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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 re Application of ) ) CONTACT COMMUNICATIONS, INC. ) ) Authorizations for New Transmitting ) Facilities under Station KNKM569 on ) 931.0125 MHz in the Paging and ) File Nos. 25336-CD-P/ML-95 Radiotelephone Service: ) 25338-CD-P/ML-9 ) 25351-CD-P/ML-95 Abilene, Texas ) Midland, Texas ) San Angelo, Texas ) ORDER ON RECONSIDERATION Adopted: March 23, 1998 Released: March 24, 1998 By the Acting Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. By this Order on Reconsideration, we deny the Petition for Reconsideration ("Petition") filed by Contact Communications, Inc. ("Contact"), on July 5, 1996, and a Supplement to Petition for Reconsideration ("Supplement") on November 14, 1996, of the grant of the above-captioned applications on frequency 931.1125 MHz rather than 931.4625 MHz, the frequency Contact specifically requested. We conclude that Contact has failed to demonstrate that frequency 931.1125 MHz was assigned in error or that reconsideration of the grant of its application is warranted. II. BACKGROUND 2. On December 21 and 28, 1994, the Narrowband Branch issued three Public Notices accepting applications filed by Florida Network USA, Inc. (FNUSA) seeking paging facilities on 931.4625 MHz in San Angelo, Monahans, and Abilene, Texas. American 900 Paging, Inc. (American 900), Contact's predecessor- in-interest, filed applications on January 20, 1995, to expand its existing wide-area system on 931.4625 MHz in Abilene, Midland, and San Angelo, Texas. Contact's applications were accepted for filing on February 8, 1995. The Narrowband Branch subsequently granted FNUSA's applications for San Angelo, Texas, on May 3, 1995, Monahans, Texas on May 17, 1995, and Abilene, Texas, on May 24, 1995. The Narrowband Branch assigned frequency 931.4625 MHz to FNUSA. 3. On June 5, 1996, the Narrowband Branch granted Contact's Abilene and Midland applications on frequency 931.1125 MHz. The Narrowband Branch then granted Contact's San Angelo application on 931.1125 MHz on June 12, 1996. Contact filed a petition for reconsideration on July 5, 1996. III. DISCUSSION 4. Contact alleges in its Petition that the Commission has denied Contact its right to contemporaneous consideration as a mutually exclusive applicant. Contact further claims that its existing wide-area system should have received preference over FNUSA's proposed system. In its Supplement, Contact notes that FNUSA had failed to construct its facilities within the allotted time and that those authorizations had now terminated. Contact alleges that this termination undermined FNUSA's stated preference for the 931.4625 MHz frequency. 5. We have reviewed Contact's Petition and Supplement and find that they should be denied. We could not assign Contact its requested frequency of 931.4625 MHz in Rio Grande City, Alpine, and Del Rio, Texas, because it was unavailable due to the previously filed applications by FNUSA. Therefore, Contact received the frequency of 931.1125 MHz. The Commission is not bound to assign the frequency requested by 931 MHz paging applicants and may assign any available frequency. 6. Contact's reliance upon John D. Word (Word) is misplaced. Contact alleges that in Word we held that existing systems seeking to expand in the 900 MHz systems should receive preference over a new wide- area system. As previously stated, under the Commission's Rules, a 931 MHz applicant may indicate a frequency preference, but the Commission is not bound by frequency requests and may assign any available frequency. In Word, the Commission stated that pursuant to its authority to assign any available frequency, "[W]hen two or more applicants indicate a preference for the same frequency, the Commission's policy is to grant a preference to the existing licensee who already has use of the requested frequency in other areas." Nevertheless, the Commission's policy preference articulated in Word was superseded when changing circumstances forced the Commission to revise its views as to the public interest and the means needed to protect that interest. 7. In the years following the Word decision, the number of 931 MHz paging applications greatly increased. By early 1995, a huge backlog existed because applications outpaced the Commission staff's ability to manually process them. In May of 1995, the Commission announced the Wireless Telecommunications Bureau's plans to use a new software package to reduce the backlog of 931 MHz paging applications. Following a test of the new package and comments received from the public, the Commission issued a second Public Notice releasing the results of the test run on the new software. That Notice indicated that while "[w]ide-area systems would be accommodated to the extent possible," it was of paramount importance to avoid prolonged delay that presently existed in processing applications. In light of the overriding need for administrative efficiency, the Commission retrenched from the policy it had articulated in Word as it recognized that it might no longer be possible to give preference to existing wide-area systems. In fact, it later proved to be impossible to simultaneously give preference to wide-area systems and efficiently allocate the 931 MHz spectrum on a site-by-site basis. As explained in the Public Notice on September 5, 1995, the alogrithm processes 931 MHz applications one at a time, in the order they are received. If a requested frequency is already assigned to another licensee and there are at least as many available frequencies as pending applicants being considered, then the Commission will assign the applicant one of the available frequencies. 8. The Commission received FNUSA's applications before Contact's applications. Thus, FNUSA received its preferred frequency of 931.4265 MHz. We are denying reconsideration notwithstanding the fact that FNUSA has forfeited its right to the frequency by failure to construct within the time required by the Commission's rules. We find that the assignment of alternate frequency 931.1125 MHz to Contact complied with the Commission's rules. In view of the foregoing, we affirm the grant of frequency 931.1125 MHz to Contact and deny its Petition and Supplement. IV. ORDERING CLAUSES 9. Accordingly, pursuant to our authority under sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 405, and section 1.106 of the Commission's rules, 47 C.F.R.  1.106, IT IS ORDERED that the Petition for Reconsideration filed on September 20, 1996, and the Supplement to Petition for Reconsideration filed on November 14, 1996, by Contact Communications, Inc. ARE DENIED. 10. IT IS FURTHER ORDERED that pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), that the Motion to Supplement Petition for Reconsideration filed on November 14, 1996, by Contact Communications, Inc., IS GRANTED. 11. This action is taken pursuant to delegated authority as set forth in section 0.331 of the Commission's rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION Steven E. Weingarten Acting Chief, Commercial Wireless Division Wireless Telecommunications Bureau