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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 Applications of ) ) HARDROCK CONCRETE PLACEMENT ) FCC File No. D091737 COMPANY ) ) to Operate a 900 MHz Industrial/Business ) Radio Station in Phoenix, Arizona ) ) LAIDLAW TRANSIT SERVICES, INC. ) FCC File No. D090811 ) to Operate a 900 MHz Industrial/Business ) Radio Station in Tempe, Arizona ) ) ALAN R. OTTO d/b/a OTTO TRUCKING ) FCC File No. D092800 ) to Operate a 900 MHz Industrial/Business ) Radio Station in Phoenix, Arizona ) ) VALLEY COACH ATC VANCOM CORP. ) FCC File No. D090814 ) to Operate a 900 MHz Industrial/Business ) Radio Station in Phoenix, Arizona ) ) ) ORDER ON RECONSIDERATION Adopted: January 3, 2000 Released: January 5, 2000 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. In this Order on Reconsideration, we address a petition for reconsideration (Petition) filed by Creative Airtime Services, LLC (Creative Airtime) on August 27, 1998 of the decision by the Licensing and Technical Analysis Branch (Branch), Public Safety and Private Wireless Division to grant the applications of Laidlaw Transit Services, Inc. (Laidlaw Transit) and Valley Coach ATC Vancom Corp. (Valley Coach). The Petition also seeks reconsideration of the Branch's decision to return the applications of Hardrock Concrete Placement Company (Hardrock Concrete) and Alan R. Otto d/b/a Otto Trucking (Otto Trucking) to the applicants to allow Hardrock Concrete to properly sign its application and Otto Trucking to explain discrepancies in its application and/or amend its application. For the reasons discussed herein, we partially grant the Petition. II. BACKGROUND 2. Between August 29, 1997 and October 1, 1997, the applications of Hardrock Concrete, Laidlaw Transit, Valley Coach and Otto Trucking were filed with the Federal Communications Commission (FCC). On February 26, 1998, Creative Airtime requested that the Branch immediately stop processing the Hardrock Concrete application or rescind the grant if the application already had been granted. Creative Airtime alleged that the Kenney family was engaging in a fraudulent scheme to obtain numerous exclusive 900 MHz frequency assignments in the Phoenix, Arizona area in violation of the Commission's Rules. Creative Airtime further alleged that the FCC was investigating these allegations not only with respect to the Hardrock Concrete application but also in connection with other applications that were filed on behalf of the Kenney family. 3. On May 1, 1998, Hardrock Concrete argued that the Branch should ignore Creative Airtime's letter request and grant its application because the letter was without merit and lacked proper form. On May 11, 1998, Creative Airtime replied with several reasons as to why we should reject the Hardrock Concrete applications. First, Creative Airtime stated that Robert Kenney was properly served with its letter of February 26, 1998. Second, it noted that although the signatures appear to be different on three separate submissions to the FCC, these submissions were purportedly signed by "Robert Kenney". Third, it contended that the familial relationships involved in several applications were never explained to the FCC. Finally, Creative Airtime alleged that the Kenney family was fraudulently attempting to obtain channels for which it was not eligible. 4. On June 25, 1998, Hardrock Concrete asserted that Creative Airtime made unfounded and unsupported attacks on applications filed by a number of applicants. Hardrock Concrete further asserted that it had an urgent need for the requested frequencies, that Creative Airtime's allegations were unsupported as required by the Commission's Rules and that Creative Airtime's letter was defective. Finally, Hardrock Concrete asserted that Robert Kenney, an owner and officer of Hardrock Concrete, approved and authorized the signature on the application at the time it was made. 5. On July 30, 1998, the Branch notified Creative Airtime that it was taking action with respect to a number of applications, including those submitted by Valley Coach, Laidlaw Transit, and Otto Trucking. Specifically, the Branch determined that Creative Airtime had not raised any significant issues with respect to the applications of Valley Coach and Laidlaw Transit Services. With respect to the Otto Trucking application, the Branch determined that it had concerns with respect to the name of the applicant, the applicant type and the signature on the application. Consequently, the Branch decided to return the application to Otto Trucking to provide the applicant an opportunity to explain the discrepancy and/or amend the application if appropriate. 6. On August 10, 1998, the Branch concurred with Creative Airtime's contention that the Hardrock Concrete application was not properly signed by the applicant. As a result, the Branch returned the application to Hardrock Concrete for correction in accordance with the former Private Radio Bureau's policy. Additionally, the Branch determined that the Hardrock Concrete application proposed to load 140 units on the requested channels. Because 140 units only supported a grant of two channels and not the requested three channels, the Branch determined that granting two channels would be appropriate if Hardrock Concrete resubmitted a properly completed application. 7. On August 27, 1998, Creative Airtime requested reconsideration of both the Branch July 30th Letter and the Branch August 10th Letter. Creative Airtime alleged that the conclusions of the Branch were erroneous and failed to consider the applications in their proper context. Specifically, Creative Airtime alleges that because the applications are closely linked together, the Branch cannot separate the applications that may be processed from those applications that require further investigation. Accordingly, Creative Airtime asserts that all of the applications, when viewed collectively, constitute a coordinated filing scheme. 8. Creative Airtime notes that although the Branch agreed that further investigation was necessary to investigate the allegation that Steve Kenney may have filed applications on behalf of minor children, the Branch nonetheless did not find troubling the signature of Steve Kenney on the Otto Trucking application as an employee. Additionally, Creative Airtime notes that the signature on the Hardrock Concrete application appears similar to the signatures on the applications of relatives of Steve Kenney (including minor children). Creative Airtime further alleges that we should determine the real-party-in-interest for the applications by requesting information concerning the payment of legal fees with respect to the applications and considering the similarities in the applications. 9. On September 9, 1998, Hardrock Concrete, Otto Trucking and other applicants responded to Creative Airtime's request for reconsideration. They asserted that no scheme or deception exists with respect to the subject applications, that Creative Airtime has not raised any new issues, and that the applications do not violate any Commission rule. As a result, these applicants contend that all the applications should be treated similarly and ultimately granted. Finally, the applicants contend that the age of some of the applicants was not relevant because there was no minimum age in the Commission's rules for the license that the applicants applied to operate. On September 10, 1998, the Branch returned Otto Trucking's application to the applicant for correction. 10. On September 14, 1998, Creative Airtime filed a letter to supplement its reconsideration request. Creative Airtime sought to provide additional information concerning Otto Trucking and Steve Kenney. 11. On October 16, 1998, Hardrock Concrete re-submitted its application with the signature of Robert Kenney. On November 6, 1998, Otto Trucking submitted an amended application listing its name as Otto Trucking, Inc. III. DISCUSSION 12. Creative Airtime alleges that the Kenney family was engaging in a fraudulent scheme to obtain numerous exclusive 900 MHz frequency assignments in violation of the FCC's rules through the applications that were filed by Laidlaw Transit, Valley Coach, Hardrock Concrete and Otto Trucking. Creative Airtime asserts that we should not grant these applications because they are related to an on-going investigation of the Kenney family for violation of the Commission's Rules. A. Laidlaw Transit and Valley Coach 13. With regards to the Laidlaw Transit and Valley Coach applications, Creative Airtime specifically alleges that the applications were prepared by the same person and filed during the same time period, each for the same number of channels and mobile units. We find that these allegations alone do not constitute a violation of the Commission's Rules that would warrant not granting the applications. Section 1.945 of the Commission's Rules provides that we will grant an application for a station authorization without a hearing if it is proper upon its face and if from an examination of the application and supporting data, pleadings filed or other matters that we may officially notice that: a. There are no substantial or material questions of fact; b. The applicant is legally, technically, financially, and otherwise qualified; c. A grant of the application would not involve modification, revocation or non-renewal of any other existing license; d. A grant of the application would not preclude the grant of any mutually exclusive application; and e. A grant of the application would serve the public interest, convenience and necessity. 14. Although our review of the Laidlaw Transit and Valley Coach applications shows that they are indeed similar and were possibly prepared by the same entity, we do not find that Creative Airtime has made a prima facie showing that a grant of the applications would be inconsistent with the public interest, convenience and necessity. Additionally, Creative Airtime has not shown how these similarities amount to a substantial or material question of fact that amounts to a defect in the application or a disqualification of the applicant. Accordingly, the petition is denied with respect to the Laidlaw Transit and Valley Coach applications. B. Otto Trucking 15. Creative Airtime asserts that the application of Otto Trucking should not be granted because Steve Kenney signed the Otto Trucking application and the FCC has acknowledged that it is investigating the actions of Steve Kenney in relation to applications that he may have filed on behalf of minor children. In sum, Creative Airtime asserts that no application should be granted if Steve Kenney is a party to the application because of the pending Commission investigation. As noted previously, there is no active FCC investigation concerning Creative Airtime's allegations. 16. Former Sections 90.139 and 90.141 of the Commission's Rules permitted the return of an application or a request for additional information in order to determine whether the grant of an application was in the public interest. Accordingly, the Branch requested additional information from Otto Trucking to make this determination. Otto Trucking demonstrated that it was a large business that needed the requested channels. Furthermore, Otto Trucking provided evidence that at the time the application was signed, Steve Kenney was an employee of the company. On November 6, 1998, Otto Trucking amended its application to correct the deficiencies. As a result, we find that Creative Airtime has failed to make a prima facie showing that a grant of the Otto Trucking application would be inconsistent with the public interest. Consequently, upon review of the information provided, we find that grant of the application is in the public interest. C. Hardrock Concrete 17. Creative Airtime asserts and Hardrock Concrete admits that Hardrock Concrete's original application was not signed by Robert Kenney as the application indicated. Hardrock Concrete amended its application to provide an original signature of Robert Kenney. At the time Hardrock Concrete filed its application, the Commission's Rules required that an application form will be considered defective if it was not signed in accordance with former Section 1.913 of the Commission's Rules. Because this section required the original hand-written signature of the applicant on the application form, Hardrock Concrete's application was defective as filed and could not be accepted for filing. 18. Hardrock Concrete alleges that because Robert Kenney approved and authorized the signature on the application at the time it was made, we should accept this application. Although the Branch disagreed, it allowed Hardrock Concrete to amend its application. We believe that Section 1.913(b) of the Commission's Rules controls the acceptance or dismissal of this Hardrock Concrete application. Under Section 1.913(b), the Commission permits only the applicant's attorney to sign the application in case of the physical disability of the applicant or the applicant's absence from the United States. To allow the attorney to sign the application form, the attorney must separately set forth the reason why the application is not signed by the applicant. However, in this instance Hardrock Concrete is not alleging that its attorney signed the application for Robert Kenney. Thus, we conclude that Hardrock Concrete failed to comply with the signature requirements of Section 1.913(b) of the Commission's Rules. 19. Finally, we conclude that under these circumstances, Hardrock Concrete may not avail itself of the former Private Radio Bureau's policy of allowing applicant's to correct their applications by supplementing an original signature. This policy provided an additional opportunity for applicants to re-submit an application that was originally submitted without a signature. Under this policy, the applicant would not forfeit its application fee. Hardrock Concrete's application was signed, just not by the applicant. Consequently, we conclude that this policy does not apply to the situation presented here. Accordingly, we find that the application as submitted by Hardrock Concrete was not signed by the applicant as required by Section 1.913 of the Commission's Rules. Therefore, the application is defective on its face and will be dismissed. IV. CONCLUSIONS 20. Upon review of the applications, we find that Creative Airtime has not shown any reason that the applications of Laidlaw Transit and Valley Coach should not be granted. Accordingly, the decision of the Branch is affirmed with respect to these two applications. Additionally, we find that grant of the Otto Trucking application is in the public interest. However, we find that the Hardrock Concrete application is defective on its face for failure of the applicant to sign the application and must be dismissed. Consequently, we grant Creative Airtime's petition with respect to the Hardrock Concrete application. V. ORDERING CLAUSES 21. Accordingly, IT IS 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 Creative Airtime Services LLC on August 27, 1998 IS GRANTED to the extent provided in this Order. 22. IT IS FURTHER ORDERED that pursuant to Sections 4(i), 309 and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, 405, and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, the application of Hardrock Concrete Placement Company filed on August 29, 1997 IS HEREBY DISMISSED. 23. IT IS FURTHER ORDERED that pursuant to Sections 4(i), 309 and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, 405, and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, the application of Alan R. Otto d/b/a Otto Trucking filed on October 1, 1997 IS HEREBY GRANTED. 24. IT IS FURTHER ORDERED that pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 1.106(f) of the Commission's Rules, 47 C.F.R. S 1.106(f) that the Supplement to the Petition for Reconsideration filed by Creative Airtime Services LLC on September 14, 1998 IS DISMISSED. 25. IT IS FURTHER ORDERED that pursuant to Section 4(i) of the Communications Act, as amended, 47 U.S.C.  154(i) and Section 1.106(f) of the Commission's Rules, 47 C.F.R. S 1.106(f) that the Response to the Supplement to the Petition for Reconsideration filed by Alan R. Otto d/b/a Otto Trucking on September 23, 1998 IS DISMISSED. 26. 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