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Warren Havens Denial of Reconsideration of PSI Grizzly Peak Order

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Released: January 25, 2013

Federal Communications Commission

DA 13-102

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

PAGING SYSTEMS, INC.
)
)

Applications for Assignment of Authorization for )
File Nos. 0004757182 and 0004800336
Stations WQMF673 and WPSZ434
)
)

Application to Modify License for Station
)
File No. 0005068796
WPDD838
)
)

DD INCORPORATED
)
)

Application to Renew License for Station
)
File No. 0004825560
WPSZ434
)

SECOND ORDER ON RECONSIDERATION AND ORDER ON RECONSIDERATION

Adopted: January 25, 2013

Released: January 25, 2013

By the Deputy Chief, Mobility Division, Wireless Telecommunications Bureau:
1. Introduction. We have before us two petitions for reconsideration filed by Environmentel
LLC, Skybridge Spectrum Foundation, Intelligent Transportation & Monitoring Wireless LLC, Verde
Systems LLC, Telesaurus Holdings GB LLC, V2G LLC, and Warren C. Havens (collectively
Petitioners). The first petition seeks reconsideration of an Order and Order on Reconsideration1 by the
Wireless Telecommunications Bureau’s Mobility Division (Division) that denied Petitioners’ petitions
filed in opposition to the applications of Paging Systems, Inc. (PSI) to assign its licenses for 800 MHz
Specialized Mobile Radio Station WPSZ434 and Industrial/Business Pool Station WQMF673 to Crystal
SMR, Inc. (Crystal), and the application of Crystal’s assignee DD Incorporated (DD) to renew the license
for Station WPSZ434.2 The second petition seeks reconsideration of the Division’s Order3 that denied
Petitioners’ petition to deny PSI’s application modify its license for Paging Station WPDD838.4 For the
reasons stated below, we deny both petitions.
2. Background. PSI’s applications to assign to Crystal the licenses for Station WQMF673, with
authorized locations at Mt. Vaca, Loma Ridge, and Twin Peaks, California, and Station WPSZ434, with
authorized locations at Mt. Diablo and Grizzly Peak, California, were granted in 2011. Petitioners filed a
separate petition for reconsideration of each grant. Crystal assigned the license for Station WPSZ434 to
DD, which filed an application to renew the license. Petitioners filed a petition to dismiss or deny the
renewal application.


1 Paging Systems, Inc., Order and Order on Reconsideration, 27 FCC Rcd 6043 (WTB MD 2012) (Order and
Order on Reconsideration
).
2 Petition for Reconsideration Based on New Facts, and Petition for Reconsideration (filed July 5, 2012) (PFFR).
PSI and DD filed oppositions. Petitioners filed a reply.
3 Paging Systems, Inc., Order, 27 FCC Rcd 13560 (WTB MD 2012) (Order).
4 Petition for Reconsideration, and Petition for Reconsideration Based on New Facts, and Request under Section. 1.2
(filed Dec. 7, 2012) (PFR). PSI filed an opposition. Petitioners filed a reply.

Federal Communications Commission

DA 13-102

3. In all three petitions, Petitioners asserted that satellite images of the authorized locations
showed the licensed coordinates to be vacant land or paved roadways, which according to Petitioners
demonstrated that the stations were not constructed so the licenses automatically terminated and thus
could not be assigned or renewed. Petitioners also alleged misconduct by PSI with respect to other
licenses, which according to Petitioners showed that PSI lacked the character and fitness to be a
Commission licensee.
4. PSI and DD responded that the stations were properly constructed, but the location
information on the licenses was less precise than could be provided by more recent technology. Because
there was a small discrepancy between the coordinates identified by PSI and the coordinates identified by
DD for Station WPSZ434’s Grizzly Peak location, the Division in February 2012 directed them, pursuant
to Section 308(b) of the Communications Act of 1934, as amended,5 to provide additional information
concerning Stations WPSZ434 and WQMF673. In March, they provided additional documentary and
photographic evidence regarding the stations, and DD explained that it had received the discrepant
coordinates from a third party rather than from independent measurements that differed from PSI’s
measurements. Petitioners replied that the responses were not satisfactory and properly substantiated.
5. Also in February 2012, PSI filed an application to modify its license for Station WPDD838,
with authorized locations at Grizzly Peak and Burlingame, California, by, inter alia, changing the
coordinates, site elevation, and antenna height for the Grizzly Peak location (which was licensed for the
same site as Station WPSZ434’s Grizzly Peak location). PSI explained that the antenna has not been
physically moved, and the modification was requested only to correct the site information, which had
been recalculated using newer, more accurate technology. Petitioners filed a petition to deny the
application. They argued that the application must be dismissed or denied or the license investigated for
failure to construct and operate as authorized, in light of the Division’s then-outstanding inquiry
concerning Stations WQMF673 and WPSZ434. Petitioners also alleged misconduct by PSI with respect
to other licenses, which according to Petitioners showed that PSI lacked the character and fitness.
6. In June 2012, the Division denied Petitioners’ petitions regarding Stations WQMF673 and
WPSZ434, stating,
Petitioners’ assertion that the satellite images demonstrate that the stations were not
properly constructed is meritless. The images, with antenna structures visible near the
licensed coordinates, actually support the licensees’ representations that the stations were
constructed at locations within a reasonable margin of error for determining geographic
coordinates using older technology. Occasional minor discrepancies in license
coordinates due to the employment of later technology that yields more accurate results
are not unprecedented, and are not grounds for concluding that the authorization
terminated due to failure to construct . . . .6
The Division rejected Petitioners’ criticisms of PSI’s and DD’s responses to the Division’s inquiry,
stating, “Petitioners’ arguments are speculation and conjecture about how the submitted responses could
be incorrect, falsified, or actually mean something completely different. Petitioners offer no evidence to
substantiate these claims.”7 Finally, the Division declined to address Petitioners’ arguments concerning
PSI’s character and fitness to be a Commission licensee, noting that “the Commission has held that
Petitioners’ allegations against PSI’s character qualifications that relate to its other licenses and are not


5 47 U.S.C. § 308(b).
6 Order and Order on Reconsideration, 27 FCC Rcd at 6045 ¶ 5 (footnote omitted).
7 Id. at 6044 n.10.
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Federal Communications Commission

DA 13-102

the subject of the proceeding at issue are more appropriately addressed elsewhere.”8
7. In November 2012, the Division denied Petitioners’ petition regarding Station WPPD838. It
noted that it had resolved Petitioners’ claims regarding Stations WQMF673 and WPSZ434 in favor of the
licensees, reiterated that the satellite images of the Grizzly Peak site corroborated that the facility was
constructed, and again declined to address Petitioners’ arguments concerning PSI’s character and fitness.9
8. Discussion. Some of Petitioners’ arguments rely on information that Petitioners did not
submit to the Division. A petition for reconsideration that relies on facts or arguments not submitted to
the designated authority may be granted only if the new information relates to events which occurred or
circumstances which changed since the petitioner’s last opportunity to present such matters, the petitioner
could not reasonably have known the information prior to the last opportunity to present such matters, or
the public interest requires consideration of the new information.10
9. First, Petitioners present correspondence from the State of California stating that a
preliminary records search had not discovered any documents relating to operation by PSI, Crystal, or DD
at Mt. Diablo State Park.11 According to Petitioners, this indicates that Station WPSZ434’s Mt. Diablo
site was not constructed and operational.12 Assuming arguendo that information discovered through a
document request that Petitioners did not make until after their last opportunity to present such matters
should be deemed to have been previously unavailable to them,13 we do not find this information
persuasive. The information relays a preliminary, not final, search result. Moreover, as the Division
indicated in the Order regarding a different argument by Petitioners, the absence of records that could
corroborate construction and operation of a station does not prove that the station was not constructed and
operational, especially in light of other documentary and photographic evidence regarding the station.14
10. Next, Petitioners attack the sufficiency and veracity of the responses of PSI and DD to the
Division’s inquiry concerning Stations WPSZ434 and WQMF673. With respect to the new arguments in
this regard,15 we note that Petitioners have not explained why these could not have been presented earlier,
so we decline to address them. With respect to the repeated arguments,16 we do not agree with
Petitioners’ assessment of the Division’s evaluation of the evidence received in response to its inquiry.
As noted previously, Petitioners’ arguments are “speculation and conjecture about how the submitted
responses could be incorrect, falsified, or actually mean something completely different.”17
11. Petitioners also argue that the fact that the Division inquired regarding Stations WPSZ434


8 Id. at 6045 ¶ 6 (citing, e.g., Paging Systems, Inc., Order on Reconsideration, 26 FCC Rcd 16573, 16576-78 ¶¶ 7-9
(2011) (PSI Order)).
9 Order, 27 FCC Rcd at 13561 ¶ 4.
10 47 C.F.R. § 1.106(c).
11 PFFR at Ex. 1.
12 See PFFR at 3-4.
13 See Amendment of the Commission’s Rules Concerning Maritime Communications, Second Order on Further
Reconsideration
, WT 92-257, 24 FCC Rcd 4150, 4152 ¶ 6 (WTB MD 2009), review denied, Fourth Memorandum
Opinion and Order
, 25 FCC Rcd 5008 (2010), recon. dismissed, Order on Reconsideration, 26 FCC Rcd 16581
(2011), recon. dismissed, Order on Reconsideration, 27 FCC Rcd 13520 (WTB MD 2012), recon. pending.
14 See Order, 27 FCC Rcd at 13561 ¶ 4.
15 See PFFR at 5.
16 See id. at 12-13.
17 See Order and Order on Reconsideration, 27 FCC Rcd at 6044 n.10.
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Federal Communications Commission

DA 13-102

and WQMF673 demonstrates the existence of “a substantial and material question of fact”18 that must be
resolved by formal hearing.19 We disagree. Section 308(b) specifically authorizes inquiries to applicants
“to enable [the Commission] to determine whether such original application should be granted or denied .
. . .”20 While a hearing may follow from the response to a Section 308(b) inquiry, the Commission has
stated that such a course is not required.21 Here, the Division made its determination about the
construction of the stations based on the full record, including the satellite images showing towers in the
close vicinity of the original coordinates as well as the received responses.
12. Finally, Petitioners argue that the Division erred in declining to address their arguments
concerning PSI’s character and fitness to be a Commission licensee.22 We again note that the
Commission has held that these allegations are more appropriately addressed in the proceedings relating
to the licenses involved in the allegations,23 and “strongly caution[ed] Petitioners and their related
companies not to file additional misdirected pleadings of this nature.”24
13. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 303(r), and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, and Section 1.106 of the
Commission's Rules, 47 C.F.R. § 1.106, the Petition for Reconsideration Based on New Facts, And
Petition for Reconsideration filed by Environmentel LLC, Skybridge Spectrum Foundation, Intelligent
Transportation & Monitoring Wireless LLC, Verde Systems LLC, Telesaurus Holdings GB LLC, V2G
LLC, and Warren C. Havens on July 5, 2012 IS DENIED.
14. IT IS FURTHER ORDERED that, pursuant to Sections 4(i), 303(r), and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, and Section 1.106 of the
Commission's Rules, 47 C.F.R. § 1.106, the Petition for Reconsideration, and Petition for Reconsideration
Based on New Facts, and Request under Section. 1.2 filed by Environmentel LLC, Skybridge Spectrum
Foundation, Intelligent Transportation & Monitoring Wireless LLC, Verde Systems LLC, Telesaurus
Holdings GB LLC, V2G LLC, and Warren C. Havens on December 7, 2012 IS DENIED.
15. These actions are 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
Scot Stone
Deputy Chief, Mobility Division
Wireless Telecommunications Bureau


18 47 U.S.C. § 309(e).
19 See PFFR at 6-11, 18; PFR at 3-5.
20 47 U.S.C. § 308(b).
21 See John M. Roberts, Order, 3 FCC Rcd 371, 371-72 ¶¶ 2-4 (1988).
22 See PFFR at 14-18; PFR at 2-3, 5-12.
23 PSI Order, 26 FCC Rcd at 16576-78 ¶¶ 7-9; see also, e.g., Touch Tel Corporation, Second Order on
Reconsideration
, 27 FCC Rcd 4042, 4045 ¶ 8 (WTB MD 2012), review pending. Petitioners also argue that PSI has
abandoned its position regarding the adjudication of allegations concerning licenses other than those at issue in a
given proceeding, given that in an unrelated proceeding, PSI alleged misconduct by Petitioners with respect to
licenses not at issue in that proceeding. See PFFR at 13-14; PFR at 12. Even if the PSI pleading can be so
interpreted, it does not change the Commission’s holding.
24 PSI Order, 26 FCC Rcd at 16574 ¶ 2.
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