******************************************************** 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 ) ) Bell Atlantic-Pennsylvania, Inc.) File No. 27245-CD-P/ML-94 ) For Authorization to Construct and Operate) New Paging and Radiotelephone Service Facilities) on 152.63 MHz at Reading, Pennsylvania) ORDER Adopted: August 16, 1999 Released: August 16, 1999 By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. This Order grants, in part, the Petition for Reconsideration (Petition) filed by Schuylkill Mobile Fone, Inc. (SMFI) on January 7, 1999, seeking reconsideration of the grant of Bell Atlantic- Pennsylvania, Inc.'s (Bell Atlantic) above-captioned application for a new base station facility on frequency 152.63 MHz at Reading, Pennsylvania. For the reasons discussed below, we void the grant of Bell Atlantic's application and dismiss the application pursuant to the Second Report and Order in WT Docket No. 96-18. 2. On June 16, 1994, Bell Atlantic filed an application for authorization to construct and operate a new transmitting facility in the paging and radiotelephone service on frequency 152.63 MHz in Reading, Pennsylvania. On September 19, 1994, SMFI filed an application for authorization to construct and operate a new transmitting facility in the paging and radiotelephone service on frequency 152.63 MHz in Summit Station, Pennsylvania. Because these applications were mutually exclusive, neither Bell Atlantic nor SMFI's application were granted. Both applications remained pending in the Commission's database. 3. On February 24, 1997, the Commission released the Second Report and Order in WT Docket No. 96-18, adopting rules effecting a transition from site-specific licensing to geographic area licensing for exclusive, non-nationwide paging channels in the 35-36 MHz, 43-44 MHz, 152-159 MHz, 454-460 MHz, 929- 930 MHz, and 931-932 MHz bands, and competitive bidding procedures for selecting among mutually exclusive applications for non-nationwide geographic area paging licenses. To facilitate this transition to geographic area licensing, the Commission decided that all pending mutually exclusive paging applications would be dismissed. On December 14, 1998, the Commercial Wireless Division, Wireless Telecommunications Bureau, under authority delegated in the Second Report and Order, released an order intending to dismiss all pending mutually exclusive paging applications (Division Order). Bell Atlantic's pending mutually exclusive application, however, was inadvertently omitted from the Division Order. Because the competing applications that were mutually exclusive with Bell Atlantic's application had been dismissed by the Division Order, Bell Atlantic's application no longer appeared to be mutually exclusive in the Commission's database. As a result, on December 15, 1998, the Division granted Bell Atlantic's application. SMFI argues that granting Bell Atlantic's application contravenes the intent of the Second Report and Order, and requests that the Bureau rescind the grant of the application. 4. The grant of Bell Atlantic's application was obviously the result of clerical or "ministerial" error and the courts have long recognized that administrative agencies may correct inadvertent, ministerial errors. Bell Atlantic's application should not have been granted because it was a pending mutually exclusive application that should have been dismissed in the Division Order. Further, the grant of Bell Atlantic's application was in violation of Section 309(j) of the Communications Act, which requires the Commission to grant mutually exclusive applications "through a system of competitive bidding." The grant also violates Section 22.131 of the Commission's rules, which sets forth procedures for processing mutually exclusive applications. It is well settled law that an agency's failure to follow its own regulations "is fatal" to the errant action and a failure to comply with the requirements of the Communications Act can be no less fatal, especially where the "errant action" was inadvertent. As a result, the grant of Bell Atlantic's application is without force or effect. Accordingly, we void the grant to Bell Atlantic of the authority to construct and operate on frequency 152.63 MHz at Reading, Pennsylvania and dismiss its application in accordance with the Second Report and Order. 5. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 405, and Sections 0.331 and 1.106 of the Commission's rules, 47 C.F.R.  0.331 and 1.106, the Petition for Reconsideration filed by Schuylkill Mobile Fone, Inc. on January 7, 1999, IS GRANTED IN PART. 6. IT IS FURTHER ORDERED that the grant of the application (File No. 27245-CD-P/ML-94) of Bell Atlantic-Pennsylvania, Inc. for a new base station facility on frequency 152.63 MHz at Reading, Pennsylvania IS DECLARED VOID. 7. IT IS FURTHER ORDERED that, pursuant to the Second Report and Order in WT Docket No. 96-18, the application (File No. 27245-CD-P/ML-94) of Bell Atlantic-Pennsylvania, Inc. for a new base station facility on frequency 152.63 MHz at Reading, Pennsylvania IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Paul D'Ari Chief, Policy and Rules Branch Commercial Wireless Division Wireless Telecommunications Bureau