Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | FCC File No. D132591         |
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| **TRANSIT MIX CONCRETE AND       | ) |                              |
| MATERIAL COMPANY**               | * |                              |
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| Assignment of License for        |   |                              |
| Station WNQJ776, Huntsville,     | * |                              |
| Texas                            | * |                              |
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| Request for Renewal of License   | * |                              |
| for Station WNQJ776, Huntsville, | * |                              |
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**ORDER**

**Adopted: October 17, 2000 Released: October 19, 2000**

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

1.  *Introduction*. We have before us a petition for reconsideration
    (Petition) filed by Transit Mix Concrete and Material Company
    (Transit Mix) on February 14, 2000. [^1] Transit Mix requests
    reconsideration of the dismissal of the above-captioned application
    by the Chief, Licensing and Technical Analysis Branch (Branch),
    Public Safety and Private Wireless Division.[^2] The subject
    application requested assignment of the license for Station WNQJ776
    from Lafarge Concrete (Lafarge) to Transit Mix. For the reasons
    discussed herein, we deny the Petition. In addition, we dismiss
    Lafarge's associated request for renewal of the license for Station
    WNQJ776.

2.  *Background*. On September 18, 1999, Lafarge's license for 800 MHz
    Business Radio Service Station WNQJ776 in Huntsville, Texas expired
    by its terms because Lafarge had failed to submit a renewal of
    license application prior to the scheduled date of expiration for
    its Station WNQJ776 license. On October 14, 1999, Transit Mix filed
    an FCC Form 600[^3], signed by Richard L. Smith, Jr. of Transit Mix,
    seeking a license for Station WNQJ776. Attached to the FCC Form 600
    was a completed FCC Form 1046,[^4] signed by Richard Townsend of
    LaFarge, requesting assignment of the license for Station WNQJ776
    from Lafarge to Transit Mix. Upon review of both submissions, the
    Branch determined that the license for Station WNQJ776 had expired,
    whereupon the Branch dismissed the applications on the basis that an
    expired license could not be assigned.[^5]

3.  In its Petition, Transit Mix states that " . . . there is no
    specific Commission Rule Section or notification . . . stating that
    station reinstatement and reassignment cannot be requested on one
    and/or the same FCC From 600 application."[^6] Transit Mix,
    therefore, contends that neither it nor Lafarge had any basis to
    know that the application would be deemed defective by the
    Commission.[^7] Attached to the Petition was a completed application
    FCC Form 600, dated February 3, 2000, and signed by Dickie Schilhab,
    Vice-President and General Manager of Lafarge, requesting
    reinstatement of license for Station WNQJ776.[^8]

4.  *Discussion*. Based on our review of the record, we find that the
    Branch's action in this matter was correct. In the instant Petition,
    Transit Mix claims that LaFarge's intention was to apply for
    reinstatement of the license for Station WNQJ776 and,
    simultaneously, to assign the license to it, Transit Mix.[^9] We
    note, as an initial matter, that the Commission's rules no longer
    provide for reinstatement of expired licenses. Thus, to the extent
    that Transit Mix contends that the October 14, 1999 application
    should be treated as a reinstatement application, we find that it
    must be dismissed as defective on the basis that the Commission's
    rules no longer provide for the filing of such applications.

5.  We nonetheless note that the Commission has adopted a policy
    regarding the treatment of late-filed renewal applications in the
    wireless services.[^10] Under this policy, renewal applications that
    are filed up to thirty days after the expiration date of the license
    will be granted *nunc pro tunc* if the application is otherwise
    sufficient under our rules. The licensee, however, may be subject to
    an enforcement action for untimely filing and unauthorized operation
    during the time between the expiration of the license and the
    untimely renewal filing.[^11] Applicants who file renewal
    applications more than thirty days after the license expiration date
    may also request that the license be renewed *nunc pro tunc.* Such
    requests, however, will not be routinely granted, will be subject to
    stricter review, and also may be accompanied by enforcement action,
    including more significant fines or forfeitures.[^12]

6.  To the extent that Lafarge contends that the October 14, 1999
    application was intended to be a late-filed renewal application, we
    conclude that it must be dismissed. In this connection, we find that
    the FCC Form 600 application is defective because it was not signed
    by LaFarge, the licensee of record. In this regard, we note that
    Transit Mix signed the FCC Form 600 as the applicant and did not
    have standing to request renewal of a license that it did not
    possess. Further, we are not persuaded by Transit Mix's contention
    that Lafarge, as assignor, was a party to the October 14, 1999,
    filing and had requested reinstatement of Station WNQJ776 by virtue
    of Mr. Townsend's signature on the associated FCC Form 1046.[^13] We
    find that a licensee's signature on an associated FCC Form 1046 does
    not constitute a proper request for renewal of a license. The
    purpose of FCC Form 1046 is to assign an existing and valid
    authorization.[^14] As a result, we conclude that the FCC Form 1046
    may not be used to apply for renewal of a license.[^15] Thus, we
    concur with the Branch's determination that the October 14, 1999
    application was not a renewal application for Station WNQJ776 and
    find that its subsequent dismissal of the application was correct.

7.  In addition, we note that Transit Mix submitted a FCC Form 600,
    signed by a Lafarge representative, in connection with its Petition.
    We find that the February 14, 2000 FCC Form 600 is a late-filed
    renewal application that should be analyzed under the Commission's
    policy for treatment of such applications. In this regard, we note
    that this renewal application was submitted more than thirty days
    after the expiration of the license for Station WNQJ776. Transit Mix
    argues that it should receive the same relief as the licensees in
    *Andrea Hall*.[^16] We have reviewed *Andrea Hall* and find it to be
    inapposite to this matter. Unlike the licensees in *Andrea
    Hall*,[^17] Lafarge did not submit a waiver request seeking our
    acceptance of its late-filed renewal application. In the absence of
    such waiver request, we conclude that Lafarge's request for renewal
    of the license for Station WNQJ776 must be dismissed as defective
    because it was submitted after the expiration of the license.[^18]

8.  Accordingly, 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,
    that the petition for reconsideration, filed by Transit Mix Concrete
    and Material Company on February 14, 2000, IS DENIED.

9.  IT IS FURTHER ORDERED, pursuant to Sections 4(I) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(I), 309,
    that the FCC Form 600, dated February 3, 2000 and

submitted as an attachment to Transit Mix Concrete and Material
Company's petition for reconsideration, IS DISMISSED.

10. 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]: Petition for Reconsideration (filed Feb. 14, 2000) (Petition).

[^2]: *Id*. at 1.

[^3]: FCC Form 600 is the application form for a Mobile Radio Service
    authorization.

[^4]: FCC Form 1046 is the application form for an assignment of a
    station license.

[^5]: Notice of Application Dismissal Letter, dated January 25, 2000,
    from Chief, Licensing and Technical Analysis Branch to Transit Mix
    Concrete and Material Company.

[^6]: Petition at 2.

[^7]: *Id*.

[^8]: *Id*.

[^9]: *Id*.

[^10]: *See* Biennial Regulatory Review -- Amendment of Parts 0, 1, 13,
    22, 24, 26, 27, 80, 87, 90, 95, and 101 of the Commission's Rules to
    Facilitate Development and Use of the Universal Licensing System in
    the Wireless Telecommunications Services, *Memorandum Opinion and
    Order on Reconsideration*, WT Docket No. 98-20, 14 FCC Rcd 11476,
    11485 (1999).

[^11]: *Id*.

[^12]: *Id*. at 11486. In determining whether to grant a late-filed
    renewal application, we take into consideration all of the facts and
    circumstances, including the length of the delay in filing, the
    reasons for the failure to timely file, the potential consequences
    to the public if the license should terminate, and the performance
    record of the licensee. *Id*. at 11485.

[^13]: *See* Petition at 2.

[^14]: *See* 47 C.F.R. §§ 1.913, 1.948 (1999). FCC Form 603 is now used
    for filing an application for assignment of license and transfer of
    control of entities holding authorizations.

[^15]: *See* Applications of Metacomm Cellular Partners, *et. al.,
    Order,* 13 FCC Rcd 12192 (WTB 1998) (Metacomm). In Metacomm, the
    Bureau determined that the filing of Form 489 was not an appropriate
    means of seeking authorization to construct new cell sites. Rather,
    "\[w\]here Commission authorization is required for a cellular
    licensee to add a new cell site, the licensee must seek
    authorization by filing a Form 600 . . . ." *Id.* at 12198. The
    Bureau rejected Metacomm's argument that its Form 489 submission was
    an application, stating that Metacomm misunderstood the purpose of
    Form 489. *Id.*

[^16]: *See* Andrea Hall and David Fitts, *Order*, 15 FCC Rcd 710 (CWD
    2000).

[^17]: *See id*.

[^18]: 47 C.F.R. §§ 1.934(d) and (f) (1999).