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

                                        )
                                        )
In the Matter of                   )         File No. 32979-CD-ML-95
                                   )
HAZLE-TONE COMMUNICATIONS, INC.    )
                                   )
                                   )
PMS Station KGC397                 )
Duryea, Pennsylvania               )
                                   )
                                 
 
                               ORDER
 
   Adopted:  May 21, 1997               Released:  May 21, 1997

By the Chief, Wireless Telecommunications Bureau:


                         I.  INTRODUCTION
     1.  In this Order, we address an Emergency Motion for Stay and Petition for Reconsideration
filed by Hazle-Tone Communications, Inc.'s ("Hazle-Tone") on November 22, 1996.  Hazle-Tone
requests that the Wireless Telecommunications Bureau ("Bureau") (1) stay the effectiveness of a
November 22, 1996 Letter Order; (2) permit Hazle-Tone to continue to operate on frequency 152.18
MHz; and, (3) order Schuylkill Mobile Fone Inc. ("Schuylkill") to cease and desist from operating
outside of the terms of its authorization.  The Letter Order set aside the Commission's action of June
14, 1995, which authorized Hazle-Tone Station KGC397 to operate on frequency 152.18 MHz at
Duryea, Pennsylvania, and issued a corrected authorization for Station KGC397 to operate on the
correct frequency of 152.66 MHz.  The Letter Order also stated that any further operation of Station
KGC397 on frequency 152.18 MHz at Duryea, Pennsylvania, is not authorized.  

     2.  In addition to Hazle-Tone's pleadings, we address Schuylkill's Petition for Partial
Reconsideration, filed December 23, 1996, requesting the reinstatement of Schuylkill's dismissed
Emergency Petition.  Finally, we address Hazle-Tone's Motion to Strike Schuylkill's November
18, 1996, status request as an unauthorized pleading.  For the reasons discussed below, we deny
Hazle-Tone's Petition for Reconsideration as well as Schuylkill's Petition for Partial Reconsideration. 
Furthermore, we dismiss Hazle-Tone's Motion for Stay as moot and grant Hazle-Tone's Motion to
Strike.  
                                
                        II.  BACKGROUND

     3.  In 1994, Hazle-Tone and Schuylkill filed mutually exclusive applications for frequency
152.18 MHz in Pennsylvania.  Specifically, Hazle-Tone filed to operate Station KGC397 on
frequency 152.18 MHz at Duryea, Pennsylvania, while Schuylkill filed to operate Station KGA589
on frequency 152.18 MHz at Luzerne and Lackawanna, Pennsylvania.  To resolve the mutual
exclusivity, the parties reached a settlement agreement in which Hazle-Tone agreed to amend its
application for Station KGC397 to operate on frequency 152.66 MHz at Duryea, Pennsylvania.  On
June 15, 1994, the Commission granted both Hazle-Tone's amended application for Station KGC397
on 152.66 MHz at Duryea, Pennsylvania, and Schuylkill's application to operate Station KGA589
on frequency 152.18 MHz at Luzerne and Lackawanna, Pennsylvania.  However, the Commission
staff erroneously issued a license to Hazle-Tone for Station KGC397 to operate on frequency 152.18
MHz, instead of frequency 152.66 MHz, for which the application was granted.  

     4.   The erroneous license grant was brought to our attention on November 8, 1996, when
Schuylkill filed its Emergency Petition requesting the Commission to order Hazle-Tone to
immediately cease and desist unlawful operations on frequency 152.18 MHz at Duryea,
Pennsylvania.  Schuylkill alleged the unlawful operations on frequency 152.18 MHz were causing
harmful co-channel interference to Schuylkill's Station KGA589.  Specifically, Schuylkill
maintained that the Commission staff erroneously issued a license to Hazle-Tone for Station
KGC397 to operate on frequency 152.18 MHz, instead of 152.66 MHz for which the application was
granted.  Hazle-Tone filed an Opposition, dated November 12, 1996, alleging that Hazle-Tone's
operations on frequency 152.18 MHz are authorized.  On November 22, 1996, the Division issued
a Letter Order setting aside the authorization, which was the result of a clerical or ministerial error
on the part of Commission staff.  In the Letter Order, the Division also dismissed the Emergency
Petition and related filings, as well as issued a corrected authorization for the operation of Station
KGC397 on frequency 152.66 MHz at Duryea, Pennsylvania.  Finally, the Division stated that any
further operation of Station KGC397 on frequency 152.18 MHz at Duryea, Pennsylvania, is not
authorized.

     5.   On November 22, 1996, Hazle-Tone filed both an Emergency Motion for Stay and a
Petition for Reconsideration.  On November 29, 1996, Schuylkill filed oppositions to both.  On
December 3, 1996, Hazle-Tone filed a reply.  In addition, Schuylkill filed a letter dated November
18, 1996, requesting the status of its Emergency Petition.  On December 23, 1996, Schuylkill also
filed a Petition for Partial Reconsideration, requesting that the Commission reinstate Schuylkill's
dismissed Emergency Petition and subsequent filings due to Hazle-Tone continuing to operate on
frequency 152.18 MHz.  On December 30, 1996, Hazle-Tone filed an Opposition, and on January
6, 1997, Schuylkill filed a Reply. 
  
                        III.  DISCUSSION

     6.  Hazle-Tone makes four primary arguments in its Petition for Reconsideration: (1) the
Commission's power to correct a ministerial error is not unbounded; (2) the Letter Order failed to
comply with the Communications Act of 1934, as amended, because the Commission did not
provide Hazle-Tone with the statutorily required hearing prior to setting aside the authorization; (3)
the documentary information demonstrates that Schuylkill is operating Station KGA589 at more than
ten times the authorized effective radiated power; and, (4) Hazle-Tone was not given a reasonable
period of time in which to move its users to frequency 152.66 MHz. 
      
     7.  First, Hazle-Tone avers that, according to the Commission's decision in Radio Para La
Raza, "the courts have noted a strong policy in favor of administrative finality, and have held that
proceedings that have become final will not be reopened unless there has been fraud on the agency's
or the court's processes, or unless the result is manifestly unconscionable."  Hazle-Tone alleges that
there was no fraud on the Commission by Hazle-Tone and the result of the Commission's action was
not manifestly unconscionable.    

     8.   Hazle-Tone also maintains that although there may have been a ministerial error, there
is no certainty as to what the error was.  Hazle-Tone states that there might have been a ministerial
error in issuing an instrument of authorization to Hazle-Tone for frequency 152.18 MHz, or in
granting the application to Schuylkill for use on frequency 152.18 MHz, or in the 1994 Public Notice
granting Hazle-Tone an authorization on frequency 152.66 MHz.    

     9.  In its Opposition, Schuylkill states that Hazle-Tone's argument that there is uncertainty
as to what the ministerial error is a specious argument and one made in bad faith.  Schuylkill
alleges that in applying Hazle-Tone's argument, the Commission would have intended to violate its
own rules under Part 22 and the Supreme Court's decision in Ashbacker Radio Corp. v. FCC, by
granting two applications in frequency conflict in the same geographic area.  Schuylkill states that
in order to issue an authorization, the Commission must first grant an underlying application, 47
U.S.C.  308(a), and list that application on Public Notice as having been granted.  Schuylkill
responds to Hazle-Tone's argument that the 1994 Public Notice was defective by emphasizing that
the 1994 Public Notice (1) granted Hazle-Tone an authorization at 152.66 MHz, and (2) did not grant
Hazle-Tone an authorization at 152.18 MHz.  Schuylkill maintains that the Commission could not
have granted Schuylkill and Hazle-Tone authority to use 152.18 MHz within interfering proximity
without the parties' mutual consent.  Schuylkill alleges that without the right to participate in a
hearing, or lottery or an auction under 47 U.S.C.  309(e), (i) or (j), such action would be a violation
of Schuylkill's Ashbacker rights.
     
     10.  The final action in this matter was the grant of Hazle-Tone's application for frequency
152.66 MHz at Duryea, Pennsylvania, and the grant of Schuylkill's application for frequency 152.18
MHz at Luzerne and Lackawanna, Pennsylvania as set forth in the 1994 Public Notice.  The Letter
Order merely corrected our subsequent clerical error issuing the authorization to Hazle-Tone listing
152.18 MHz rather than on 152.66 MHz as the authorized frequency.  Administrative agencies have
the power and the duty to correct clerical or ministerial errors without any further hearing or
administrative process.  

     11.  We agree with Schuylkill that Hazle-Tone's arguments are without merit.  The
Commission did not intend to authorize Schuylkill and Hazle-Tone on the same frequencies in the
same geographic area, as that would have been in violation of the Commission's rules under 47
C.F.R.  22.351 and 22.352.  The ministerial error was the insertion of the wrong frequency,
152.18 MHz at Duryea, Pennsylvania, for Station KGC397 on the authorization the Commission
issued to Hazle-Tone.  In their settlement agreement, Hazle-Tone agreed to accept frequency 152.66
MHz and Schuylkill agreed to accept frequency 152.18 MHz to resolve the frequency conflict.  The
Commission granted the agreed upon frequencies to the parties in the 1994 Public Notice. 
Furthermore, the Commission can correct a clerical error on a license without any further hearing
or administrative process.  Hazle-Tone also alleges that the Letter Order did not include the
required determination that changing the frequency assigned to Hazle-Tone would promote the
public convenience, interest, or necessity.  When the Commission granted Hazle-Tone's application
for frequency 152.66 MHz on June 15, 1994, we determined that the frequency assigned to Hazle-
Tone was in the public interest.  Consequently, in our issuance of the corrected authorization to
Hazle-Tone for frequency 152.66 MHz and allowing Schuylkill to operate on its authorized
frequency of 152.18 MHz without interference, we need not reexamine the issue.

     12.  We remind Hazle-Tone that our rules prohibit the filing of frivolous pleadings or
pleadings filed for the purpose of delay in proceedings before the Commission or its staff.  We
intend to fully utilize our authority under Section 1.52 of our rules to discourage and deter the filing
of such pleadings and to impose appropriate sanctions where such pleadings are filed. Thus, we are
referring this matter to the Bureau's Enforcement Division. 

     13.  Next, Hazle-Tone argues that since November 21, 1996, documentary information has
become available which demonstrates that Schuylkill is operating Station KGA589 at more than ten
times the effective radiated power that Schuylkill is authorized to use.  Hazle-Tone maintains that
because Schuylkill is not operating in accordance with its authorization, the Commission is in error
in providing any protection to Schuylkill's unauthorized use of 152.18 MHz.  

     14.  In its Opposition, Schuylkill alleges both that its 152.18 MHz operations at Penobscot
Hill are in accordance with its license and, furthermore, that the status of such operations are
irrelevant to the decisional basis for the Letter Order.  Schuylkill alleges that on November 13,
1996, an employee of R.F. Communications ("R.F.") made an unauthorized inspection of
Schuylkill's 152.18 MHz facilities in a locked equipment room at Penobscot Hill, at Hazle-Tone's
behest.  Schuylkill asserts that the President of Schuylkill personally inspected its facilities on
November 23, 1996, and found that the 152.18 MHz transmitting equipment showed signs of
tampering.  (Schuylkill reports that it will address this allegedly unlawful behavior in a separate
filing).  Schuylkill alleges that there was no discernible output being registered on the station's
internal watt meter and the problem was traced to a bad power amplifier circuit board.  Also,
Schuylkill avers that tests revealed a very high standing wave ratio, which was traced to a broken
pin in the transmission line connector assembly.  Schuylkill maintains that after verifying and
setting frequency, modulation, and power output settings, its 152.18 MHz facilities were placed back
on the air.

     15.  The status of Schuylkill's operations are irrelevant to the decisional basis for the
Division's action in the Letter Order.  Although both parties agree that there was a problem
discovered with Schuylkill's operations at some time after the Letter Order, we do not believe that
this problem rises to a level at which Schuylkill should not be allowed to operate on its assigned
channel.  In addition, we believe the problem was limited in nature and was quickly corrected.     
     

     16.  Finally, Hazle-Tone argues that the Commission did not provide Hazle-Tone with a
reasonable time period to move its users to frequency 152.66 MHz.  The Letter Order stated that
Hazle-Tone was no longer authorized to operate Station KGC397 on frequency 152.18 MHz at
Duryea, Pennsylvania.  Hazle-Tone further argues that until all its subscribers have an opportunity
to exchange their equipment, they need to continue to receive reliable service on 152.18 MHz.  In
its Opposition to Emergency Motion for Stay, Schuylkill states that if Hazle-Tone has any customers
on frequency 152.18 MHz, Schuylkill already has offered to transfer them at Schuylkill's expense
to the 152.66 MHz frequency.  Schuylkill maintains that offer was declined and any harm Hazle-
Tone suffers is of its own making.  Hazle-Tone acknowledges Schuylkill's offer, but argues that
it was made prior to any litigation in the instant matter and would have required Hazle-Tone to
provide Schuylkill with its customer list -- which is competitively sensitive information.

     17.  We believe it is in the public interest to allow a properly authorized licensee to operate
on its frequency without interference.  The interference caused to Schuylkill on frequency 152.18
MHz warrants Hazle-Tone's immediate termination of its use of frequency 152.18 MHz.  As asserted
in Schuylkill's Emergency Petition, a local fire department, one of Schuylkill's subscribers, missed
a fire call as a result of Hazle-Tone's operations on 152.18 MHz.  In addition, Schuylkill alleges
that as of November 29, 1996, Hazle-Tone remains on the air on frequency 152.18 MHz and
continues to cause harmful electrical interference to Schuylkill's co-channel operations.  Although
Hazle-Tone alleges harm to its subscribers, which has not been documented, Hazle-Tone is not the
proper licensee to operate on frequency 152.18 MHz at Duryea, Pennsylvania.  Hazle-Tone amended
its application to request frequency 152.66 MHz and we granted that application in the 1994 Public
Notice.  Hazle-Tone has been issued a corrected authorization and may operate on frequency 152.66
MHz at Duryea, Pennsylvania.  In addition, based on the allegations of Hazle-Tone's continuing
operations on frequency 152.18 MHz at Duryea, Pennsylvania, in violation of our Letter Order, we
will refer this case to the Bureau's Enforcement Division for further investigation.
 
                     IV.  ORDERING CLAUSES
     18.  Accordingly, IT IS ORDERED pursuant to Sections 4(i) and 405(a) of the
Communications Act, as amended, 47 U.S.C.  154(i), 405(a) and Section 1.106 of the
Commission's Rules, 47 C.F.R.  1.106 that Hazle-Tone Communications, Inc.'s Petition for
Reconsideration IS DENIED and the Motion for Stay filed by Hazle-Tone Communications, Inc. IS
HEREBY DISMISSED as moot. 

     19.  IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 405(a) of the
Communications Act, as amended, 47 U.S.C.  154(i), 405(a) and Section 1.106 of the
Commission's Rules, 47 C.F.R.  1.106 that Schuylkill Mobile Fone, Inc.'s Petition for Partial
Reconsideration IS DENIED.  
     
     20.  IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as
amended, 47 U.S.C.  154(i) that the Petition for Stay filed by Hazle-Tone Communications, Inc. IS
DENIED.  

     21.  IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as
amended, 47 U.S.C.  154(i) and Section 1.45(c) of the Commission's rules, 47 C.F.R.  1.45(c) that
the Motion to Strike Unauthorized Pleading filed by Hazle-Tone Communications, Inc. IS
GRANTED.

     22.  IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as
amended, 47 U.S.C.  154 (i) Hazle-Tone's continued operations on frequency 152.18 MHz at
Duryea, Pennsylvania in violation of the Letter Order, the matter is hereby referred to the Wireless
Telecommunications Bureau's Enforcement Division for further investigation.
     
     23.  IT IS FURTHER ORDERED, pursuant to Section 4(i) of the Communications Act, as
amended, 47 U.S.C.  154(i) that this Order is effective upon release.

     24.  This action is taken pursuant to authority delegated by Section 0.331 of the Commission's
Rules, 47 C.F.R.  0.331.

                         FEDERAL COMMUNICATIONS COMMISSION
                         



                         Daniel B. Phythyon
                         Acting Chief, Wireless Telecommunications Bureau