******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 ) J. DOERING COMMUNICATIONS )File Nos.32609-CD-P/L-95 )32612-CD-P/ML-95 To Add Facilities on Frequencies ) 454.500 and 454.550 MHz in the ) Public Land Mobile Service ) at Station KNKP397 ) Mt. Lukens, La Canada, California) ) ) ORDER Adopted: December 9, 1996Released: December 9, 1996 By the Chief, Commercial Wireless Division: I. INTRODUCTION 1. J. Doering Communications (Doering) filed the above-captioned applications in May 1995, requesting authority to add Public Land Mobile Service base stations on frequencies 454.500 and 454.550 MHz at Station KNKP397 at Mt. Lukens (La Canada), California. Doering's applications appeared on public notice on June 7, 1995. On July 26, 1996, Pacific Bell (Pacific) filed an Informal Petition to Deny the applications. Because Pacific's petition was filed more than thirty days after Doering's applications appeared on public notice, we will consider Pacific's filing as an informal request for Commission action under Section 1.41 of the rules. After filing requests for extensions of time on August 7, 1995, and September 5, 1995, Doering filed an opposition to the Informal Petition on September 7, 1995. Pacific filed a reply to Doering's opposition on September 19, 1995. For reasons discussed below, we find Pacific is exclusively licensed to use frequencies 454.500 and 454.550 MHz in the Verdugo Peak, California service area. We therefore grant Pacific's Informal Petition and dismiss Doering's applications. II. PLEADINGS 2. Pacific claims that Doering's applications should be dismissed because Pacific, as the licensee of Station KMA400, is exclusively authorized to use frequencies 454.500 and 454.550 MHz in the Verdugo Peak, California service area and because Doering's use of the frequencies would cause significant interference to Pacific's operations. Pacific states that Mt. Lukens is about four miles from and in direct line of sight of Verdugo Peak. 3. In its opposition, Doering argues that Pacific's Informal Petition should be denied, asserting that Pacific failed to file an application to renew its authorization and, as a result, is not presently authorized to operate in the Verdugo Peak area on frequencies 454.500 and 454.550 MHz. Doering further claims that it monitored and detected no Station KMA400 transmissions from Verdugo Peak for several months prior to filing its applications, and that, after its applications appeared on public notice, it detected only a continuous carrier with periodic automated station identification. Doering argues, therefore, that Pacific discontinued operation at the Verdugo Peak site for more than ninety days, causing its authorization to terminate automatically pursuant to Section 22.317. 4. In its reply, Pacific provides evidence that its renewal application included frequencies 454.500 and 454.550 MHz at the Verdugo Peak site and acknowledges that the renewal license initially issued for Station KMA400 did not include the Verdugo Peak site. Pacific asserts that the Commission inadvertently omitted the Verdugo Peak site from the authorization for Station KMA400 and that Pacific requested that the Commission correct the error. Further, Pacific asserts that Doering failed to identify the period of time during which Doering monitored the Verdugo Peak facility for transmission and determined that it was not in operation. Pacific also contends that transmitting a continuous carrier with periodic automated station identification signals is appropriate for the state of operations on those frequencies. Finally, Pacific attaches two declarations to its reply from Michael Siwula, Radio Operations Supervisor for Pacific's Los Angeles Business Unit and Manuel Soto, a supervisor in Pacific's Network Transport Equipment Center located in Anaheim, California, that at no time during 1995 were the Verdugo Peak frequencies out of operation for a period of more than ninety consecutive days. III. DISCUSSION 5. In the Public Land Mobile Services, applicants are eligible only for frequencies that are available as of the time they file their applications. After reviewing the pleadings and the Commission's records, we find that Pacific is presently authorized to operate on frequencies 454.500 and 454.550 MHz at Station KMA400. A thorough search of the Commission's files by Doering for Station KMA400 would have revealed that Pacific has been authorized to operate on these frequencies for at least seventeen years. Pacific's May 18, 1988 renewal application sought deletion of certain 35 MHz facilities and corresponding frequencies from the Verdugo Peak site, but the application did not seek to delete the 454.500 and 454.550 MHz frequencies. Commission records further indicate that the Common Carrier Bureau granted the application on October 27, 1988, and that a license was issued on November 17, 1988. 6. While the license granted on November 17, 1988, omitted certain information provided in the renewal application, including renewal of the 454.500 and 454.550 MHz frequencies, this omission was because of ministerial error by the Commission and has since been corrected. The current license lists the omitted frequencies as authorized channels at the Verdugo Peak site. Moreover, if Doering had thoroughly reviewed the Commission's records, it would have discovered that Pacific had requested renewal of those frequencies and that the Commission granted the renewal. Applicants may not rely on a clerical error or omission in a Commission license as authority for the proposition that a licensee has lost its authorization for particular frequencies. 7. We also reject Doering's contentions that Pacific's authorization should be terminated for non-operation. Doering has failed to provide evidence substantiating its claim that Pacific discontinued service at Verdugo Peak for ninety consecutive days. Although Doering claims to have monitored the frequencies for transmissions, it has not specified the time period during which the monitoring occurred or supported its claim with affidavits from persons with personal knowledge of the facts alleged. Because Doering's assertions are unsubstantiated, we find there is no basis on which to conclude that Pacific has discontinued operations. IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that, pursuant to Section 22.128(e) of the Commission's Rules, 47 C.F.R.  22.128(e), the applications (File Nos. 32609-CD-P/L-95 and 32612-CD-P/ML- 95) filed by J. Doering Communications ARE DISMISSED. 9. IT IS FURTHER ORDERED that Pacific Bell's informal petition to deny IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION David L. Furth Chief, Commercial Wireless Division Wireless Telecommunications Bureau