##  Before the

##  Federal Communications Commission

##  Washington, D.C. 20554

In the Matter of Applications of )

)

SAMUEL FERGUSON )

) File Nos. 656123

To Operate a Two-Way Mobile System ) 9606D040708

In the San Diego, California Area )

On the Frequencies )

861.3500/816.3500 MHz )

)

and )

)

A TO Z ENTERPRISES, INC. )

) File Nos. 662404

To Operate a Two-Way Mobile System ) 9606D042160

In the San Diego, California Area )

On the Frequencies )

861.3500/816.3500 MHz )

# ORDER

**Adopted: February 24, 2000 Released: February 25, 2000**

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

# I. INTRODUCTION

1.  We have before us for consideration four private land mobile radio
    service (PLMR) applications for frequency pair 861.3500/816.3500 MHz
    in San Diego, California.[^1] During the pendency of this licensing
    matter, the applicants, Samuel Ferguson Ready Mix (Ferguson) and A
    to Z Enterprises, Inc. d/b/a A to Z Towing (A to Z) have filed
    several pleadings opposing the grant of the other applicant's
    application. For the reasons set forth below, we affirm the
    dismissal of A to Z's application, and direct the Licensing and
    Technical Analysis Branch to grant Ferguson's 1996 Application, and
    deny A to Z's Petition.

# II. BACKGROUND

II. 

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2.  On August 12, 1988, A to Z received a five-year authorization to
    operate Station WNGT848 on

frequency pair 861.3500/816.3500 MHz in the San Diego area. A to Z
failed to renew its authorization by the August 12, 1993, expiration
date. As a result, the license automatically cancelled as of August 12,
1993. However, the authorization was not deleted from the Commission's
database until October 30, 1994.

3\. On January 25, 1994, Ferguson filed an application with the
Commission, seeking authorization to operate on frequency pair
861.3500/816.3500 in the San Diego area.[^2] On March 24, 1994, A to Z
filed a request for Special Temporary Authorization (STA), seeking
authorization to operate its communications system. A to Z's STA Request
was granted on March 24, 1994, authorizing A to Z to operate on the
subject frequencies under call sign KAC5571 on a secondary
non-interference basis, pending the outcome of the instant
proceeding.[^3]

4\. On March 25, 1994, A to Z filed an Emergency Request to Dismiss
Ferguson's 1994 Application, arguing that Ferguson was not a legal
corporation registered in California, as noted on Ferguson's
application.[^4] On March 31, 1994, A to Z filed an application with the
Commission, seeking authorization to operate on the subject
frequencies.[^5] The next day, Ferguson filed an amendment to its
original application, to reflect its status as an individual, instead of
as a corporation.[^6] Ferguson's application was granted on May 31,
1994, authorizing Ferguson to operate a Conventional Industrial/Land
Transportation system on the subject frequencies under call sign
WPEV482. A to Z requested reconsideration of the grant of Ferguson's
application on June 30, 1994 (Initial Petition).[^7] A to Z argued that
Ferguson's Application was defective when filed in addition to
containing a fraudulent misrepresentation regarding the identity of the
applicant.[^8]

5\. On August 9, 1994, the Associate Bureau Chief, Licensing Division
(Division),[^9]

Wireless Telecommunications Bureau, granted A to Z's Initial Petition in
part, and denied it in part.[^10] Specifically, the Division granted
reconsideration of its May 31, 1994, action authorizing Ferguson to
operate Station WPEV482, and set aside Ferguson's authorization.[^11]
The Division concluded that because A to Z filed its application prior
to the deletion of Station WPEV482 from the Commission's database, A to
Z's application had been filed prematurely.[^12] As a result, the
Division dismissed A to Z's 1994 Application in its August 9, 1994,
ruling.

6.  On September 7, 1994, A to Z filed a petition for reconsideration
    seeking reversal of the

August 9, 1994, dismissal of its application (Subsequent Petition).[^13]
A to Z argued in its Subsequent Petition that the Division should have
returned A to Z's March 31, 1994, application for resubmission, instead
of dismissing it. A to Z argued that by doing so, A to Z's filing status
would have been preserved. A to Z argued that it was unable to receive
frequency coordination because of Ferguson's pending application,
therefore A to Z's application should not have been summarily dismissed.
The September 7, 1994, Subsequent Petition has not been explicitly ruled
upon.

7.  On September 9, 1994, Ferguson filed a petition for reconsideration,
    seeking reinstatement of its

authorization to operate Station WPEV482.[^14] The Ferguson Petition has
not been ruled upon. A to Z opposed the Ferguson Petition. A to Z argued
that the Ferguson Petition was filed in Gettysburg, Pennsylvania,
instead of Washington, D.C., had never been served on A to Z, and was
untimely filed by one day.[^15]

8.  Ferguson's authorization to operate Station WPEV482 was deleted from
    the Commission's

database on June 3, 1996. On June 11, 1996, Ferguson filed a new
application requesting authorization to operate on the subject
frequencies.[^16] On June 17, 1996, A to Z filed a new application
requesting authorization to operate on the subject frequencies.[^17]
Ferguson's June 11, 1996, application was granted by the Division on
August 12, 1996, authorizing Ferguson to operate under call sign
WPJN775.[^18] Ferguson's August 12, 1996, grant was subsequently set
aside pending further review on August 14, 1996. As a result, Ferguson's
June 11, 1996, application was returned to pending status.[^19]

9.  On September 3, 1998, the Licensing and Technical Analysis Branch of
    the Public Safety and

Private Wireless Division (Branch) determined that Ferguson's June 11,
1996, application should be granted, and that A to Z's June 17, 1996,
application should be dismissed. The Branch made this determination on
the basis that Ferguson was the first to refile for the subject
frequencies.[^20] A to Z filed a Petition for Stay of the September 3,
1998, action on October 2, 1998.[^21] In its Petition for Stay, A to Z
argued that Ferguson was barred from reapplying for the subject
frequencies, because a ruling had not been made on the pending Initial
Petition filed by Ferguson relating to the dismissal of Ferguson's 1994
Application.[^22] A to Z also filed a Petition for Reconsideration on
October 2, 1998, requesting reconsideration of the August 3, 1998,
action.[^23] On December 22, 1998, A to Z additionally filed a Petition
for Expedited Action regarding its Petition for Stay.[^24] The Petition
for Stay and Petition for Expedited Action remain pending.

10. Pursuant to the September 3, 1998, action, A to Z's June 17, 1996,
    application[^25] was dismissed on January 5, 1999.[^26] The grant of
    Ferguson's application, authorizing Ferguson to operate on the
    subject frequencies under call sign WPMU478, appeared on the
    Commission's database the same day.

By letter dated January 22, 1999, Ferguson's January 5, 1999, grant was
set-aside to allow the Division to address A to Z's October 2, 1998,
Petition for Reconsideration. [^27]

#### DISCUSSION

11. A to Z allowed its authorization to operate Station WNGT848 on
    frequency pair 861.3500/816.3500 to expire on August 12, 1993, and
    failed to timely file a renewal request. Between January 1994, and
    July 1996, A to Z and Ferguson each filed two applications for the
    frequency pair. We must first analyze the current status of each of
    the four applications in order to resolve the issues raised in the
    pleadings of A to Z and Ferguson.

##### The 1994 Applications

12. Ferguson's 1994 Application[^28] was set aside by the Division on
    August 9, 1994. The Ferguson Petition was filed on Friday, September
    9, 1994, requesting reconsideration of the August 9, 1994 set aside.
    Assuming persons could seek reconsideration of the set aside of a
    license, such petition must be filed within thirty days of the
    action.[^29] This deadline is statutory and may not be waived.[^30]
    Ferguson's petition was filed on the thirty-first day. Consequently,
    the petition for reconsideration was untimely and will not be
    considered.[^31] Accordingly, we will address Ferguson's and A to
    Z's 1994 applications together.

13. We find that at the time Ferguson and A to Z filed their 1994
    applications, the frequencies associated with Station WNGT848 had
    not been deleted from the Commission's database. While a channel
    associated with an expired private land mobile radio license is
    available to all applicants on a first-come, first-served basis, it
    is available only after the license associated with that channel has
    been deleted from the Commission's database.[^32] Ferguson and A to
    Z were therefore barred from filing an application for those
    frequencies because they were not yet available.[^33] Therefore, the
    dismissal of A to Z's 1994 Application on August 12, 1994, is
    affirmed, and we deny A to Z's Subsequent Petition filed on
    September 7, 1994. In addition, we dismiss Ferguson's 1994
    Application.

###### 

*B. The 1996 Applications*

14\. Ferguson's 1996 application for the subject frequencies was granted
under call sign WPJN775 on August 12, 1996,[^34] and was subsequently
set aside on August 14, 1996, pending further review. The application
was subsequently granted on January 4, 1999, under call sign WPMU478. It
was set aside again on January 22, 1999, pending further review.
Ferguson's second application is thus still pending.

15\. A to Z's 1996 Application was dismissed on September 3, 1998,
because another applicant, Ferguson, filed its application seeking the
subject frequencies before A to Z filed its application. A to Z filed a
petition for reconsideration of the dismissal action and a petition for
stay of the dismissal of its application on October 2, 1998.[^35] On
December 22, 1998, A to Z filed a petition for expedited action
concerning its petition for stay.[^36] A to Z's petition for
reconsideration, petition for stay and petition for expedited action
remain pending, and will be addressed by our action herein.

16\. Station WPEV482 was deleted from the Commission's database on June
3, 1996. Once deleted, applicants were free to file for the frequencies
associated with the station. Ferguson was the first applicant to file
for the subject frequencies on June 11, 1996. A to Z subsequently filed
for the subject frequencies on June 17, 1996. Because private land
mobile radio stations are available on a first-come, first-served
basis,[^37] and Ferguson was the first applicant to file for the
frequencies associated with Station WPEV482 after the station was
deleted from the Commission's database, Ferguson's 1996 application is
accepted for filing and shall be granted. Accordingly, A to Z's 1996
Application seeking the same frequencies is dismissed.

**IV. CONCLUSION AND ORDERING CLAUSES**

17\. The frequencies covered by an expired private land mobile radio
(PLMR) license remain unavailable for reassignment to other applicants
until the license is deleted from the Commission's database. The
database deletion alerts all interested applicants, and the frequency
coordinators, that PLMR channels are available for reassignment.[^38] In
the instant case, both Ferguson and A to Z initially filed applications
for frequency pair 861.3500/816.3500 MHz in the San Diego area, prior to
the deletion of A to Z's expired license for this frequency pair from
the Commission's database. The initial applications filed by both
parties were dismissed as prematurely filed. Ferguson was the first
applicant to file a subsequent application, after the subject frequency
pair was deleted from the Commission's database. A review of Ferguson's
subsequent application indicates that it was timely filed, and ,may be
granted. A to Z's subsequent applicant seeking the same frequency pair
must be dismissed because Ferguson was the first applicant to file for
the frequency pair.

18\. For the reasons discussed above, IT IS ORDERED, 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 of the Commission's Rules, 47
C.F.R. § 1.106, that the petitions for reconsideration filed by A to Z
Enterprises, Inc. d/b/a A to Z Towing on September 7, 1994, and October
2, 1998, ARE DENIED.

19\. IT IS FURTHER ORDERED pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), the Petition
for Stay filed by A to Z Enterprises Inc., d/b/a A to Z Towing on
October 2, 1998, and its Petition for Expedited Action filed on December
22, 1998, are DISMISSED AS MOOT.

20\. IT IS FURTHER ORDERED, 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 of the Commission's Rules, 47 C.F.R. § 1.106, that the
petition for reconsideration filed by Ferguson on September 9, 1994, IS
DENIED.

21\. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), that A to Z
Enterprises, Inc. d/b/a A to Z Towing's Applications, seeking
authorization to operate on frequency pair 861.3500/861.3500 MHz ARE
HEREBY DISMISSED.

22\. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309(f) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309(f) the
Special Temporary Authorization in the name of A to Z Enterprises, Inc.
d/b/a/ A to Z Towing, to operate Station KAC5571, IS HEREBY SET ASIDE.

23\. As a result of this action, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), Samuel
Ferguson's Application No. 656123 IS HEREBY DISMISSED, and Samuel
Ferguson's Application No. 9606D040708 IS HEREBY GRANTED, authorizing
Ferguson Ready Mix to operate Station WPMU478 on frequencies
861.3500/816.3500 MHz in the San Diego, California area.

24\. 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]: Samuel Ferguson filed two applications for these frequencies. The
    first application shall be referred to as Ferguson's 1994
    Application and the second application shall be referred to as
    Ferguson's 1996 Application. A to Z filed two applications for these
    frequencies. Its first application shall be referred to as its 1994
    Application and the second application shall be referred to as its
    1996 Application.

[^2]: *See* FCC File No. 656123 (filed Jan. 25, 1994) (1994
    Application).

[^3]: *See* Special Temporary Authorization (STA) granted March 25,
    1994. The STA, with subsequent renewals, authorized A to Z Towing,
    Inc. to operate on frequency pair 816.3500/861.3500 MHz in the San
    Diego, California area until June 10, 2000.

[^4]: *See* Emergency Request to Dismiss (filed March 25, 1994).

[^5]: *See* FCC File No. 662404 (filed March 31, 1994).

[^6]: *See* Amendment to FCC File No. 656123 (filed April 1, 1994).

[^7]: Petition for Reconsideration (filed June 30, 1994).

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

[^9]: Pursuant to a reorganization of the Wireless Telecommunications
    Bureau in 1997, the pertinent functions of the Licensing Division
    regarding private wireless matters are now administered by the
    Licensing and Technical Analysis Branch of the Public Safety and
    Private Wireless Division.

[^10]: *See* Letter to Raymond A. Kowalski, counsel to A to Z
    Enterprises, Inc., from W. Riley Hollingsworth, Federal
    Communications Commission (dated August 9, 1994).

[^11]: *Id.* at 1.

[^12]: *Id.*

[^13]: Petition for Reconsideration (filed September 7, 1994).

[^14]: Petition for Reconsideration (filed September 9, 1994) (Ferguson
    Petition).

[^15]: Opposition to Petition for Reconsideration (filed September 29,
    1994).

[^16]: *See* FCC File No. 9606D040708 (filed June 11, 1996).

[^17]: *See* FCC File No. 9606D042160 (filed June 17, 1996).

[^18]: *See* FCC File No. 9606D040708, granted August 12, 1996,
    authorizing Ferguson Ready Mix to operate under call sign WPJN775.

[^19]: *See* Letter to Samuel Ferguson d/b/a Ferguson Ready Mix, from
    Michael J. Regiec on behalf of Terry L. Fishel, Federal
    Communications Commission (dated August 14, 1996).

[^20]: *See* Letter to Raymond Kowalski, counsel to A to Z Towing, and
    Samuel Ferguson, from Steven Linn on behalf of Mary Shultz, Federal
    Communications Commission (dated September 3, 1998

[^21]: Petition for Stay (filed October 2, 1998).

[^22]: *Id.* at 2.

[^23]: Petition for Reconsideration (filed October 2, 1998) (Petition
    for Reconsideration).

[^24]: Petition for Expedited Action (filed December 22, 1998).

[^25]: File No. 9606D042160.

[^26]: *See Notice of Application Dismissal* to Raymond Kowalski,
    counsel to A to Z Towing, from Linda Utz, Federal Communications
    Commission (dated January 5, 1999).

[^27]: *See* Letter to Raymond Kowalski, counsel to A to Z Towing, from
    Mary Shultz, Federal Communications Commission (dated January 22,
    1999).

[^28]: FCC File No. 656123.

[^29]: *See* 47 U.S.C. § 405(a); 47 C.F.R. §§ 1.104(b), 1.106(f).

[^30]: *See* Stephen E. Powell, *Memorandum Opinion and Order*, 11 FCC
    Rcd 11925, 11926 (1996) (*citing Reuters Ltd. v. FCC*, 781 F.2d 946,
    952 (D.C. Cir. 1986)).

[^31]: Daniel R. Goodman, Receiver, Dr. Robert Chan, *Memorandum Opinion
    and Order and Order on Reconsideration*, 13 FCC Rcd. 21944, 21959 ¶
    24.

[^32]: *See* Amendment of Parts 1 and 90 of the Commission's Rules
    Concerning the Construction, Licensing and Operation of Private Land
    Mobile Radio Stations, *Memorandum Opinion and Order*, PR Docket No.
    90-481, 8 FCC Rcd 6690 (1993).

[^33]: *See e.g.,* Central Radio Communications Corp., *Memorandum
    Opinion and Order*, 11 FCC Rcd 17,110 (1996) (three applications
    were dismissed because each application sought a channel after the
    expiration of a station license which was not yet available on the
    Commission's database).

[^34]: FCC File No. 9606D040708.

[^35]: *Supra* notes 21 and 23.

[^36]: *Supra* note 24.

[^37]: *See* 47 C.F.R. § 90.611(b).

[^38]: *Id.* at paras. 3-5.