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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** FCC 96-181 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Central Radio Communications Corporation Application For A New Specialized Mobile Radio File No. 538455 System (SMR) Conventional Station in New York City MEMORANDUM OPINION AND ORDER Adopted: April 18, 1996 Released: By the Commission: Introduction 1. On December 30, 1992, Central Radio Communications Corporation ("Central") filed an application for review in which Central argues that the dismissal of its application for an SMR system in New York City was in error. Central's SMR application was filed after the former licensee allowed its license to expire, but before that license was deleted from the Commission's licensing database. The staff dismissed the SMR application in accordance with Section 90.175 of the Commission's Rules. 47 C.F.R.  90.175. For the reasons that follow, we affirm the Bureau's dismissal of Central's application and deny Central's Application for Review. Background 2. On October 8, 1990, Station KNEW212 licensed to James Franchi and William Pollenz expired. The licensees failed to file a renewal within the 180 day grace period after the expiration date. On the 181st day, April 9, 1991, three applicants, Central, Winston American Transportation, Inc. ("Winston") and Spectrum Resources filed applications. The Commission staff dismissed all three applications because they each sought a channel after the expiration of the station KNEW212 license which was not yet available. The frequencies were encumbered on the Commission's licensing database on the date the applications were filed as the former licensee's authorization had not been deleted from the Commission's database. Discussion 3. Central argues that prior to January 21, 1992, the effective date of Amendment of Parts 1 and 90 of the Commission's Rules Concerning the Construction, Licensing and Operation of Private Land Mobile Radio Stations dealing with licensing procedures that changed the renewal grace period from 180 days to 30 days, frequencies were recovered when licenses were not renewed and thus were "available" on the day after the renewal grace period ended, the 181st day after the previous license expired. Central asserts that some applications coordinated by the Commission's designated frequency coordinators were granted despite the fact that the licenses were encumbered on our database. 4. Section 90.175 of the Commission's Rules requires that applications be accompanied by a statement from a coordinator recommending an "available" frequency. Central argues that in 1991 frequencies were "available" when no other licensee continued to have a right to renew an existing license. While Central's interpretation has some appeal because it facilitates rapid reassignment of frequencies, for the reasons discussed below, the Commission has repeatedly interpreted "available" as used in Section 90.175 to mean that the frequency is not encumbered on the licensing database. 5. On January 11, 1989, the Chief of the Land Mobile and Microwave Division, Private Radio Bureau, set forth in writing for the National Association of Business and Educational Radio ("NABER"), the frequency coordinator for Central's application, and Specialized Industrial Radio Services Association ("SIRSA"), another coordinator, the Commission's interpretation of the term "available" as used in Section 90.175. He stated: We feel that the coordinators, licensees, applicants, and the general public should rely on the same sources of information regarding the availability of frequencies--the Commission's database. To this end, coordinators must rely upon the update of our database as official notification that frequencies are available for reassignment. While the definition was offered in the specific context of frequencies recovered from licensees who fail to construct, the broad interpretation of the term and the public interest rationale underlying it - notification to the public - is generally applicable to any frequencies recovered from licensees. 6. In 1990, a Notice of Proposed Rulemaking relating to Private Land Mobile licensing procedures and requirements, the Commission reiterated its interpretation of the term "available," and explained the rationale for the interpretation. The Commission stated: If a licensee does not seek reinstatement within this six month period, the station authorization is deleted from our license records and the channel is considered available for further assignment or, in other terms unencumbered. In the footnote to the statement, the Commission provided further detail regarding this interpretation: Generally speaking, a frequency remains encumbered until the license records are deleted from our automated database, which generally occurs approximately seven months after the expiration of a non-renewed license. Consequently, frequencies encumbered by an expired license do not become available for further assignment until the database is purged, which alerts all interested applicants and the coordinators that the channels are no longer encumbered. Id. at note 15. The restatement of the existing interpretation provided the groundwork for a discussion of possible changes in licensing procedure. 7. In the Notice of Proposed Rulemaking, the Commission set forth its rationale for maintaining the "unencumbered" interpretation rather than adopting SIRSA's proposal to make channels available the day following the renewal grace period. The Commission stated that if an applicant filed a renewal application near the end of the grace period, other applicants would not have notice of the filing until several days later when the Commission staff processed the application. All coordinations on the day following the grace period would not be based on up to date information. Thus, innocent applicants would file, their applications would be dismissed, and the filing fee would be forfeited. In keeping with this rationale, the Commission stated that it intended to retain the interpretation that frequencies are unavailable until all encumbrances are deleted from the database, and that it intended to shorten the grace period in order to make unused frequencies available more quickly. The Commission requested comment on this proposal. Central filed its application during the comment period of the NPRM. 8. As a result of this rule making proceeding, the Commission shortened the time period prior to removing expired licenses from our data base, and declined to adopt SIRSA's proposal to alter the interpretation of the term "available." 9. Central relied on statements by designated frequency coordinators that they understood that the Commission considered the frequencies to be "available" on the day following the grace period, and that some applications which they coordinated (thereby assuring the Commission's processing staff that the channels were available) were granted. The coordinators' mistaken interpretation of the term "available" is insufficient to cure the defect in Central's application. The coordinators are not authorized to substitute their interpretation of Commission Rules for ours. While the Commission staff may have failed to discover defects in some applications processed in reliance on a coordinator's defective certifications, the Commission has not interpreted Section 90.175 in any manner inconsistent with its directions to the coordinators and its statements in published Commission items. 10. For the above reasons, IT IS ORDERED THAT the Bureau's dismissal of Central's application IS AFFIRMED and the Application for Review filed by Central Radio Communications Corporation IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary