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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Application of ) FCC File No. D031374 Motorola SMR, Inc. ) 900 MHz SMR Authorization ) New York MTA ) ) Auction ID: 7 ) MEMORANDUM OPINION AND ORDER Adopted: May 7, 1997 Released: May 7, 1997 By the Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. Before us is a Petition to Deny ("Petition") by Fleet Talk, Inc. ("Fleet Talk") filed on June 5, 1996, requesting that the Wireless Telecommunications Bureau deny the application of Motorola SMR, Inc. ("Motorola") for authority to operate on 900 MHz specialized mobile radio ("SMR") Frequency Block F in the New York Major Trading Area ("MTA"). Fleet Talk urges denial of this application because the grant of Motorola's application allegedly would place Motorola in violation of a Consent Decree reached between the United States Department of Justice ("DOJ"), Motorola, Inc., and Nextel Communications, Inc. ("Nextel"). Motorola also filed a Motion to Strike, which seeks to strike Fleet Talk's reply pleading as untimely. For the reasons set forth below, Motorola's application is granted, Fleet Talk's Petition is denied, and Motorola's Motion to Strike is granted. II. BACKGROUND 2. On July 25, 1995, DOJ, Motorola, Inc. and Nextel entered into a Consent Decree resulting from an agreement between Motorola, Inc. and Nextel to: (1) transfer ownership of a substantial portion of Motorola's SMR business to Nextel; and, (2) transfer control of most of Motorola's remaining SMR business to Nextel. The Consent Decree states, in pertinent part, that Motorola and Nextel, collectively, may not hold or acquire licenses for more than thirty 900 MHz SMR channels in any one of twelve cities, including New York City, without the prior written permission of DOJ. As defined in the Consent Decree, a "900 MHz [SMR] channel" means a trunked or conventional channel or frequency pair in the 896-901/935-940 MHz bands within a twenty-five mile radius of the geographic center of one of the twelve cities. 3. Motorola was the high bidder in the auction of the 900 MHz F Block of the New York City MTA. On May 6, 1996, the Commission released a Public Notice identifying Motorola's F Block application for the New York MTA as accepted for filing. 4. On June 5, 1996, Fleet Talk filed its Petition, arguing that the grant of Motorola's application would cause both Motorola, Inc. and Nextel to be in violation of the Consent Decree because Motorola, Inc. would hold more than thirty 900 MHz SMR channels within a twenty- five mile radius of New York City. According to Fleet Talk, grant of Motorola's application would violate the Consent Decree and therefore would be contrary to the public interest. 5. On July 3, 1996, Motorola filed a Response urging dismissal of the Petition on the grounds that: (1) Motorola's application complies with all applicable Commission rules and policies; (2) the Commission has no authority to interpret or enforce the Consent Decree because it was not a party to the underlying Consent Decree; (3) the grant of the application would not violate the Consent Decree because the grant would not enable Motorola to provide coverage within a twenty-five mile radius of the geographic center of New York City; and, (4) the Consent Decree prohibits only the placement of transmitter sites, not coverage, within the twenty-five mile radius. 6. On June 27, 1996, three days after the reply deadline, Fleet Talk filed a Reply reiterating its position that the license grant would violate the Consent Decree. On July 3, 1996, Motorola filed a Motion to Strike the Reply on the grounds that the Reply was untimely. Motorola also used the Motion to respond on the merits to the issues raised in the Reply. On July 9, 1996, Fleet Talk filed an Opposition to the Motion to Strike ("Opposition"), which acknowledges the lateness of its Reply and attributes it to an administrative oversight by Fleet Talk's law firm. Alternatively, Fleet Talk requests that we treat the Opposition as a motion to accept a late-filed pleading. III. DISCUSSION 7. At the outset, we note that the Commission was not a party to the DOJ/Motorola/Nextel Consent Decree and has no authority to interpret or enforce its terms. Thus, it is beyond the scope of this proceeding for us to determine whether the grant of Motorola's license would violate the terms of the Consent Order. That responsibility lies with the Department of Justice. Fleet Talk offers no authority for the Commission to render such an interpretation or issue an enforcement action. Accordingly, the Commission will forward a copy of this Order to the Department of Justice for their review. 8. The Commission does have authority, consistent with its public interest obligations, to examine the competitive effects of a license grant. As we have on numerous past occasions, the Commission is free to consider whether an authorization has anti-competitive effects. After reviewing the record, we find the grant of Motorola's application for authority to operate on 900 MHz SMR Frequency Block F in the New York MTA will serve the public interest and will not have anti-competitive effects in the MTA. 9. The parties are in agreement that the Commission has placed no limitations on the number of 900 MHz SMR MTA licenses that may be acquired by an entity in any geographic area, and that grant of Motorola's application does not violate the Commission's CMRS ownership or spectrum aggregation limits. The CMRS spectrum aggregation rule imposes a 45 MHz limit on the amount of PCS, cellular, and SMR spectrum classified as CMRS in which an entity may have an attributable interest in any geographic area at any point in time. However, the CMRS spectrum cap is not implicated by Motorola's application for a 900 MHz SMR license in the New York MTA because neither Motorola nor any company in which Motorola holds an attributable interest is a PCS or cellular licensee. 10. Based on the record, we find no likelihood that the grant of this application will have anti-competitive effects. By granting Motorola authority to operate in this market, we would be introducing another wireless competitor to the cellular and PCS services already operating in this MTA. We believe that grant of the Motorola application advances the public interest by promoting wireless competition in the New York metropolitan area. 11. We also conclude that Motorola's Motion to Strike should be granted. The Public Notice listing Motorola's application states that "replies to oppositions must be filed no later than 5 days after the time for filing oppositions has expired." Motorola's Response was filed on June 17, 1996, and was served by hand delivery that same day. Thus, under the Commission's rules, Fleet Talk's Reply was due June 24, 1996 but was not filed until June 27, 1996. Our rules disfavor the granting of extensions of time, especially those requested post hoc, and late- filed pleadings are accepted only in emergency situations. No such emergency situation was presented by Fleet Talk. Accordingly, we grant Motorola's motion. We also do not consider the substantive arguments raised by Motorola in its Motion to Dismiss, but rely solely on the presentation of issues in Fleet Talk's Petition and Motorola's Response. IV. ORDERING CLAUSE 12. IT IS ORDERED that, pursuant to Sections 4(i) and 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309(d) and Sections 0.331, 1.2108 of the Commission's Rules, 47 C.F.R.  0.331, 1.2108, the application of Motorola SMR, Inc. is GRANTED, the Petition to Deny filed by Fleet Talk, Inc. on June 5, 1996 is DENIED, and the Motion to Strike filed by Motorola SMR, Inc. on July 3, 1996 is GRANTED. 13. IT IS FURTHER ORDERED that, pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154 (i) a copy of this Order will be forwarded to the Department of Justice. FEDERAL COMMUNICATIONS COMMISSION Daniel B. Phythyon Acting Chief, Wireless Telecommunications Bureau