**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| # In the Matter of               | * | FCC File No. 0000568432      |
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| NIAGARA MOHAWK POWER CORPORATION | ) |                              |
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| Application for Modification of  | * |                              |
| Conventional Industrial/Business |   |                              |
| Radio Pool Station WPKW909,      | * |                              |
| Albany, New York                 | * |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: October 1, 2002 Released: October 9, 2002**

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

**I. INTRODUCTION**

1\. On January 18, 2002, Niagara Mohawk Power Corporation (Niagara
Mohawk) filed a petition for reconsideration[^1] contesting the
dismissal of its August 22, 2001 application[^2] for modification of
conventional Industrial/Business Radio Pool Station WPKW909, Albany, New
York. For the reasons discussed below, we deny the Petition and affirm
the dismissal of the application.

**II. BACKGROUND**

2\. Under the Commission's unified policy for dismissing and returning
applications, as well as pleadings related to such applications (Unified
Policy),[^3] applications or pleadings that are defective, as a general
matter, are subject to dismissal, rather than being returned to the
applicant for correction. As an exception, however, the Commission noted
that it retained "the discretion to return an application if
circumstances warrant."[^4] In the *Unified Policy Public Notice*,[^5]
the Bureau determined that it would return for correction, rather than
dismiss, timely filed renewal applications and timely filed
notifications of construction (*i.e.,* where dismissal could result in
expiration or termination of a license).[^6] With respect to returns,
the Commission previously has noted that "if the applicant fails to
submit an amended application within the period specified in the
notification, the application will be subject to dismissal for failure
to prosecute."[^7] The Bureau reiterated this notion in the *Unified
Policy Public Notice* by stating that:

> Returns will be done by letter and will clearly state that failure to
> respond within 60 days will result in dismissal of the subject
> application. If at the end of the 60-day period the Bureau is still
> unable to process the application (whether or not it has been
> amended), the Bureau may dismiss the application pursuant to Section
> 1.934(c) for failure to prosecute.[^8]

3\. On August 22, 2001, Niagara Mohawk filed an application to modify
Station WPKW909.[^9] Because the application requested frequencies
allocated to the Public Safety Radio Pool,[^10] Niagara Mohawk requested
a waiver of Section 90.20 of the Commission's Rules.[^11] The Licensing
and Technical Analysis Branch (Branch) of the Public Safety and Private
Wireless Division returned the application to Niagara Mohawk on November
8, 2001.[^12] The return letter directed Niagara Mohawk to "provide
evidence demonstrating that there are no Industrial/Business pool
channels available for this operation."[^13] The letter instructed
Niagara Mohawk to respond within sixty days, and warned that failure to
respond in that time could result in dismissal of the application.[^14]
Niagara Mohawk states that its frequency coordinator "attempted to
contact the FCC on December 18, 2001, well within the 60-day
deadline,"[^15] but Commission staff did not return its call until
January 5, 2002, at which time staff referred Niagara Mohawk to another
member of the Commission's staff for more information.[^16] According to
the Petition, "\[t\]he frequency coordinator did contact that person and
was instructed to provide a frequency search or a letter indicating that
no Industrial/Business Service Channels were available. By that time,
the 60-day deadline had passed."[^17]

4\. Having failed to amend the application with the requested
information within sixty days of the date shown on the return letter,
Niagara Mohawk on January 18, 2002 filed the Petition seeking
reconsideration of the anticipated dismissal of the application. On
March 10, 2002, the Branch dismissed the application.[^18]

**III. DISCUSSION**

5\. As an initial matter, we note that Niagara Mohawk's filing of the
Petition on January 18, 2002 was premature. Niagara Mohawk contends that
the instant Petition should be deemed timely filed "because it is filed
within 30 days of the deadline for responding to the Notice of
Application Return."[^19] We disagree. Section 1.106(f) of the
Commission's Rules specifies that a "petition for reconsideration and
any supplement thereto shall be filed within 30 days from the date of
public notice of the *final* Commission action . . . ."[^20] In this
respect, we note that the Branch did not dismiss the application until
March 10, 2002 and that the instant Petition explicitly seeks
reconsideration of the Branch's *anticipated* dismissal of that
application.[^21] Neither the return letter nor Niagara Mohawk's
anticipation that its application would be dismissed constituted a final
Commission action. Instead of seeking reconsideration of a future final
action, we believe that the more appropriate course of action would have
been for Niagara Mohawk to either seek additional time to provide the
requested information to the Branch or timely respond to the return
letter with an explanation of why in its view the requested information
was not necessary for the Branch to act on the application.

6\. Notwithstanding the premature filing of the Petition, however, we
note that, because the Branch dismissed the application without
prejudice, the Commission's Rules permit the licensee to file another
application[^22] seeking the same modification.[^23] Therefore, in the
interest of efficiency, we will herein address the merits of the
Petition at this time.[^24]

7\. We reject the Petition's attempt to fault Commission staff for
Niagara Mohawk's failure to provide a timely response in this matter.
The Commission has continually emphasized that licensees bear the full
responsibility for ensuring that they comply with the terms of their
licenses and with the Commission's Rules. In so doing, the Commission
often reminds applicants, licensees, and other interested parties with
business before the Commission that they may not rely on informal
discussions with and individual representations by Commission staff.
Rather, a strict standard for complying with Commission filing
requirements is necessary to ensure that applicants are treated fairly
and equally.[^25] If we were to accept the Petition's contention that
Niagara Mohawk undertook its "best efforts" to respond to the return
letter,[^26] we are concerned that our action would compromise the
integrity of the requirement that applicants respond to requests for
additional information within sixty days when the Commission returns an
application for the purpose of seeking clarification or additional
information.[^27] The purpose of that requirement is to ensure timely
prosecution and disposition of the application. Niagara Mohawk was given
an opportunity to correct its application by responding to the return
letter, but Niagara Mohawk failed to take advantage of such opportunity.
We therefore find the Petition's stated reason for failing to provide a
timely response in this matter to be insufficient to warrant
reconsideration of the application dismissal.

**IV. CONCLUSION**

8\. For the reasons stated herein, we deny the Petition and affirm the
Branch's dismissal of the application filed by Niagara Mohawk on August
22, 2001 for modification of Conventional Industrial/Business Radio Pool
Station WPKW909, Albany, New York. The Branch acted properly in
dismissing the application after Niagara Mohawk failed to respond to the
return letter.

**V. ORDERING CLAUSES**

9\. **ACCORDINGLY IT IS ORDERED** that pursuant to Sections 4(i) and 405
of the Communications Act of 1934, 47 U.S.C. §§ 154(i), 405, and Section
1.106 of the Commission's Rules, 47 C.F.R. § 1.106, the Petition for
Reconsideration filed by Niagara Mohawk Power Corporation on January 18,
2002 **IS DENIED**.

10\. This action is taken under designated 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]: Niagara Mohawk Power Corporation Petition for Reconsideration
    (filed Jan. 18, 2002) (Petition).

[^2]: FCC File No. 0000568432 (filed Aug. 22, 2001) (Application).

[^3]: Amendment of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90, 95, 97,
    and 101 of the Commission's Rules to Facilitate the Development and
    Use of the Universal Licensing System in the Wireless
    Telecommunications Services, *Report and Order*, WT Docket 98-20, 13
    FCC Rcd 21027 (1998) (*ULS Report and Order*); *see also* Amendment
    of Parts 0, 1, 13, 22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of
    the Commission's Rules to Facilitate the Development and Use of the
    Universal Licensing System in the Wireless Telecommunications
    Services, *Memorandum Opinion and Order on Reconsideration*, 14 FCC
    Rcd 11476 (1999) (modifying the Unified Policy).

[^4]: *ULS Report and Order*, 13 FCC Rcd at 21069 ¶ 92.

[^5]: *See* Wireless Telecommunications Bureau Revises and Begins Phased
    Implementation of Its Unified Policy for Reviewing License
    Applications and Pleadings, *Public Notice*, 14 FCC Rcd 11182 (WTB
    1999) (*Unified Policy Public Notice*). On July 1, 1999, the
    Wireless Telecommunications Bureau (Bureau) began implementing the
    policy as modified. *See id.* The Unified Policy applies to each
    Wireless Radio Service six months after the licensing information
    for that service is implemented in the Bureau's Universal Licensing
    System (ULS). *See id*. at 11191. In this case, licensing
    information for the Industrial/Business Pool of the Private Land
    Mobile Radio Service was implemented in the ULS on December 4, 2000.
    *See* Wireless Telecommunications Bureau (WTB) Implements Phase III
    of Three-Phased Deployment of the Universal Licensing System (ULS)
    for Land Mobile Radio Services on December 4, 2000, *Public Notice*,
    15 FCC Rcd 22013 (WTB 2000). As a result, the effective date of the
    Unified Policy with regard to the Industrial/Business Pool was June
    5, 2001. *See id.* The Unified Policy, therefore, applied to the
    application filed by Niagara Mohawk on August 22, 2001.

[^6]: *Unified Policy Public Notice*, 14 FCC Rcd at 11182.

[^7]: *ULS Report and Order*, 13 FCC Rcd at 21069-70 ¶ 93. *See also*
    Ram Technologies, *Order on Reconsideration*, 16 FCC Rcd 10919 (WTB
    PSPWD 2001) (*Ram*).

[^8]: *Unified Policy Public Notice*, 14 FCC Rcd at 11186-87.

[^9]: At that time, the license for Station WPKW909 was not due to
    expire until August 22, 2002.

[^10]: The application specifically requested assignment of the
    following frequencies: 151.235 MHz, 151.370 MHz, 159.270 MHz, and
    159.420 MHz. Pursuant to 47 C.F.R. § 90.20, the referenced
    frequencies are assigned to the Public Safety Radio Pool. *See* 47
    C.F.R. § 90.20(c)(3).

[^11]: *See* Application, Exhibit 1 (Waiver Request). Absent a waiver,
    Niagara Mohawk is ineligible to hold an authorization in the Public
    Safety Radio Pool. *See, e.g.,* 47 C.F.R. § 90.20(a); *see also*
    Waiver Request at 1.

[^12]: Automated Return Letter, FCC File No. 0000568432 (dated Nov. 8,
    2001).

[^13]: *Id.*

[^14]: *Id.*

[^15]: Petition at 2. December 18, 2001 represented the 40^th^ calendar
    day in the permissible 60-day response window. After that date, the
    permissible window of time included twelve regular business days,
    six weekend days, and two federal holidays.

[^16]: *Id.* at 2.

[^17]: *Id.* at 3.

[^18]: Automated Dismissal Letter, FCC File No. 0000568432 (dated Mar.
    11, 2002).

[^19]: Petition at 1 n.2.

[^20]: 47 C.F.R. § 1.106(f) (emphasis added).

[^21]: *See* Petition at 1.

[^22]: *See* 47 C.F.R. § 1.934(c).

[^23]: Niagara Mohawk assigned the license for Station WPKW909 to
    National Grid USA Service Company, Inc. (National Grid USA). *See*
    FCC File No. 0000597917 (filed Sept. 24, 2001) (amended application
    for assignment of authorization); FCC File No. 0000757051 (filed
    Feb. 1, 2002) (consummation notification). National Grid USA
    thereafter filed a renewal only application. *See* FCC File No.
    0000910045 (filed June 3, 2002). The renewal only application was
    granted on June 4, 2002.

[^24]: *See generally* Goosetown Enterprises, Inc., *Memorandum Opinion
    and Order*, 16 FCC Rcd 12792 (2001).

[^25]: *See, e.g., Ram,* 16 FCC Rcd at 10922 ¶ 8; First Auction of
    Interactive Video and Data Service (IVDS) Licenses, *Memorandum
    Opinion and Order*, 11 FCC Rcd 1134, 1135 ¶ 7 (1996).

[^26]: Petition at 4.

[^27]: *See Ram*, 16 FCC Rcd at 10922 ¶ 8; *IVDS Auction MO&O,* 11 FCC
    Rcd at 1135 ¶ 7; *see also Unified Policy Public Notice*, 14 FCC Rcd
    at 11186.