Subject: [NEXTEL-1] JEN-SHENN SONG v. The Nexthell

From: Marcel <[email-masked]>
Date: Mon, 13 Jan 2003 13:48:18 -0500

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

JEN-SHENN SONG

Renewal Application for Station WNKS326 and Request for Waiver of Section 1.949(a) of the
Commission’s Rules )
)

File No. D139187

SECOND ORDER ON RECONSIDERATION

Adopted:  January 10, 2003 Released:  January 13, 2003

By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless
Telecommunications Bureau:

I. INTRODUCTION

1. This order denies the petition filed by Nextel License Holdings 4, Inc. (Nextel) on
April 4, 2002,  seeking reconsideration of an order released by the Commercial Wireless
Division’s Policy and Rules Branch on March 5, 2002 (March 5 Order).   The March 5 Order
affirmed an earlier order released on February 26, 2002 (February 26 Order), which granted
in part a petition filed by Jen-Shenn Song (Song) seeking reconsideration of dismissal of
Song’s renewal application for Station WNKS326.
II. BACKGROUND

2. Song was granted a five-year license for Specialized Mobile Radio (SMR) Station
WNKS326, on July 14, 1988.   After constructing facilities for this station, Song
dismantled them and terminated service on April 8, 1992.   Billy J. Rutledge (Rutledge)
was awarded a dispositive finder’s preference on February 16, 1993, for Station WNKS326
and Song was notified that his license had automatically terminated as of that date.
Song’s petition seeking reconsideration of the February 16, 1993 action was denied on May
21, 1993,  and he filed an application for review on June 21, 1993.

3. Song filed an application for renewal in July 1993, which was not processed because the
application for review was still pending at the time.  On June 17, 1998, Nextel was
granted a geographic area license, which included the spectrum that had been licensed to
Song under call sign WNKS326 in the Tacoma, Washington area, subject to Song’s pending
application for review.  In October 1998, the Licensing and Technical Analysis Branch
inadvertently put Song’s July 1993 renewal application back into the processing queue and
granted the application, extending the expiration date from July 1998, to February 12,
1999.

4. On April 8, 1999, the Commission resolved the issues raised in Song’s application for
review by releasing its Finder’s Preference Order.  Specifically, the Commission granted
Song’s application for review, denied Rutledge’s finder’s preference request, and
reinstated Song’s license for WNKS326.   The Finder’s Preference Order, however, did not
provide an expiration date or a construction deadline for the reinstated license.

5. Song was out of the country when the Licensing and Technical Analysis Branch granted
his July 1993 renewal application and the Commission released its Finder’s Preference
Order.  After returning from his business trip, Song found that: (1) Rutledge’s finder’s
preference request had been denied and Song’s license had, therefore, been reinstated; and
(2) his license automatically terminated on February 12, 1999, because of his failure to
file a timely renewal application.  On March 20, 2000, Song submitted an application for
renewal together with a request for waiver of the filing deadline for renewal
applications.  The waiver request was denied and the renewal application dismissed on
January 31, 2001.  Song filed his petition for reconsideration on February 28, 2001, and
Nextel filed its opposition on March 14, 2001.  In response to Song’s petition, the Policy
and Rules Branch released its February 26 Order.  The February 26 Order reversed the
Licensing and Technical Analysis Branch’s October 1998 decision to renew Song’s license
and extend the expiration date to February 12, 1999.  The order established, pursuant to
the Finder’s Preference Order, an expiration date as well as a construction deadline of
February 26, 2003, for Song’s reinstated license.  It also dismissed Nextel’s opposition
as late-filed.

6. In its March 5 Order, the Policy and Rules Branch, on its own motion, reversed its
decision to dismiss Nextel’s Opposition as untimely filed.  In this order, the Policy and
Rules Branch addressed the arguments raised by Nextel’s Opposition, but affirmed the
decision to establish a construction deadline and expiration date of February 26, 2003,
for Song’s license.  On April 4, 2002, Nextel filed a Petition for Reconsideration of the
March 5 Order.

III. DISCUSSION

7. We reject Nextel’s argument that Song’s license automatically cancelled ninety days
after the Commission reinstated his
license in the April 8, 1999 Finder’s Preference Order.  Nextel cites Section 90.631(f) of
the Commission’s rules, which provides that “[a]n SMR licensee with facilities that have
discontinued operations for 90 continuous days is presumed to have permanently
discontinued operations.”   According to Nextel, Song’s failure to resume operations
resulted in the automatic cancellation of the license ninety days following reinstatement,
or July 8, 1999.   We disagree.  Section 90.631(f) does not apply to trunked SMR stations
that were taken out of service before June 5, 1995, the effective date of the rule.
Rather, Section 90.157 of the Commission’s rules, which provides that any station that
does not operate for one year or more is considered to have permanently discontinued
operations, applies to stations taken out of service on or before the effective date of
Section 90.631(f).   Because Song dismantled the station’s facilities on April 8, 1992,
prior to June 5, 1995, the one-year rule applies.  Song’s license therefore did not cancel
automatically on July 8, 1999, and the spectrum associated with Station WNKS326 did not
revert to Nextel.

8. In the February 26 Order, we reasonably determined that Song’s deadline for placing
Station WNKS326 into operation will be February 26, 2003, twelve months from the release
date of the February 26 Order.  As we discussed in that order, the Finder’s Preference
Order reinstating Song’s license did not provide an expiration date or construction
deadline, and we decline to establish these deadlines retroactively.   In reinstating
Song’s license, the Commission was aware that Song had dismantled the facilities for
Station WNKS326, and we believe it intended to provide Song with a reasonable period of
time to reconstruct those facilities.   We therefore established an expiration date based
on the twelve-month construction period allowed under the Commission’s rules for trunked
SMR systems.   We reject Nextel’s argument that granting relief to Song “rewards” his
inattention and lack of diligence.   The Commission has considered the factual
circumstances surrounding this case in its Finder’s Preference Order, and made a
determination that Song is entitled to relief.  The February 26 Order is, therefore,
consistent with the Commission’s Finder’s Preference Order.

9. Finally, we reject Nextel’s argument that, because we did not reinstate Song’s license
nunc pro tunc, Song must select a new site that will protect Nextel’s co-channel
facilities.   When Nextel bid on the channels associated with Station WNKS326 in the
Tacoma, Washington area, Nextel was on notice that pending claims to the spectrum might
affect the availability of that spectrum.  Prior to the 800 MHz upper band auction, the
Wireless Telecommunications Bureau notified potential bidders that pending matters might
not be resolved before the auction, and warned bidders that they were solely responsible
for investigating and evaluating the degree to which any pending matter might affect
spectrum availability in areas where they sought Economic Area licenses.   Thus, Nextel
was on notice that pending claims, including Song’s, could affect the availability of the
spectrum.  Because Song’s claims preserved his original license at the originally licensed
site, we will not require Song to select a new site.

IV. ORDERING CLAUSE

10. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 4(i), 303(r), and 405 of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, and Sections 0.331 and
1.106 of the Commission’s rules, 47 C.F.R. §§ 0.331, 1.106, the Petition for
Reconsideration filed by Nextel License Holdings 4, Inc. on April 4, 2002,

IS DENIED.
FEDERAL COMMUNICATIONS COMMIS

Paul D’Ari
Chief, Policy and Rules Branch
Commercial Wireless Division
Wireless Telecommunications Bureau

 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-70A1.doc

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From: Rick Parrish <[email-masked]>
Date: Mon, 13 Jan 2003 19:52:27 -0600

Marcel wrote:

facilities.

Don't you just love the sound of lawyer-speak?

-rick

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From: "Todd Ellis" <[email-masked]>
Date: Tue, 14 Jan 2003 05:39:50 -0500

It gets me pretty excited...my oldest kid is taking Latin I right now, so it
gives me a chance to prove that people DO use them fancy words once in a
while...and my smarty-pants little girl who wants to be like Sandra Bullock
on "2 Week Notice" will probably use that phrase in a sentence on me in the
coming days...
  -----Original Message-----
  From: Rick Parrish [mailto:[email-masked]]
  Sent: Monday, January 13, 2003 8:52 PM
  To: [email-masked]
  Subject: Re: [NEXTEL-1] JEN-SHENN SONG v. The Nexthell

  Marcel wrote:

9. Finally, we reject Nextel’s argument that, because we did not reinstate
Song’s license
nunc pro tunc, Song must select a new site that will protect Nextel’s
co-channel
facilities.   Don't you just love the sound of lawyer-speak?

  -rick

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