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

In the Matter of                )
                                )
EXPRESS MESSAGE CORPORATION     )  File Nos. 29057-CD-P/ML-96
                                )            28999-CD-P/ML-96
For Authorization to Construct and Operate)            32340-CD-P/ML-96
New Paging and Radiotelephone Service Facilities)           29000-CD-P/ML-96       
on 931.3125 MHz at Various locations)             29058-CD-P/ML-96       
within Texas                    )            32988-CD-P/ML-96   
                                )            27328-CD-P/ML-96       
                                )            27314-CD-P/ML-96
                                )            33034-CD-P/ML-96    
       

                             ORDER


   Adopted:  September 2, 1999          Released:  September 2, 1999

By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications Bureau:

                         I.  INTRODUCTION

     1.   This Order denies a petition for reconsideration (Petition) filed by Express Message
Corporation (Express Message) on January 13, 1999.  Express Message seeks reconsideration of the dismissal
of the above-captioned applications for authorization of paging facilities on the 931.3125 MHz frequency in
various locations in Texas.  For the reasons set forth below, we deny Express Message's Petition. 

                         II.  BACKGROUND

     2.   In its Paging Notice of Proposed Rulemaking, the Commission suspended the acceptance of
all new applications for paging channels that were not received by February 8, 1996 (Paging Application
Freeze).  On April 23, 1996, the Commission modified this decision by establishing interim licensing rules,
which permitted incumbent licensees to file initial applications to add new sites to their systems.  Each new site
must have been located within 65 kilometers (40 miles) of an authorized site for which an application had been
filed as of September 30, 1995.  In addition, the authorized site must have been operational as of the date the
application for the additional site was filed (40-mile applications).  The Commission further explained that
applications that met this requirement would be placed on public notice and subject to competing applications
within the applicable filing window.  Following the adoption of the interim licensing rules, Express Message,
an incumbent licensee on the 931.3125 MHz frequency, filed the above-captioned applications.  Each
application sought authorization for a site within 40 miles of an existing site operated by Express Message. 
The applications were placed on public notice as accepted for filing, but were not granted because the
applications were mutually exclusive with other pending applications.  As a result, the applications were held
in abeyance to be resolved in a manner consistent with the Commission's new geographic area licensing rules
adopted at the conclusion of the rulemaking proceeding.

     3.   On February 24, 1997, the Commission released its Paging Second Report and Order, which
adopted rules governing geographic area licensing of Common Carrier Paging and 929 MHz paging
applications, and competitive bidding procedures for processing mutually exclusive applications for these
licenses.  The Commission stated that, in light of its decision to adopt geographic area licensing, it would
dismiss all pending mutually exclusive paging applications, including those filed under the interim rules adopted
in the Paging First Report and Order.  On December 14, 1998, pursuant to the Paging Second Report and
Order, the Commercial Wireless Division (Division) dismissed all pending mutually exclusive paging
applications (Division Order), including Express Message's above-captioned pending mutually exclusive
applications.  In response, Express Message filed the instant Petition.
     
                         III.  DISCUSSION
   
     4.   Express Message primarily contends that its applications were not mutually exclusive as
defined in the Paging First Report and Order.  To support its contention, Express Message cites the
Commission's statements in the Paging First Report and Order that, in establishing the interim licensing rules
for the paging service, "[i]f no competing application is filed, the incumbent's initial application can be
processed because it is unlikely that the spectrum at issue has significant value to any other applicant.  If a
competing application is accepted for filing, we will treat both applications as mutually exclusive."  Based
on this language, Express Message argues that 40-mile applications filed pursuant to the interim rules can be
deemed mutually exclusive only if a co-channel application was filed within 60 days after the public notice
accepting the 40-mile application for filing.  

     5.   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 of the others applications.  In processing 931
MHz applications, the 60-day public notice period allows parties to file competing applications, but there is
no requirement that an application be filed during the 60-day period to render the applications mutually
exclusive.  The Paging First Report and Order does not state that 40-mile applications would automatically
be granted if no competing applications were filed during the 60-day public notice period.  The Paging First
Report and Order simply states that 40-mile applications would be "processed."  Moreover, the language does
not infer that pending applications filed prior to the Paging Application Freeze would not be considered when
making a determination of whether a 40-mile application was mutually exclusive.  In addition to allowing
incumbents to file 40-mile applications after February 8, 1996, the date of the freeze, the Paging First Report
and Order established procedures for processing 931 MHz applications that had been filed on or before
February 8, 1996, but for which the 60-day public notice period had not expired as of the date of the freeze. 
Specifically, the Commission released a Public Notice on May 10, 1996, attaching copies of prior public
notices identifying pending 931 MHz paging applications that were filed on or before February 8, 1996, but
that had not been on public notice for the required 60 days as of February 8, 1996.  The Commission deemed
all applications "to be restored to Public Notice for the remaining amount of time until the required . . . 60 day
period for filing competing applications expires."

     6.   Contrary to Express Message's assertion, the processing of 40-mile applications took into
consideration any pending applications in the proposed area of the 40-mile applications, including those filed
under restored public notice periods.  Thus, pending applications filed prior to the Paging Application Freeze
could preclude the grant of 40-mile applications, even if no competing applications were filed during the 60-day
public notice period for the 40-mile application.  If there were more pending applications than available
frequencies, the 40-mile application was deemed mutually exclusive and was held in abeyance until the release
of the Division Order.  In this instance, Express Message's above-captioned applications were not granted
because the applications were found to be mutually exclusive with other pending applications in the proposed
areas.  We therefore affirm the dismissal of Express Message's above-captioned applications and deny the
Petition.

     6.   Accordingly, IT IS ORDERED, that, pursuant to Sections 4(i) and 405 of the
Communications Act, as amended, 47 U.S.C.  154(i), 405, and Sections 0.331 and 1.106 of the
Commission's rules, 47 C.F.R.  0.331, 1.106, the petition for reconsideration filed by Express Message
Corporation on January 13, 1999, IS DENIED.

                              FEDERAL COMMUNICATIONS COMMISSION

           

                              William W. Kunze
                              Deputy Chief, Commercial Wireless Division
                              Wireless Telecommunications Bureau