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

In re Application of            )
                                )
CASIMER ZAREMBA                 )  File No. 22353-CD-P/L-95
                                )
For Reconsideration of an Authorization)
for a Facility in the 931 MHz Band)
in the Paging and Radiotelephone Service)
                                 


                    ORDER ON RECONSIDERATION


   Adopted:  August 19, 1999            Released:  August 23, 1999

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

     1.   This Order denies a Petition for Reconsideration, filed on July 22, 1996, of an action taken
by the Commercial Wireless Division's Narrowband Branch (Petition).  In its license application, Clear
Paging, Inc. (Clear Paging) requested frequency 931.6125 MHz.  That frequency, however, was granted to
Casimer Zaremba (Zaremba) for the above-captioned application.  Clear Paging seeks recision or revocation
of Zaremba's grant and return of that application to pending mutually exclusive status with Clear Paging's
application.  For the reasons discussed below, we deny the Petition.

     2.   Section 405(a) of the Communications Act of 1934, as amended, provides that "a petition for
reconsideration must be filed within thirty days from the date upon which public notice is given of the order,
decision, report, or action complained of."  The grant of 931.6125 MHz to Zaremba appeared on Public
Notice on February 21, 1996.  The Petition, however, was not filed with the Commission until July 22 1996. 
We therefore dismiss the Petition because it was not timely filed.

     3.   Even if the Petition had been timely filed, the Narrowband Branch properly acted upon  the
applications filed by Zaremba and Clear Paging.  Section 22.31(b) of the Commission's rules provides, in
relevant part, that an application must be received within "[s]ixty (60) days after the date of the public notice
listing the first of the conflicting applications as accepted for filing" to be entitled to comparative
consideration.  Applications filed within that 60-day cut-off period are mutually exclusive "if their conflicts
are such that the grant of one application would effectively preclude by reason of harmful electrical
interference, or other practical reason, the grant of one or more of the other applications."

     4.   Clear Paging is incorrect in its assertion that its application and Zaremba's application were
mutually exclusive because Clear Paging filed its application requesting the same frequency within 60 days
after public notice of the acceptance of Zaremba's application.  An applicant for a 931 MHz frequency does
not create mutually exclusivity simply by filing an application within the 60-day cut-off period and requesting
the same frequency and location as requested by the first of the conflicting applications.  Section 22.501(p)(2)
of the Commission's rules provides that applicants for 931 MHz paging channels may specify a frequency
preference in their applications, but that "the Commission is not bound by such requests."  Because the
Commission is not required to grant an applicant its frequency preference, applications for the same 931 MHz
frequency in the same area are not mutually exclusive when there are enough other 931 MHz frequencies
available for assignment to the other applications.  In the case where other 931 MHz frequencies are available,
the grant of one application does not effectively preclude the subsequent grant of another application on another
931 MHz frequency.

     5.   When we considered the applications that were filed within Zaremba's 60-day "cut-off" period,
there were more frequencies available for assignment than there were applications.  Thus, we granted Zaremba
an authorization on 931.6125 MHz and, within that group of applications, other frequencies were available
to other applicants, including Clear Paging.  Accordingly, the two applications were not mutually exclusive
because the grant of Zaremba's application did not effectively preclude the subsequent grant of Clear Paging's
application.  Therefore, we deny the Petition and affirm the initial grant to Zaremba of frequency 931.6125
MHz.

     6.   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 IS DENIED.



                              FEDERAL COMMUNICATIONS COMMISSION



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