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Township of West Orange, New Jersey

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Released: April 11, 2013

Federal Communications Commission

DA 13-687

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Township of West Orange, New Jersey
)
FCC File No. 0003721208
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City of New York, New York
)
FCC File No. 0003725074
and
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New Jersey Transit Corporation
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FCC File No. 0003821824
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Applications for Licenses in the 800 MHz Band
)

MEMORANDUM OPINION AND ORDER AND ORDER PROPOSING MODIFICATION

Adopted: April 11, 2013

Released: April 11, 2013
By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau:

I.

INTRODUCTION

1. In this Memorandum Opinion and Order and Order Proposing Modification, we resolve a licensing
dispute involving the Township of West Orange, New Jersey (West Orange), the City of New York, New York
(NYC), the New Jersey Transit Corp. (NJ Transit) and Commission-certified frequency coordinators, PCIA—the
Wireless Infrastructure Association (PCIA) and the International Municipal Signal Association (IMSA). IMSA,
NYC and NJ Transit all have objected to the modification of license of West Orange’s Trunked Public Safety
Station WPCE346,1 to operate on frequency pairs 854/809.3125 MHz and 854/809.3375 MHz.2 For the reasons set
out below, we propose to delete the frequency pairs 854/809.3125 MHz and 854/809.3375 MHz from West
Orange’s license.

II.

BACKGROUND

2. In 2004, the Commission reconfigured the 800 MHz band to eliminate interference to public safety and
other land mobile communication systems operating in the band.3 As part of this reconfiguration, the Commission
made spectrum relinquished by Sprint Nextel Corporation (Sprint) in the Interleaved Band (809-815/854-860 MHz)

1 FCC File No. 0003721208 (filed Jan. 29, 2009) re WPCE346.
2 See Letter from Richard Klinsman, National Frequency Coordinator, IMSA/IAFC to Marlene H. Dortch, Secretary, FCC and
David Furth, Acting Chief, Public Safety and Homeland Security Bureau, FCC (dated Mar. 6, 2009) (IMSA Letter); Letter
from Felix L. Melendez, Director, FCC Licensing Support, City of New York, Department of Information Technology and
Telecommunications to David Furth, Acting Chief, Public Safety and Homeland Security Bureau, FCC (dated Mar. 3, 2009)
(NYC Letter); and Letter from Ed Velez, New Jersey Transit to Marlene H. Dortch, Secretary, FCC and David Furth, Acting
Chief, Public Safety and Homeland Security Bureau, FCC (dated Mar. 27, 2009) (NJ Transit Letter). IMSA, NYC and NJ
Transit filed their objections in the Commission’s Universal Licensing System (ULS). See FCC File No. 0003721208.
3 See Improving Public Safety Communications in the 800 MHz Band, WT Docket No. 02-55, Report and Order, Fifth Report
and Order
, Fourth Memorandum Opinion and Order, and Order, 19 FCC Rcd. 14969 (2004); Supplemental Order and Order
on Reconsideration
, 19 FCC Rcd 25120 (2004) , review denied sub nom. Mobile Relay Associates v. FCC, 457 F.3d 1 (D.C.
Cir. 2006); Memorandum Opinion and Order, 20 FCC Rcd 16015 (2005); Second Memorandum Opinion and Order, 22 FCC
Rcd 10467 (2007). See also Kay v. FCC, No. 06-1076 (D.C. Cir. filed Feb. 24, 2006) (holding additional appeals in abeyance).

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DA 13-687

available for licensing exclusively to public safety applicants for three years, and then to public safety and critical
infrastructure industry (CII) applicants for the next two years.4 Thereafter, the Sprint-vacated spectrum reverts to
the categories (public safety, Business/Industrial Land Transportation (B/ILT) and Specialized Mobile Radio
(SMR)) specified in Section 90.615 of the Commission’s Rules.5
3. In December 2008, the Public Safety and Homeland Security Bureau (PSHSB) issued a Public Notice
announcing that it would begin accepting applications for licensing of Sprint-vacated channels in the 809-809.5/
854-854.5 MHz portion of the 800 MHz band in certain NPSPAC regions.6 The Vacated Spectrum Public Notice
provided specific information on available channels and also set out frequency coordination requirements, pre-
filing notification and application procedures.7 Among these requirements was that each certified frequency
coordinator “must provide notification of each application submitted to it for coordination to all other participating
coordinators prior to filing the application with the Commission.”8 The Public Notice explained that the purpose of
the notification was “to enable frequency coordinators to address and resolve conflicting applications prior to filing
with the Commission, starting at 8:00 a.m. January 14, 2009.”9 However, the Public Notice also stated that “[i]f
conflicts are found, the application with the earliest notification date and time stamp will take precedence.”10
4. IMSA claims that “[the Public Safety Communications Council] and [the Land Mobile
Communications Council], including PCIA, agreed (per conference call held by LMCC on January 12, 2009) that
all frequency coordinators would manually submit application notifications for Vacated Sprint Channels
(‘Agreement’).”11 IMSA states that on January 14, 2009 PCIA, using an automated, rather than manual, process,
“batch filed” a number of applications notifying other frequency coordinators, inter alia, that West Orange intended
to apply for frequencies 854/809.3125 MHz and 854/809.3375 MHz.12 IMSA claims that PCIA’s notification
violated the Agreement because “all [PCIA] applications received timestamps within 1/1000th of a second of each
other and of the filing start time of 8:00 am on January 14th, 2009.”13 IMSA argues that “[t]his notification method
unfairly provided all PCIA applications filing priority over applications of all other coordinators, including IMSA,
who adhered to the Agreement.”14
5. On January 29, 2009, PCIA, on behalf of West Orange, applied through the Universal Licensing
System (ULS) to modify West Orange’s license for WPCE346 by adding, inter alia, frequencies 854/809.3125
MHz and 854/809.3375 MHz.15 On February 3, 2009, on behalf of NYC, IMSA filed a mutually exclusive

4 See Public Safety and Homeland Security Bureau Announces Application and Licensing Procedures for Channels
Relinquished by Sprint Nextel Corporation in the 809-809.5/854-854.5 MHz Band, WT Docket No. 02-55, Public Notice, 23
FCC Rcd. 18343 (PSHSB 2008) (Vacated Spectrum Public Notice).
5 Id. 47 C.F.R. § 90.615.
6 Vacated Spectrum Public Notice, 23 FCC Rcd. 18343.
7 Id.
8 Id. at 18345.
9 Id. The Vacated Spectrum Public Notice also provided that, in the event there were mutually exclusive applications, the
application with the earliest notification date and time stamp would prevail. “Later-notified applications must have their
mutually exclusive channels deleted but may maintain their priority for channels that have no conflicts.” Id.
10 Id.
11 IMSA Letter at 2 (Emphasis supplied).
12 Id.
13 Id.
14 Id.
15 FCC File No. 0003721208 (filed Jan. 29, 2009) re WPCE346.
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DA 13-687

application through ULS seeking the frequency pair 854/809.3125 MHz.16 NYC’s mutually exclusive application
specified a site only 22.87 kilometers away from West Orange’s Station WPCE346.17 IMSA, however, did not file
a ULS application on behalf of NJ Transit for frequency pair 854/809.3375 MHz until April 28, 2009, after it had
concluded a “short spacing” agreement with West Orange.18
6. When they filed the applications on behalf of West Orange and NYC both PCIA and IMSA certified
compliance with the Vacated Spectrum Public Notice and verified that West Orange and NYC each could operate
on 854/809.3125 MHz without causing interference to any other licensees.19 The licensing staff granted the West
Orange modification application on February 23, 2009, and dismissed the NYC application on March 3, 2009.20
7. On March 3, 2009, NYC objected to the grant of West Orange’s modification application.21 NYC
argued that “PCIA showed a total disregard to the agreement established by LMCC in using an automated filing
system.”22 NYC requested that the authorization for modification of license for WPCE346 be “cancelled” and that
a “hold” be put on the granting of a license for the contested frequencies until IMSA and PCIA could conclude an
agreement on the coordination of mutually exclusive applications.23
8. On March 6, 2009, IMSA, which coordinated the NYC application and the NJ Transit application, also
filed an objection to the modification of West Orange’s license.24 IMSA alleged that West Orange’s modification
application was inconsistent with the filing procedure in the Vacated Spectrum Public Notice,25 and that, by batch
filing notifications, PCIA violated the Agreement reached during the January 12, 2009 conference call, supra. 26
IMSA argues that “PCIA’s noncompliant application notifications resulted in exclusivity issues, exactly what the
FCC Pre-Coordination Procedures and the Agreement were to prevent.”27 But for PCIA’s noncompliant
application notifications, IMSA claims that it’s application notifications on behalf of NYC and NJ Transit “would
have had filing priority under the FCC’s Pre-Coordination Procedures.”28
9. IMSA adds that it agreed to negotiate with PCIA to resolve conflicts between PCIA’s application for

16 FCC File No. 0003725074 (filed Feb. 3, 2009). NYC also applied for frequency pair 854/809.4375 MHz. Id.
17 See Notice of Dismissal Reference No. 4839983 (dated Mar. 3, 2009) re FCC File No. 0003725074 (Dismissal Letter).
18 See infra, ¶ 11.
19 Certification Letter from Richard Klinsman, Chief Operating Officer, IMSA/IAFC (Jan. 13, 2009) re FCC File No.
0003725074. Certification Letter from Don Andrew, Director of Frequency Coordination Services, PCIA (filed Jan. 28, 2009)
re FCC File No. 0003721208. PCIA also certified that frequency pair 854/809.3375 MHz was available for licensing. Id.
20 Dismissal Letter. The staff dismissed NYC’s application for frequency pairs 854/809.3125 MHz and 854/809.4375 MHz.
Id. NYC reapplied for frequency pair 854/809.4375 MHz, which the staff granted under call sign WQKE581. See FCC File
No. 0003788783 (filed Mar. 26, 2009).
21 NYC Letter. In its objection, NYC claimed that it applied for frequency pairs 854/809.325 MHz and 854/809.3375 MHz.
Id. As noted, however, NYC applied for frequency pair 854/809.4375 MHz, which the staff granted. See FCC File No.
0003788783.
22 NYC Letter.
23 Id.
24 IMSA Letter at 1.
25 Id. at 2.
26 Id.
27 Id.
28 Id.
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Federal Communications Commission

DA 13-687

West Orange and IMSA’s applications for NYC and NJ Transit.29 IMSA claims that, in an email dated January 30,
2009, counsel for West Orange agreed to remove frequency pair 854/809.3125 MHz if it would resolve the
frequency conflict with NYC and that West Orange agreed to execute a letter of concurrence with NJ Transit
regarding frequency pair 854/809.3375 MHz.30 IMSA claims that PCIA negotiated in “bad faith” by filing the
West Orange modification application without notice to IMSA – and before negotiations had been concluded –
thereby depriving NYC of access to frequency 854/809.3125 MHz and disrupting negotiations with NJ Transit over
shared use of frequency pair 854/809.3375 MHz.31 IMSA, in its objection, requested that frequency pair
854/809.3125 MHz be deleted from West Orange’s license for WPCE346 and that the Commission permit West
Orange and NJ Transit to negotiate a letter of concurrence regarding the use of 854/809.3375 MHz.32
10. On March 27, 2009, NJ Transit filed its own objection to the grant of West Orange’s modification
application.33 NJ Transit states that West Orange and NJ Transit were still negotiating “to allow for mutual use of
the frequency pair [854/809.3375 MHz] and to resolve any destructive interference concerns that may arise from
either party,”34 when, without notice to NJ Transit, PCIA filed an application on March 3, 2009 on behalf of West
Orange before the parties could complete their short-spacing negotiations.35 In its objection, NJ Transit urged the
Commission to permit the parties to reach a short-spacing agreement regarding frequency pair 854/809.3375
MHz.36
11. On April 28, 2009, on behalf of NJ Transit, IMSA filed an application through ULS seeking the
frequency pair 854/809.3375 MHz.37 NJ Transit requested a waiver of the short-spacing table in Section
90.621(b)(4)38 of the Commission’s rules to utilize 854/809.3375 MHz at locations less than 88 km from West
Orange’s unconstructed facilities.39 NJ Transit included a letter of concurrence from West Orange (West Orange
LOC).40 Specifically, the West Orange LOC recognized that NJ Transit “disputes” whether West Orange’s
previously granted application for 854/809.3375 MHz “was filed consistent with the applicable FCC Rules” and
that the “parties wish to resolve this dispute without resort to litigation.”41 The Bureau’s licensing staff granted the

29 Id.
30 Id.
31 Id.
32 Id. at 3.
33 NJ Transit Letter at 1.
34 Id.
35 Id. at 2.
36 Id.
37 FCC File No. 0003821824 (filed May 26, 2009). By letter dated January 6, 2009, IMSA also certified that frequency pair
854/809.3375 MHz would be available for licensing on January 28, 2009. See Letter from Richard Klinsman, IMSA/IAFC,
Chief Operating Officer to Wireless Telecommunications Bureau, FCC (dated Jan. 6, 2009) attached to FCC File No.
0003821824.
38 FCC File No. 0003821824 at Request for Waiver of Short Spacing Table at 1 citing 47 C.F.R. § 90.621(b)(4).
39 West Orange filed a notification on ULS that it completed construction of frequency pairs 854/809.3125 MHz and
854/809.3375 MHz on February 23, 2010. See FCC File No. 0004133759 (filed Feb. 23, 2010) re WPCE346. West Orange
later expanded its operations on these frequency pairs. See FCC File No. 0004626198 (filed Feb. 22, 2011) re WPCE346.
West Orange recently renewed its authorization for WPCE346 and updated its contact information. See FCC File No.
0005663865 (filed Feb. 25, 2013).
40 FCC File No. 0003821824 at “Short Spacing Resolution” and “Short Spacing Agreement.”
41 Id. at Short Spacing Resolution at 1 and Short Spacing Agreement at 1.
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waiver on May 27, 2009 and subsequently granted NJ Transit’s application on June 1, 2009.42 NJ Transit, however,
did not withdraw its objection to the West Orange application grant, which objection therefore remains pending.

III.

DISCUSSION

12. As an initial matter, we believe that IMSA, NYC and NJ Transit’s objections are most properly
characterized as informal requests for Commission action under Section 1.41 of the Commission’s rules.43 Based
on our review of the record, we agree with IMSA, NYC and NJ Transit that PCIA should not have submitted West
Orange’s application to add frequency pairs 854/809.3125 and 854/809.3375 MHz to the license for WPCE346
before attempting to resolve the mutual exclusivity with the NYC and NJ Transit notifications.
13. The Commission’s rules and the 800 MHz Vacated Spectrum Public Notice require parties seeking
authorizations in the 800 MHz band to first proceed through the frequency coordination process and to file
applications through ULS only after successful coordination efforts.44 The underlying purpose of the Commission’s
coordination requirements is to improve the efficient use of spectrum and reduce the delay and burden on
Commission resources associated with mutually exclusive applications.45 In the case of 800 MHz spectrum being
relinquished by Sprint and made available to public safety, the Bureau further refined its coordination procedures
specifically “to enable frequency coordinators to address and resolve conflicting applications prior to filing with the
Commission.”46 Thus, in this case the conflicts in the applications should have been resolved by negotiation and
settlement among the frequency coordinators involved.
14. Here, it appears that PCIA filed the West Orange application with the Commission, despite being in
continuing negotiations with the other parties to remove the mutual exclusivity with their frequency proposals, thus
lending credence to IMSA’s accusation of bad faith on PCIA’s part. Moreover, despite IMSA’s uncontradicted
statement that the coordinators – including PCIA – had agreed, on January 12, 2009, that application notifications
must be filed manually, PCIA, two days later, disregarded the Agreement and used an automated application
process to file its application notifications virtually at the instant that the notification window opened on January
14, 2009, thereby to have the “earliest notification date and time stamp” associated with PCIA’s notifications.
Other coordinators, filing manually, as all had agreed, had no chance of prevailing in time as against PCIA’s “batch
filing.”
15. The notification process was not established to allow applicants to use artifice to become the “first
notified.” Instead, the stated purpose of the Vacated Spectrum Public Notice was “to enable frequency coordinators
to address and resolve conflicting applications prior to filing with the Commission.” Here, PCIA was aware that
there were conflicting applications, engaged the other parties in negotiations, and then, without the conflicting
applications being resolved, and without notice to the other parties, filed the West Orange application with the
Commission. We decline to countenance PCIA’s tactics and thus propose to modify West Orange’s license to
delete frequency pairs 854/809.3125 MHz and 854/809.3375 MHz. In so doing, we are faithful to the underlying
purpose of the Commission’s coordination procedures—the avoidance of mutual exclusivity and its attendant
burden on Commission resources exemplified by the multiple pleadings submitted in this case. This matter
demonstrates a clear failure of coordination and should have been resolved by negotiation and settlement between
the frequency coordinators involved as well as the affected parties. In no event should the mutually exclusive

42 NJ Transit filed a notification on ULS that it completed construction on frequency pair 854/809.3375 MHz on December 14,
2009. See FCC File No. 0004062785 (Dec. 14, 2009).
43 47 C.F.R. § 1.41.
44 See 47 U.S.C. § 90.175(e). See also Vacated Spectrum Public Notice, 23 FCC Rcd. at 18345.
45 Frequency Coordination in the Private Land Mobile Radio Services, PR Docket No. 83-737, Report and Order, 103
F.C.C.2d 1093, 1095 (Apr. 15, 1986) citing 47 U.S.C. § 151.
46 800 MHz Vacated Spectrum Public Notice, 23 FCC Rcd. at 18345.
5

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applications have been submitted to the Commission. We therefore reject any implication by PCIA and West
Orange that West Orange’s application should have prevailed because it was first-notified, and clarify that
resolving applications by determining which applicant notified first is the decision of last resort, i.e., that
coordinators must first exhaust all other means of rationally resolving mutual exclusivity between or among
applications before resorting to a first-filed analysis.47 Moreover, notifications that are batch-filed, rather than
manually filed, are entitled to no consideration in the first-filed analysis.
16. In Aventura/Doral, we recognized “that the 800 MHz Vacated Spectrum Public Notice stated that if
conflicts were found between notifications, the earlier one would take precedence.”48 However, we stated that “this
provision was intended to assist coordinators in negotiating the resolution of conflicting 800 MHz applications, not
to be a substitute for negotiation.”49 We added that “[i]t was also not intended to give an automatic advantage to
the coordinator with the fastest computer capable of “batch filing” multiple applications as soon as an application
window opens.”50 Accordingly, we clarified “that where mutually exclusive applications are filed on the same day
in bands requiring frequency coordination, any conflicts that arise must be resolved by the relevant coordinators
before the applications are filed with the Commission, or the conflicting applications will be dismissed.”51 In so
finding, we sought to “ensure that frequency coordination does not become a game of chance but is instead a fair
and transparent process in which frequency coordinators use their technical expertise to resolve mutually exclusive
applications in the public interest.”52
17. Here, as in Aventura/Doral, the process failed because “the conflicts in the applications should have
been resolved by negotiation and settlement between the frequency coordinators involved.”53 Unlike the
circumstances in Aventura/Doral, however, PCIA “batch filed” its application before it negotiated a settlement with
IMSA regarding the NYC and NJ Transit applications. As a result, West Orange’s application effectively blocked
NYC’s application while NJ Transit continues to object to West Orange’s application.
18. Section 316 of the Communications Act, as amended, provides the appropriate vehicle for resolving
this matter. Section 316(a) permits the Commission to modify a station license if the action will promote the public
interest, convenience, and necessity.54 We find that the proposed modification would serve the public interest by
reverting the parties to the status quo ante so that the frequency coordinators, and the parties, may resolve the
conflict between West Orange, NYC, and NJ Transit.

IV.

CONCLUSION

19. Based on the record before us, we find that a modification of West Orange’s license for Station
WPCE346 to delete frequency pairs 854/809.3125 MHz and 854/809.3375 MHz is appropriate. In accordance with

47 “Coordinators may select the prevailing application on the basis of its notification time, but only in the event that there is no
engineering solution or other rational basis on which to resolve mutual exclusivity.” City of Aventura, Florida and City of
Doral, Florida, Memorandum Opinion and Order, __ FCC Rcd ____, DA 13-633, at ¶ 10 (PSHSB rel. Apr. 8, 2013)
(Aventura/Doral). “In order to qualify for a time preference, an application must be filed manually as specified in the
coordinators’ Memorandum of Agreement, supra. Id. ‘Batch filed’ applications, timed to be computer-filed the instant the
application window opens, may not be afforded a time preference.” Id. at note 32.
48 Id.
49 Id.
50 Id.
51 Id.
52 Id.
53 Id. at ¶ 9.
54 47 U.S.C. § 316(a) (requiring that we notify the affected station(s) of the proposed modification(s) and the public interest
reasons for the action, and afford at least thirty days to respond).
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Section 1.87 of the Commission’s rules, we will not issue a modification order until West Orange has received
notice of our proposed action and has had an opportunity to interpose a protest.55 To protest the modification, West
Orange must, within 30 days of the release of this Memorandum Opinion and Order, submit a written statement
with sufficient evidence to show that the modification would not be in the public interest. The protest must be filed
with the Federal Communications Commission, Office of the Secretary, 445 Twelfth Street, SW, Room TW-A325,
Washington, DC 20554.56 If no protest is filed, West Orange will have waived its right to protest the modification
and will be deemed to have consented to the modification.57

V.

ORDERING CLAUSES

20. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the Communications Act of 1934, as
amended, 47 U.S.C. § 154(i), and Section 1.41 of Commission's Rules, 47 C.F.R. § 1.41, the Informal Objection to
rescind the grant of the license modification for Station WPCE346, submitted by the International Municipal Signal
Association on March 6, 2012, IS GRANTED.
21. IT IS FURTHER ORDERED, that, pursuant to Section 4(i) of the Communications Act of 1934, as
amended, 47 U.S.C. § 154(i), and Section 1.41 of Commission's Rules, 47 C.F.R. § 1.41, the Informal Objection to
rescind the grant of the license modification for Station WPCE346, submitted by the City of New York, New York,
IS GRANTED.
22. IT IS FURTHER ORDERED that, pursuant to Section 4(i) of the Communications Act of 1934, as
amended, 47 U.S.C. § 154(i), and Section 1.41 of Commission's Rules, 47 C.F.R. § 1.41, the Informal Objection to
rescind the grant of the license modification for Station WPCE346, submitted by the New Jersey Transit
Corporation is GRANTED.
23. IT IS PROPOSED, pursuant to Sections 4(i) and 316(a) of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 316, and Section 1.87 of the Commission’s Rules, 47 C.F.R. § 1.87, that the license
for Trunked Public Safety 800 MHz Station WPCE346, Township of West Orange, New Jersey, BE MODIFIED by
deleting the frequency pairs 854/809.3125 MHz and 854/809.3375 MHz.
24. IT IS FURTHER ORDERED that this Memorandum Opinion and Order and Order Proposing
Modification shall be sent by certified mail, return receipt requested, to Dominic M. Allegrino Jr., Township of
West Orange, 66 Main Street, West Orange, NJ 07052.
25. This action is taken under delegated authority pursuant to Sections 0.191 and 0.392 of the
Commission’s rules, 47 C.F.R. §§ 0.191, 0.392.
FEDERAL COMMUNICATIONS COMMISSION
Michael J. Wilhelm
Deputy Chief,
Policy and Licensing Division
Public Safety and Homeland Security Bureau

55 47 C.F.R. § 1.87(a).
56 The address for FCC locations should be used only for documents filed by United States Postal Service first-class mail,
Express Mail, and Priority Mail, and hand-delivered or messenger-delivered documents. Documents sent by commercial
overnight mail (other than United States Postal Service, Express Mail, and Priority Mail) should be addressed for delivery to
9300 East Hampton Drive, Capitol Heights, MD 20743. See FCC Announces Change in Filing Locations for Paper
Documents, Public Notice, 24 FCC Rcd 14312 (2009).
57 47 C.F.R. § 1.87(g) and (h).
7

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