 47 C.F.R. § 1.106.

[^37]: Petition at 7.

[^38]: Petition at 7.

[^39]: 47 U.S.C.A. § 312(a)(2) (1998).

[^40]: 47 C.F.R. § 1.91 (1998).

[^41]: Petition at 7.

[^42]: Petition at 8.

[^43]: 47 U.S.C. § 316(a)(1).

[^44]: *Supra* para. 10.

[^45]: 47 U.S.C. § 316.

[^46]: 47 C.F.R. § 97.27(b).

[^47]: 47 C.F.R. § 1.87(a) allows the imposition of a shorter period of
    time where safety of life or property is involved.

[^48]: 47 C.F.R. § 1.87(g).

[^49]: 47 C.F.R. § 1.87(h).