**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of the Application of )

)

S&S EXCAVATING ) FCC File No. D011399

)

and )

)

MOBILE RADIO )

COOPERATIVE ASSOCIATION )

)

For Assignment and Modification )

of License for Station WPFP263 )

# ORDER

## Adopted: March 15, 2000 Released: March 16, 2000 

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

1\. On December 21, 1994 the Wireless Telecommunications Bureau (Bureau)
granted S&S Excavating (S&S) a license for Business Radio
Service-Conventional Station WPGD672. The authorization permitted S&S to
operate six mobile units and one control station on the frequency pair
898/937.7500 MHz.[^1] On July 21, 1995, Hyland Transit Corp. (Hyland)
filed an application for a new Business Radio Service-Conventional
station at New York City, three miles from S&S's Station WPGD672. On
October 17, 1995, the Land Mobile Branch (Branch) of the Office of
Operations of the Bureau granted Hyland's application for the use of
twenty-four mobile units, a base station and one control station on the
frequency pair 898/937.7500 MHz.

2\. On December 8, 1995, the Personal Communications Industry
Association (PCIA) submitted an application to the Bureau in which S&S
sought to assign Station WPGD672 to Mobile Radio Cooperative Association
(MRCA).[^2] In addition, MRCA sought to modify the license to increase
the number of mobile units to seventy and merge the channel into the
license for MRCA's existing trunked system being operated as station
WPFP263.[^3] Although PCIA refused to coordinate this application, PCIA
submitted the application with an explanation of its refusal and the
current status of applications for the frequency pair.[^4] On April 1,
1996, Hyland filed a petition to dismiss or deny the application for
assignment and modification of S&S's license.[^5] On April 9, 1996, the
Branch dismissed the assignment and modification application.[^6]

3\. On May 3, 1996, MRCA filed a petition for reconsideration of the
dismissal of MRCA's application for modification of the license for
Station WPFP263 at New York, Morristown and Plainview, New York.[^7]
Concurrent with MRCA's Petition for Reconsideration, S&S and MRCA filed
an application for review[^8] of the Branch's denial of S&S and MRCA's
petition for reconsideration[^9] which challenged the Bureau's October
17, 1995 action authorizing Hyland to operate Station WPIQ472 on
frequency 937.750 MHz.[^10]

4\. S&S sought to modify its station by merging it into MRCA's trunked
system. However, because Hyland's conventional system is operating on
this frequency, S&S' proposed modification could not be granted. A
trunked system traditionally receives exclusive use of its frequency in
the area of its operation at the time a license is granted.[^11]
Furthermore, a trunked system cannot comply with the monitoring
requirements of Section 90.403(e) of the Commission's Rules due to the
possibility of creating harmful interference.[^12] Consequently, the
grant of Hyland's application precluded grant of the modification
application filed by S&S and MRCA because MRCA requires exclusive use of
the channel for its trunked system.

5\. MRCA requested that the dismissal of its application be held in
abeyance, pending action by the Commission on S&S and MRCA's application
for review of the grant of the Hyland application.[^13] MRCA submitted
no other justification for relief. On March 13, 2000, the Commission
denied S&S and MRCA's application for review.[^14] Accordingly, we also
deny MRCA's petition for reconsideration because the Branch dismissal of
the application was in accordance with the Commission's Rules. Finally,
we dismiss Hyland's petition to dismiss or deny the Petitioners'
assignment and modification application as moot because the application
has been dismissed by the Branch.[^15]

6\. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 309
of the Communications Act of 1934 as amended, 47 U.S.C. §§ 154(i), 309
and Section 1.939 of the Commission's Rules, 47 C.F.R. § 1.939, the
Petition to Dismiss or Deny, filed by Hyland Transit Corp. on April 1,
1996, IS DISMISSED AS MOOT.

7\. IT IS FURTHER 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 of the Commission's Rules, 47 C.F.R. § 1.106, the Petition
for Reconsideration, filed by Mobile Radio Cooperative Association on
May 3, 1996, IS DENIED.

8\. This action is taken under delegated authority pursuant to Section
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]: Letter from Terry Fishel, Chief, Land Mobile Branch, to Dennis C.
    Brown, Counsel for Petitioners at 1 ¶ 2 (April 3, 1996) (Branch
    Denial). This letter dismissed Petitioners' Petition for
    Reconsideration and the Motion for Stay.

[^2]: Mobile Relay Cooperative Association Application for Mobile Radio
    Services Authorization (filed Dec. 8, 1995). In the above-captioned
    proceeding, MRCA referred to itself as Mobile Relay Cooperative
    Association. However, in later proceedings, the name Mobile Radio
    Cooperative Association was used. MRCA will be used to refer to this
    association under both its former and current name.

[^3]: Branch Denial at 1 ¶ 3.

[^4]: Letter from Garrie C. Losee, Product Manager for PCIA, to Terry
    Fishel, Chief, Land Mobile Branch (Dec. 5, 1995).

[^5]: Hyland Transit Corp., Petition to Dismiss or Deny (filed April 1,
    1996).

[^6]: Letter from Michael Regic, for Chief Land Mobile Branch, to MRCA
    (filed April 9, 1996) (Notice of Application Dismissal).

[^7]: Letter from Dennis C. Brown, Counsel for Mobile Relay Cooperative
    Association, to the Federal Communications Commission (May 3,1996)
    (MRCA Petition for Reconsideration).

[^8]: Mobile Radio Cooperative Association and S&S Excavating Company,
    Application for Review (filed May 3, 1996).

[^9]: Mobile Radio Cooperative Association and S&S Excavating Company,
    Petition for Reconsideration (filed Nov. 13, 1995).

[^10]: Branch Denial at 1 ¶ 1.

[^11]: *See* Trunking in the Private Land Mobile Radio Services for More
    Effective and efficient Use of the Spectrum, PR Docket No. 87-213,
    *Report and Order*, 5 FCC Rcd 4016, 4016-17 ¶ 3.

[^12]: *See* 47 C.F.R. § 90.403(e).

[^13]: MRCA Petition for Reconsideration at 1.

[^14]: Hyland Transit Corp., *Memorandum Opinion and Order*, FCC 00-77
    (rel. Mar. 13, 2000).

[^15]: Notice of Application Dismissal.