******************************************************** 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 re Application of ) ) JAMES D. BEDNARK ) File Nos. 21937-CD-P/ML-97 ) 21938-CD-P/ML-97 ) For New Paging and Radiotelephone Service) Facilities To Operate On 931.8125 MHz) at San Jose, CA, and Reno, NV, under ) Call signs KNLW410 and KNLW411 ) ORDER Adopted: November 24, 1997 Released: November 24, 1997 By the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. By this order, we deny the petition to deny filed April 11, 1997 by MobileMedia Communications, Inc. ("MobileMedia") against James D. Bednark's ("Bednark") applications for paging facilities on frequency 931.8125 MHz in Reno, Nevada, and San Jose, California. We conclude that Bednark's applications are competing applications filed in accordance with the Commission's rules regarding the submission of competing 931 MHz paging applications. We also dismiss Bednark's petition for reconsideration filed August 16, 1996 seeking reinstatement of the above-referenced applications. The above-referenced applications were initially filed on July 9, 1996, but subsequently returned to Bednark. Bednark resubmitted these applications on February 20, 1997. Because we reinstate Bednark's applications nunc pro tunc, Bednark's petition for reconsideration is moot. II. BACKGROUND 2. On February 8, 1996, Professional Paging Inc. ("PPI") filed applications requesting authorization for paging facilities on frequency 931.8125 MHz in Reno, Nevada, and San Jose, California. Both applications were accepted for filing on February 28, 1996. On July 9, 1996, Bednark also filed applications requesting authorization for paging facilities on frequency 931.8125 MHz in Reno, Nevada, and San Jose, California ("original applications"). Subsequently, the Narrowband Branch returned Bednark's original applications indicating that these applications were filed in violation of the Commission's interim paging rules, which suspended acceptance of all new applications for paging channels filed after midnight February 8, 1996. 3. On August 16, 1996, Bednark filed a petition for reconsideration of the Narrowband Branch's decision to return his original applications. Bednark contends that these applications should have been accepted for filing because they were filed in accordance with the Commission's revised interim processing rules issued on April 23, 1996, as implemented by a Public Notice issued on May 10, 1996. Specifically, Bednark contends that PPI's 60-day Public Notice period for filing competing applications ("Public Notice period") never began because of the Commission's February 8, 1996 decision to suspend acceptance of paging applications. Bednark further contends that PPI's Public Notice period was restored by the Commission on May 10, 1996. Therefore, Bednark contends that his original applications are competing applications filed within PPI's 60-day Public Notice period. In addition to filing his petition for reconsideration, Bednark refiled his applications on February 20, 1997 ("refiled applications"). Both refiled applications were accepted for filing. 4. On April 11, 1997, MobileMedia filed a petition to deny against Bednark's refiled applications. MobileMedia contends that these applications must be dismissed because (1) the Commission, on February 8, 1996, suspended acceptance of all new paging applications, and that Bednark's applications do not meet the Commission's exception to filing applications after February 8, 1996; (2) the Commission decided to dismiss all paging applications filed after July 31, 1996; and, (3) the applications do not contain licensee qualification information or a public interest statement, as required by 47 C.F.R.  22.107(a) and (b). III. DISCUSSION 5. On February 8, 1996, the Commission suspended the acceptance of all new applications for paging channels that were not received by midnight February 8, 1996. Subsequently, the Commission permitted incumbent licensees to file initial applications to add new sites to their systems, provided that each new site was located within 65 kilometers (40 miles) of an existing site operated by the licensee on the same channel. We agree with MobileMedia that Bednark's applications do not meet the filing exception for incumbent licensees. Neither the original nor refiled applications request an additional location that is located within 40 miles of an authorized transmission site that was licensed to Bednark on the same channel on or before February 8, 1996, and which was operational as of the date the application for the additional location was filed. 6. Nonetheless, Bednark's original applications are competing applications that were properly filed within PPI's 60-day Public Notice period. Bednark's applications are competing applications because they propose paging facilities that are less than the minimum required separation distance from PPI's proposed paging facilities in Reno, Nevada, and San Jose, California, respectively. Under the Commission's rules, 931 MHz paging applications are placed on Public Notice for 60 days after being accepted for filing to allow for the filing of competing applications. As a result of the February 8th NPRM, the 60-day Public Notice period was suspended for some 931 MHz paging applications that were accepted for filing before February 8, 1996. In addition, the 60-day Public Notice period did not begin for those 931 MHz paging applications accepted for filing after February 8, 1996, but filed on or before February 8, 1996. 7. On April 23, 1996, the Commission announced that it would reinstate the 60-day Public Notice period for those 931 MHz paging applications whose 60-day Public Notice period either did not begin or was suspended because of the February 8th NPRM. The Commission noted that the reinstatement of the 60-day Public Notice period would be initiated by the release of a Public Notice. On May 10, 1996, the Wireless Telecommunications Bureau released a Public Notice ("May 10th Public Notice") listing certain paging applications that: 1) had been accepted for filing by the Commission prior to February 8, 1996 and, 2) had been filed on or before February 8, 1996 but accepted for filing after February 8, 1996. The February 8th NPRM suspended the statutory Public Notice period for some applications and prevented the Public Notice period from beginning for other applications. Therefore, a 931 MHz paging application filed after May 10, 1996 was accepted for filing as long as it was a competing application of an application listed in one of the prior Public Notices attached to the May 10th Public Notice. 8. On February 8, 1996, PPI filed applications for paging facilities in Reno, Nevada, and San Jose, California. Both applications were accepted for filing on February 28, 1996. Because PPI's applications were accepted for filing after February 8, 1996, the 60-day Public Notice period for competing applications never began. PPI's applications were listed on the May 10th Public Notice. Therefore, PPI's Public Notice period began on May 10, 1996, and applicants had 60 days from May 10, 1996 to file competing applications. Bednark filed his original applications on July 9, 1996, the last day permitted for filing competing applications in PPI's 60-day Public Notice period. Bednark's applications were timely filed and should not have been returned. IV. CONCLUSION 9. In view of the foregoing, we conclude that Bednark's original applications are competing applications filed within PPI's 60-day Public Notice period for the filing of competing applications. We, therefore, deny MobileMedia's petition to deny. With this Order, we return Bednark's original applications to pending status. Thus, we dismiss Bednark's petition for reconsideration as moot. Further, we will consider July 9, 1996 as the date Bednark filed the above-referenced applications. V. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED, that pursuant to Sections 4(i) and 309(d) of the Communications Act, as amended, 47 U.S.C.  154(i) and 309(d), authority delegated by Section 0.331 of the Commission's rules, 47 C.F.R.  0.331, and pursuant to Section 22.130 of the Commission's rules, 47 C.F.R.  22.130, the petition to deny filed by MobileMedia Communications, Inc. on April 11, 1997, IS DENIED. 11. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the Communications Act, as amended, 47 U.S.C.  154(i) and 405, authority delegated by Section 0.331 of the Commission's rules, 47 C.F.R.  0.331, and pursuant to Section 1.106 of the Commission's rules, 47 C.F.R.  1.106, the petition for reconsideration filed by James D. Bednark on August 16, 1996, IS DISMISSED as moot. FEDERAL COMMUNICATIONS COMMISSION David L. Furth Chief, Commercial Wireless Division Wireless Telecommunications Bureau