> Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | * | File No. 26834-CD-P-93       |
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| Robert Fetterman d/b/a           | ) |                              |
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| RF Communications                | * |                              |
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| For Authority to Operate a New   | * |                              |
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| Domestic Public Land Mobile      | ) |                              |
| Radio                            | * |                              |
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| Service Station on Frequency     |   |                              |
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| 454.125 MHz at Trevorton,        | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: April** **3, 2001 Released: April 11, 2001**

By the Commission:

# introduction

1.  This order addresses the Application for Review filed by Robert
    Fetterman d/b/a RF Communications (RF) on December 17, 1999.[^1] RF
    seeks Commission review of a November 19, 1999 order of the Wireless
    Telecommunications Bureau, Commercial Wireless Division, Policy and
    Rules Branch (Division), which denied reconsideration of the
    dismissal of the above-captioned application.[^2] For the reasons
    discussed below, we deny RF's Application for Review.

# background

2.  In July 1993, RF applied to operate a Domestic Public Land Mobile
    Radio Service station on 454.125 MHz at Trevorton, Pennsylvania.[^3]
    On February 10, 1994, the former Mobile Services Division of the
    Common Carrier Bureau dismissed RF's application as defective.[^4]
    In dismissing RF's application, the Mobile Services Division found
    that RF failed to: (1) identify co-channel station KSV-940, licensed
    to Richard Blyler d/b/a Lebanon Mobilefone (Lebanon); and (2)
    provide an interference study showing that RF's proposed facility
    would not cause harmful interference to Lebanon, as required by
    former rule section 22.15(b)(2). RF petitioned for reconsideration
    of the dismissal.

3.  On reconsideration, RF argued that Lebanon did not have a valid
    authorization for frequency 454.125 MHz because that frequency was
    not included on the construction permit issued to Lebanon in 1979.
    RF also argued that it relied on the Commission's licensing database
    to determine the existence of possible co-channel licenses and the
    database did not indicate any facilities licensed to Lebanon on
    454.125 MHz at this location. In its *Reconsideration Order*, the
    Division upheld the original dismissal. Although Lebanon's 1979
    construction permit did not list 454.125 MHz, the Division noted
    that the June 11, 1979 Public Notice of grant of the application did
    list the frequency,[^5] which the Division found to provide both
    proof and notice to RF that the frequency had been granted to
    Lebanon.[^6] The Division further found that the omission of the
    frequency from Lebanon's original construction permit was a clerical
    error that had been subsequently corrected.[^7]

4.  In its Application for Review, RF presents four arguments for
    Commission review: (1) that the Division erred when it found that
    the June 1979 *Public Notice* was proof that the Commission
    authorized Lebanon to use 454.125 MHz; (2) that the June 1979
    *Public Notice* did not provide sufficient notice to later
    applicants; (3) that Lebanon did not seek to correct the omission of
    454.125 MHz from its authorization on a timely basis, and is
    therefore estopped from claiming authority to operate on the
    frequency; and (4) that Lebanon had a duty to inform the Commission
    of any error on the instrument of authorization.[^8] RF also
    contends generally that the Bureau did not address the legal
    arguments raised in RF's *Petition for Reconsideration*.[^9]

# discussion

5.  We have analyzed the Application for Review and conclude that the
    *Reconsideration Order* was correctly decided.[^10] First, we reject
    the argument that the June 1979 *Public Notice* does not constitute
    evidence that Lebanon was authorized to operate on frequency 454.125
    MHz.[^11] A Public Notice is not a construction permit; rather, it
    provides evidence of the Commission's grant of an authorization and
    provides notice of such a grant to the public. The June 1979 *Public
    Notice* specifically indicated that Lebanon's application requesting
    authority to operate on 454.125 MHz was granted.[^12] Although the
    construction permit inadvertently failed to list the frequency, this
    omission was a clerical error that was subsequently corrected.
    Administrative agencies have the authority to correct inadvertent,
    ministerial errors, and we conclude that such authority was properly
    exercised in this matter.[^13]

6.  RF argues that the June 1979 *Public Notice* did not provide
    sufficient notice to later applicants of Lebanon's right to operate
    on 454.125 MHz, and that RF relied to its detriment on the
    Commission's database in determining whether its proposed operation
    would cause interference.[^14] We do not find this argument
    persuasive. Applicants have been cautioned that Commission databases
    and lists are unofficial records that should not be relied on
    because of possible inconsistencies between such databases and the
    primary sources of information, including public notices.[^15]

7.  Moreover, even if we accepted RF's argument that it did not receive
    sufficient notice, RF has failed to show detrimental harm. At the
    time of the filing of RF's application, it could not have been
    processed because it would have conflicted with Lebanon's earlier
    filed application. The clerical error in failing to include 454.125
    MHz on Lebanon's construction permit does not operate as either a
    dismissal of Lebanon's application, or as a revocation of Lebanon's
    license, either of which would be necessary in order to find RF's
    application suitable for grant. Further, RF's application for
    authority to operate on 454.125 MHz would not have been included in
    a mutually exclusive filing group with Lebanon's application, as
    RF's application was filed almost 15 years after the expiration of
    the applicable cut-off period.

8.  RF further argues that by virtue of the omission of 454.125 MHz from
    its construction permit, Lebanon received a partial grant of
    authority under our rules with respect to its applications, and
    forfeited any right to 454.125 MHz because it did not seek to have
    the partial grant corrected within 30 days of the issuance of the
    license.[^16] Because we have concluded that the failure to list
    454.125 MHz on the initial construction permit was an administrative
    error, we reject the claim that this was a partial grant and find
    that Lebanon did not forfeit its right to the channel. The issuance
    of a partial grant would have required the Bureau to inform the
    applicant of the reasons that its application was granted only in
    part or was otherwise subject to any terms or conditions other than
    those normally applied to applications of the same type.

9.  RF argues that Lebanon is barred under the doctrine of laches from
    asserting a right to the 454.125 MHz frequency[^17] and claims that
    Lebanon failed to perform its duty to inform the Commission of any
    error in the authorization issued by the Commission. RF also states
    that the Bureau's decision is contrary to the "Commission's
    oft-stated demand that licensees are responsible for the contents of
    their instruments ...."[^18] We find no merit to these arguments.
    The party alleging laches has the burden of establishing that it
    "has been prejudiced by \[another party's\] inexcusable delay in
    asserting a known right."[^19] The record shows that prior to the
    filing of RF's application, Lebanon sought on multiple occasions to
    notify the Commission of the error and have its authorization
    corrected to specifically include the inadvertently omitted
    frequency.[^20] Under these circumstances, we find that RF has
    failed to show inexcusable delay on Lebanon's part in asserting its
    rights.

10. In its Application for Review, RF generally argues that the Bureau's
    decision "is contrary to those statements of law and fact contained
    within RF's earlier filed Petition for Reconsideration, which is
    attached as Exhibit A and incorporated herein."[^21] For the reasons
    stated above, we find that the Bureau's decision is well supported
    and is consistent with Commission rules and policies. To the extent
    that RF seeks Commission review, through generalized incorporation
    by reference of its Petition for Reconsideration, of issues other
    than the four specifically identified in its Application for Review,
    we find that its pleading fails to comply with Section 1.115 (b)(1),
    which provides that applications for review shall "concisely and
    plainly state the questions presented for review with reference,
    where appropriate, to the findings of fact or conclusions of
    law."[^22] We also find that RF's pleading violates Section 1.115
    (b)(2), which provides that applications for review must specify
    with particularity the factor(s) that warrant Commission
    consideration of the questions presented.[^23]

# ordering clause

11. Accordingly, IT IS ORDERED that, pursuant to Section 5(c)(5) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 155(c)(5), and
    Section 1.115(g) of the Commission's rules, 47 C.F.R. § 1.115(g),
    the Application for Review filed by Robert Fetterman d/b/a RF
    Communications is DENIED.

    **FEDERAL COMMUNICATIONS COMMISSION**

> Magalie Roman Salas

Secretary

[^1]: RF Application for Review, filed December 17, 1999 (Application
    for Review).

[^2]: Robert Fetterman, *Order on Reconsideration*, DA 99-2597 (Wireless
    Tel. Bur., rel. November 19, 1999) (*Reconsideration Order*)*.*

[^3]: *See Public Notice*, Report No. PMS-93-42 (Comm. Carr. Bur., rel.
    July 21, 1993).

[^4]: Letter from John Cimko, Chief, Mobile Services Division, Common
    Carrier Bureau, Federal Communications Commission, to Kathleen A.
    Kaercher, Brown & Schwaninger, File No. 26834-CD-P-93, Reply
    1600D2-SG, dated February 10, 1994 (*Dismissal Order*).

[^5]: *Public Notice*, No. 966-A (Comm. Carr. Bur., rel. June 11, 1979)
    (June 1979 *Public Notice*). The Public Notice stated, in the
    section identified as "ACTIONS TAKEN" in the Domestic Public Land
    Mobile Radio Service, the following: "Richard F. Blyler: d/b/a
    Lebanon Mobilefone (KSV-940) GRANTED C.P. for additional facilities
    to operate on 454.300 & 454.125 MHz at Loc. \# 2: Sand Hill Road,
    2.75 miles North of Lebanon, PA (20523-CD-P-79)(2-way)."

[^6]: *Reconsideration Order* at 1.

[^7]: *Id.*

[^8]: Application for Review at 1-2.

[^9]: Application for Review at 3.

[^10]: On December 30, 1999, Lebanon filed a "Consent Motion for
    Extension of Time to File Opposition to Application for Review" that
    sought an extension of time until January 14, 2000 in which to file
    its Opposition to Application for Review (Opposition). Lebanon
    states that it was not timely served with RF's Application and that
    RF consents to the extension. While the Commission does not
    routinely grant motions for extensions of time, we find that an
    extension is appropriate under the circumstances set forth in
    Lebanon's motion and we have therefore considered Lebanon's
    Opposition.

[^11]: RF incorrectly cites rule sections 22.5 and 22.27(a) as not
    permitting the Commission to issue an authorization by public
    notice. Specifically, RF cites Commission rule section 22.27 (a)(3),
    which was not adopted until 1984, five years after the issuance of
    the *June 1979 Public Notice*. *See* Application for Review at 2,
    Ex. A at 4-5. Further, Lebanon's 1978 applications were filed under
    Part 21 of our rules, as our Part 22 rules were not then in effect.
    *See* Domestic Fixed Radio Services and Public Mobile Radio
    Services, 44 Fed. Reg. 60,532, 46 Rad. Reg. 2d (P&F) 652 (1979)
    (separating Parts 21 and 22 of the rules into discrete rule parts
    without substantive changes).

[^12]: *See* June 11, 1979 Public Notice.

[^13]: *Chlorine Institute v. OSHA*, 613 F.2d 120, 123 (5^th^ Cir.),
    *cert. denied*, 449 U.S. 826 (1980); *see American Trucking Ass'n v.
    Frisco Transportation Co.*, 358 U.S. 133, 145-46 (1958).

[^14]: Application for Review at 4.

[^15]: *See* Mobilfone of Northeastern Pennsylvania, Inc*.*, *Memorandum
    Opinion and Order*, 5 FCC Rcd 7414, 7415, ¶ 10 (Com. Car. Bur.
    1990)(citing Commission rule section 0.434(e), 47 C.F.R. §
    0.434(e)); B & B Communications, Inc*.*, *Order on Reconsideration*,
    1986 WL 290989, File No. 23962-CD-P/L-85, ¶ 3, (Com. Car. Bur.
    1986).

[^16]: Application for Review at 3, Exh. A at 5-6.

[^17]: Application for Review at 3.

[^18]: Application for Review at 5.

[^19]: Western Union International, Inc*.*, *Memorandum Opinion and
    Order*, 70 FCC 2d 1896, 1903, ¶ 36 (1979).

[^20]: On March 13, 1980, Lebanon filed FCC Form 403 with the Commission
    indicating the completion of construction and specified both
    frequencies, including the inadvertently omitted frequency, 454.125
    MHz. On June 19, 1986, Lebanon filed a letter seeking correction of
    its authorization. *See* Opposition, Ex. 2, Letter from James S.
    Finerfrock, Attorney for Lebanon, to Kevin J. Kelly, Chief, Mobile
    Services Division, File No. 22756-CD-P/ML-01-85, dated June 19, 1986
    (requesting correction to recent construction permit and the
    inclusion of 454.125 MHz at Location 2 for Station KSV940) (June 19,
    1986 Letter); On February 7, 1989, Lebanon filed an application to
    renew its license and included frequency 454.125 MHz. In its renewal
    application, Lebanon also referenced its filing of the June 19, 1986
    Letter seeking correction. As indicated herein, Lebanon also sought
    correction of the error by letter in 1990 and again in 1993. *See*
    fn 11, *infra*; Opposition, Ex. 2, Letter from James S. Finerfrock,
    Attorney for Lebanon, to Gregory J. Vogt, Chief, Mobile Services
    Division, File No. 23837-CD-R-01-89, dated February 15, 1990
    (requesting corrections to recent renewal authorization and the
    inclusion of 454.125 MHz at Location No. 2 for Station KSV940)
    (February 15, 1990 Letter); Opposition, Ex. 2, Letter from Paul G.
    Madison to John Cimko, Chief, Mobile Services Division, File No.
    23837-CD-R-01-89, dated August 5, 1993 (requesting corrections to
    the authorization issued for Station KSV940 including the
    identification of frequency 454.125 MHz facilities) (August 5, 1993
    Letter). On August 12, 1993, the Mobile Services Division corrected
    the clerical error by properly including 454.125 MHz on Lebanon's
    authorization.

[^21]: Application for Review at 2.

[^22]: 47 C.F.R. § 1.115 (b) (1).

[^23]: 47 C.F.R. § 1.115 (b) (2).