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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) ) UNITED PAGING GROUP, Inc. )File No. 27145-CD-P/L-89 ) For facilities in the Public Land ) Mobile Service at San Diego, Running Springs,) Mt. Vaca, and New Almaden, California) for Station KNKM836) ORDER Adopted: August 14, 1997Released: August 14, 1997 By the Acting Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. This order denies a Petition for Reconsideration, filed June 29, 1992, by United Paging Group, Inc. (United). United seeks reconsideration of the denial by the former Mobile Services Division of the Common Carrier Bureau of its request to reinstate the above-referenced paging facilities. II. BACKGROUND 2. United's authorization for Station KNKM836 required construction to be completed before March 20, 1992. United's authorization automatically expired March 20, 1992, as it failed to timely notify the Commission that construction had been completed. On March 27, 1992, within the 30-day period provided by the rules for seeking reinstatement of an expired authorization, United filed an FCC Form 489 stating that it had completed construction with modifications and requested reinstatement. United's filing stated that Pactel Paging of California (Pactel) agreed to install multi-frequency transmitters at the authorized site and that Pactel will grant United the right to use a mutually agreed-upon amount of the capacity of the base station. 3. By the above-referenced letter, the Chief, Mobile Services Division denied reinstatement of United's authorization. He held that: The change United has proposed to use the facilities of Pactel is not a permissive modification. The original United application did not request authority to use the facilities of a different licensee. Authority to operate in the method United requests would require disclosure and prior approval. Since United has not timely constructed in accordance with its authorization and the proposed modifications can not be done by notification United's request for reinstatement is denied and its authorization is terminated. 4. In its petition for reconsideration, United challenges the finding that use of a multi-frequency transmitter is not a permissive modification that can be reported by an FCC Form 489, without prior approval. United contends that the Commission's rules do not prohibit use of multiple frequency transmitters and that the Commission is aware that their use is a widespread practice in the paging industry. In any event, United argues that its request for reinstatement effectively sought approval for the use of a multi-frequency transmitter, if approval is required. United asserts that denying its request for reinstatement in the absence of a clear policy prohibiting the use of multiple frequency transmitters without prior approval is arbitrary and improper. 5. United maintains that its request for reinstatement is procedurally sound. Relying on AAlert Paging Company of San Francisco, United argues that the Commission does not penalize permittees for constructing after the expiration of authorization during the 30-day period in which a request for reinstatement can be filed. It further contends that under 47 C.F.R.  22.43(d), applicants may construct before receiving specific authorization provided that "certain conditions" are met. It cites T-Com, Inc., for the proposition that the Commission's practice is to reinstate expired construction permits when timely construction cannot be accomplished because of last minute delays. III. DISCUSSION 6. It is unnecessary to reach the issue of whether United can use a multi-frequency transmitter without prior approval because its request for reinstatement is defective for other reasons. Initially, we note that United filed its Petition for Reconsideration before the Commission revised the Part 22 rules in the Part 22 Rewrite Order. Our decision, however, would be the same whether we apply either the old or new rules. Under 47 C.F.R.  22.43(a)(3) (1994), the rule in effect at the time United filed its FCC Form 489, an application for reinstatement of an expired construction permit will be considered only if the applicant demonstrates that the failure to file a timely application for extension or notification of completion of construction was due to causes beyond the applicant's control. United has made no such showing here. 7. In its petition for reconsideration, United explains: As stated in the request for reinstatement, this authorization expired due to . . . last minute delays. Contractual and technical arrangements with another carrier, which was the only feasible approach under the circumstances, could not be completed until March 26, 1992. However, in originally requesting reinstatement, United stated only that: This construction permit expired on March 20, 1992 and until its attorney contacted the company, United Paging Inc. was not aware that the permit had expired. It could not complete the construction until March 26, 1992. 8. These explanations are inadequate justification under former 47 C.F.R.  22.43 (a)(3). If, as its request for reinstatement suggests, United was simply unaware that its permit had expired, this explanation does not constitute a "cause beyond the applicant's control." Its attempt to bolster the explanation in its petition for reconsideration by citing last minute delays is procedurally improper. In any event, even this explanation falls short of the necessary showing. The construction of all facilities involves technical and contractual arrangements and presumably may involve delays. United has failed to allege particular facts that establish circumstances beyond its control. By contrast, the applicant in T-Com made a showing of circumstances beyond its control. 9. Additional authority cited by United similarly provides no support for its position. AAlert does not address the question of reinstatement. Rather, the Mobile Services Division rescinded a forfeiture imposed against AAlert for construction during the 30-day period. The Division reconsidered its prior ruling and held that the Commission's rules did not clearly prohibit construction during the 30-day period. AAlert did not address the question of whether the authorization in question should be reinstated. There is no assertion in the case at hand that a forfeiture should be assessed against United for constructing; the only issue is whether reinstatement is appropriate. AAlert is therefore inapposite. Likewise, it is irrelevant whether United's construction is consistent with the conditions set forth in 47 C.F.R.  22.43(d)(3), which permits construction prior to receiving specific authorization under some circumstances. Even if proper, such construction prior to authorization is at the applicant's own risk, and, thus, United's failure to justify reinstatement is determinative. 10. United's application for reinstatement is equally defective under our currently effective rules. In the Part 22 Rewrite Order, the Commission eliminated the rules permitting reinstatement applications. Our rules now require that carriers request an extension of time to complete construction before the end of the construction period instead of seeking reinstatement after the authorization has automatically terminated. United's failure to file an application for extension of time to complete construction prior to the end of the construction period results in the termination of its authorization under our existing rules. IV. CONCLUSION 11. United has shown no basis to reconsider the denial of its request for reinstatement. The fact that it did not show, under 47 C.F.R.  22.43(a)(3) (1994), that its failure to construct was due to circumstances beyond its control renders its request for reinstatement fatally defective. Likewise, United's failure to request an extension of time to complete construction prior to expiration of its authorization under 47 C.F.R.  22.142(c) (1996) results in termination of its authorization. In view of the foregoing, it is unnecessary to reach questions regarding the use of multi-frequency transmitters. V. ORDERING CLAUSE 12. Accordingly, IT IS ORDERED, that, pursuant to authority delegated by 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 United Paging Group, Inc. on June 29, 1992 IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Daniel B. Phythyon Acting Chief Wireless Telecommunications Bureau