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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 the Matter of ) ) DIAL-A-PAGE, INC. ) File Nos. 21984-CD-P/ML-95 ) 21878-CD-P/L-95 For PLMS Facilities on the ) 21784-CD-P/L-95 Frequency 931.2375 MHz at ) 22094-CD-P/ML-95 Pensacola, FL; Panama City, FL; ) 22311-CD-P/L-95 Mobile, AL; Baxley, GA; Savannah GA) 22315-CD-P/L-95 and Webb, AL ) ORDER Adopted: August 27, 1999 Released: August 27, 1999 By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. This Order denies, in part, and dismisses, in part, the petition to deny (Petition) filed by Priority Communications, Inc. (Priority) on December 8, 1994, against the above-captioned applications of Dial-A-Page, Inc. (Dial-A-Page), the predecessor-in-interest to Teletouch Licenses, Inc. In its applications, Dial-A-Page requests assignment on frequency 931.2375 MHz and Priority seeks denial of the applications. For the reasons discussed below, we deny the Petition to the extent that it seeks denial of the Pensacola, Florida; Panama City, Florida; Mobile, Alabama; Savannah, Georgia; and Webb, Alabama applications. We dismiss the Petition as moot to the extent it seeks denial of the Baxley, Georgia application. 2. In October 1994, Dial-A-Page filed the above-captioned applications requesting assignment on frequency 931.2375 MHz at locations in Florida, Alabama, and Georgia. In November and December 1994, Priority filed applications to expand its existing system and requested assignment on the same frequency, 931.2375 MHz, at nearby locations in Florida and Georgia. Priority argues that five of the applications, if granted, would be "located within 70 miles of Priority's expansion applications, and are, therefore, mutually exclusive with Priority's expansion applications." We disagree. Two or more pending applications are mutually exclusive if the grant of one application would effectively preclude the grant of one or more other applications. An applicant for a 931 MHz frequency does not create mutually exclusivity simply by filing an application and requesting the same frequency and location as requested by another application. 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. If 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. When we considered Dial-A-Page's applications, there were at least as many frequencies available for assignment as there were pending applications. Thus, Dial-A-Page's applications are not mutually exclusive with Priority's expansion applications. 3. Priority further argues that it "requires the frequency 931.2375 MHz for co-channel geographic expansion of its 931.2375 MHz system." For example, Priority contends that if Dial-A-Page's Panama City application is granted, it "would bisect Priority's existing Gulf Coast system from its proposed Gulf Coast station at Pensacola." Under the Commission's procedures, however, 931 MHz applications are processed one at a time, in the order they are received. Because Dial-A-Page's applications were received before Priority's applications, Dial-A-Page was assigned its preferred frequency of 931.2375 MHz. Priority was assigned alternative frequencies because 931.2375 MHz was no longer available. We therefore deny Priority's Petition to the extent that it seeks to deny the Pensacola, Florida; Panama City, Florida; Mobile, Alabama; Savannah, Georgia; and Webb, Alabama applications, and grant Dial-A-Page's applications for those same locations. 5. Finally, we dismiss the Petition as moot with respect to Dial-A-Page's Baxley, Georgia application. While the Petition was pending, the Narrowband Branch granted Dial-A-Page's application for Baxley, Georgia. Dial-A-Page, however, failed to construct and the authorization terminated on March 15, 1996. Accordingly, we dismiss the Petition as moot to the extent it seeks to deny the Baxley, Georgia application. 6. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, and sections 0.331 and 22.132(b) of the Commission's rules, 47 C.F.R.  0.331, 22.132(b), the petition to deny filed by Priority Communications, Inc. against File Nos. 21984-CD-P/ML-95 (Pensacola, Florida); 21878-CD-P/L-95 (Panama City, Florida); 21784-CD-P/ML- 95 (Mobile, Alabama); 22311-CD-P/L-95 (Savannah, Georgia); and 22315-CD-P/L-95 (Webb, Alabama) IS DENIED. 7. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, and sections 0.331 and 22.132(b) of the Commission's rules, 47 C.F.R.  0.331, 22.132(b), the applications filed by Dial-A-Page, Inc. under File Nos. 21984-CD- P/ML-95 (Pensacola, Florida); 21878-CD-P/L-95 (Panama City, Florida); 21784-CD-P/ML-95 (Mobile, Alabama); 22311-CD-P/L-95 (Savannah, Georgia); and 22315-CD-P/L-95 (Webb, Alabama) ARE GRANTED. 7. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 309 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309, and sections 0.331 and 22.130(c) of the Commission's rules, 47 C.F.R.  0.331, 22.130(c), the petition to deny filed by Priority Communications, Inc. against File No. 22094-CD-P/ML-95 (Baxley, Georgia) IS DISMISSED as moot. FEDERAL COMMUNICATIONS COMMISSION Paul D'Ari Chief, Policy and Rules Branch Commercial Wireless Division Wireless Telecommunications Bureau