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 Federal  Communications  Commission  DA  02-  2562 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 NIAGARA  MOHAWK  POWER  CORPORATION 


 Application  for  Modification  of  Conventional  Industrial/  Business  Radio  Pool  Station  WPKW909, 
 Albany,  New  York 


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 FCC  File  No.  0000568432 


 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  Commissions  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 


 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  Commissions  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  Commissions  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  Bureaus  Universal  Licensing  System  (ULS).  See  id. 
 (continued.) 
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 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  Commissions  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 


 (Continued  from  previous  page)  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. 
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 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  Commissions  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  Mohawks  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  Commissions  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  Branchs  anticipated  dismissal  of  that  application.  21  Neither  the  return  letter  nor  Niagara  Mohawks  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  Commissions  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 


 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). 
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 7.  We  reject  the  Petitions  attempt  to  fault  Commission  staff  for  Niagara  Mohawks  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  Commissions  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  Petitions  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  Petitions  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  Branchs  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  Commissions  Rules, 
 47  C.  F.  R.    1.106,  the  Petition  for  Reconsideration  filed  by  Niagara  Mohawk  Power  Corporation  on  January  18,  2002  IS  DENIED. 


 (Continued  from  previous  page)  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. 
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 10.  This  action  is  taken  under  designated  authority  pursuant  to  Sections  0.131  and  0.331  of  the  Commissions  Rules,  47  C.  F.  R.    0.131,  0.331. 
 FEDERAL  COMMUNICATIONS  COMMISSION 


 Dwana  R.  Terry  Chief,  Public  Safety  and  Private  Wireless  Division 
 Wireless  Telecommunications  Bureau 
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