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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 ) 29675-CD-P/ML-94 ) 29678-CD-P/ML-94 Applications of MetroCall, Inc. ) 29679-CD-P/ML-94 For Permit and Modification of ) 29974-CD-P/ML-94 License for Additional Facilities to ) 29975-CD-P/ML-94 Operate on 931.0125 MHz at ) 29976-CD-P/ML-94 Morristown, Kingsport, Johnson City, ) 29977-CD-P/ML-94 Brentwood, Chattanooga, Nashville, ) 29990-CD-P/ML-94 Knoxville, Cordova, Memphis, Oliver ) 29991-CD-P/ML-94 Springs, Donnelson, Tennessee ) 29992-CD-P/ML-94 ) 29993-CD-P/ML-94 ) 29994-CD-P/ML-94 ) 29995-CD-P/ML-94 ) 29996-CD-P/ML-94 ) 29997-CD-P/ML-94 MEMORANDUM OPINION AND ORDER Adopted: December 6, 1996 Released: December 6, 1996 By the Chief, Commercial Wireless Division I. INTRODUCTION AND BACKGROUND 1. On November 11, 1994, SMR/USA, Inc. ("SMR/USA") filed a Petition to Deny ("Petition") the above-captioned applications ("Application") of Metrocall, Inc. ("Metrocall") requesting frequency 931.0125 MHz at various locations in Tennessee. SMR/USA states that the Metrocall applications, are "strike filings" designed to block three previously filed SMR/USA applications pending in the same areas that request the same frequency. Although SMR/USA cites only three of its own applications, those filed for Knoxville, Memphis, and Nashville, Tennessee, it has petitioned to deny all fifteen Metrocall applications. 2. We find that insofar as the Petition addresses applications in areas other than those where SMR/USA has competing applications, that SMR/USA lacks standing, and the Petition to Deny is dismissed. Insofar as Metrocall has filed applications in the same areas as SMR/USA, we find that these applications are not "strike filings," and the Petition is denied. II. DISCUSSION 3. Under Section 309(d)(1) of the Communications Act of 1934, as amended, a party in interest may file a petition to deny an application. The petition must contain specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant of the application would be prima facie inconsistent with the public interest, convenience, and necessity. To demonstrate party-in-interest status, the petitioner must plead specific allegations "of `injury in fact' fairly traceable to the conduct complained of and likely to be redressed by the requested relief." SMR/USA states that a grant of the Metrocall applications would preclude a grant of the SMR/USA applications thereby causing an economic injury. A petitioner who is an existing licensee, or a competing applicant in the same market or service area as the petitioned applicant has been found to have standing to challenge the grant of the petitioned application. However, a petitioner that does not hold a license or have an application pending in the same service area in which the petitioned application is filed fails to demonstrate an economic injury that would meet the requirement for standing. While SMR/USA has three pending applications requesting frequency 931.0125, it has petitioned to deny fifteen Metrocall applications. Accordingly, we find that SMR/USA has standing to maintain its Petition against the Metrocall applications filed in Knoxville, Memphis, and Nashville, Tennessee, but does not have standing to maintain its petition against the remaining Metrocall applications. 4. In its Petition, SMR/USA claims that the Metrocall applications are strike filings designed to block the grant of the SMR/USA applications. SMR/USA contends that by filing an application requesting frequency 931.0125, Metrocall has become a mutually exclusive applicant with SMR/USA. This is not the case. Pursuant to Section 22.501(p)(2) of the Commission's Rules, an applicant may file an application for a 931 MHz frequency and indicate a frequency preference, but the Commission is not bound by such requests and may assign any available frequency. Because the Commission is not bound by a stated preference for a particular frequency, applications requesting the same frequency will not be mutually exclusive so long as there is available spectrum in the area at another frequency. In this case, we have determined that sufficient spectrum exists to grant both applications. These applications will be processed under the Commission's current procedures, which call for processing applications in the order in which they were accepted for filing. 5. When determining whether an application is a strike filing, the critical consideration is whether it was filed with the intent to impede, delay, or obstruct another application. Because the Metrocall applications do not conflict with the SMR/USA applications, no such intent is demonstrated here. III. ORDERING CLAUSE 6. Accordingly, IT IS SO ORDERED pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and pursuant to the authority delegated by section 0.331 of the Commission's Rules, 47 C.F.R.  0.331, that the SMR/USA Inc., Petition to Deny IS DISMISSED IN PART AND DENIED. FEDERAL COMMUNICATIONS COMMISSION David L. Furth Chief, Commercial Wireless Division Wireless Telecommunications Bureau