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



In the Matter of                        )
                                   )
CHAMPLAIN WATER DISTRICT           )
Call Sign WPIW926, South Burlington, Vermont   )            
                                   )
and                                )    
                                   )
WELLS COMMUNICATION                )     File No. A013574
SERVICES, INC.                     )                 



                              ORDER


   Adopted:  October 13, 1999                                  Released: October 14, 1999

By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:


                        I.  INTRODUCTION 

     1.  The Champlain Water District (District) has submitted a petition requesting that the
Compliance and Information Bureau (CIB) investigate interference to the District's communications
operations that the District believes was caused by Wells Communications (Wells), and that the Wireless
Telecommunications Bureau (WTB) hold or dismiss a pending application filed by Wells.   For the
reasons discussed below, we grant the District's Petition and dismiss the above-captioned Wells
application. 


                         II.  BACKGROUND 

     2.  On December 4, 1995, the District was granted a license for Call Sign WPIW926, South
Burlington, Vermont, to use the frequency pair 452/457.0125 MHz for a Supervisory Control and Data
Acquisition (SCADA) system in connection with its water plant operations.  The District states that in
December 1997, its SCADA system began receiving intermittent data errors.  It also states that, during the
same time period, it received a call from Wells complaining that the District was causing interference to a
Wells customer, W.A. Bushey and Son (Bushey), operating under Call Sign KZC283, Lyon Mountain,
New York, authorized on 452/457.0250 MHz (12.5 kHz removed from the District's operating frequency). 


     3.  On February 3, 1998, Wells filed an application to assign the license for Call Sign KZC283
from Bushey to Wells, and to make certain modifications to the license.  The application was returned to
Wells on May 7, 1998, because Canadian coordination could not be obtained for the proposed
modifications. 

     4.  On April 24, 1998, Wells asked the International Telecommunications Association, Inc. (ITA),
an FCC-certified frequency coordinator for private land mobile radio services, for an ITA Compliance
Report.  The Wells request detailed interference to the Bushey system caused by the District's SCADA
system.  On May 22, 1998, ITA informed the District that because its SCADA system transmits
continuous data without a monitoring capability, ITA considered the District to be operating on a
secondary basis with respect to Bushey.  

     5.  On June 8, 1998, the District responded to ITA, stating that it disagreed with ITA's conclusion,
and that the District's operations were not secondary to the "apparent illegal operation" of Call Sign
KZC283.  On June 16, 1998, the District filed its Petition with the CIB and WTB requesting that they (a)
investigate this matter and determine if there was unlicensed activity on 452/457.0250 MHz from Lyon
Mountain, and (b) hold the granting of the pending Wells application until the interference mechanisms
could be reviewed and a solution found.  Accompanying the Petition was an interference study, dated June
8, 1998, prepared by the District's contractor, Clark Communications Electronics (Clark).  Clark states
that Bushey reportedly went out of business several years earlier following the death of Mr. Bushey. 
Clark further states that monitoring of Station KZC283 indicated that two or more entities were
transmitting on 452.0250 MHz.  Clark also states that the Bushey equipment reportedly had been
purchased and was being used by Wells.  In addition, 
Clark indicates that Wells had been paying the Lyon Mountain site lease fee for at least a year.    

     6.  In an August 3, 1998, letter to CIB, ITA stated that it had conducted an investigation into the
interference issues raised in the Petition and determined that the District was causing harmful interference
to Station KZC283.  ITA recommended that the Commission (a) determine the validity of the Bushey
license, and (b) determine if the District is operating within the boundaries of its authorization, and if so,
assign Wells an alternate frequency that would be more appropriate than 452.025 MHz.

     7.  CIB's investigation of this matter has revealed the following:

     (a)  Mr. Bushey is deceased and W.A. Bushey and Son, which is out of business, sold its repeater
equipment and tower space to Wells on February 13, 1995.     
     (b)  Wells stated that it applied to the FCC to assign the license for Station KZC283 in February
1995, but Wells could not provide any evidence of such a filing.  Wells operated under Bushey's license
while awaiting a new license.  
     (c)  A renewal application for Station KZC283 was filed on September 11, 1995, by Shirley
Bushey, but the renewal fee was paid with a check from Wells.  Wells claims that nothing was ever heard
from the Commission.  
     (d)  Wells no longer operates on 452/457.0250 MHz, and the District no longer experiences
interference.


                         III.  DISCUSSION

     8.  We note, as an initial matter, that based on a search of the FCC's licensing records and
database, there is no record of Wells filing for an Authorization of Assignment in February 1995.  Our
records do show, however, that the license for Station KZC283 was renewed on September 28, 1995, in the
name of W.A. Bushey and Son.  Accordingly, we conclude that Wells did not at any time have legal
authority to control and direct the operations of Station KZC283, because to date it has remained licensed
to Bushey.  

     9.  Moreover, with respect to the current status of Station KZC283's authorization, we note that
pursuant to Section 90.157 of the Rules, a license for a station shall cancel automatically upon permanent
discontinuance of operations, and any station that has not operated for one year or more is considered to
have been permanently discontinued.  Based on the record in this proceeding, we find that Station
KZC283 has not been in legal operation since its license was renewed on September 28, 1995.  In this
connection, the field investigation conducted with respect to this matter indicates that Station KZC283 has
not been transmitting for at least one year.  We conclude that Station KZC283 has been permanently
discontinued.  We further conclude that the license for Station KZC283 has cancelled automatically.  As a
result, the license cannot now be assigned to Wells; thus the pending assignment application is dismissed
as moot.


                         IV.  CONCLUSION

     10.  Accordingly, we grant the District's Petition and dismiss the pending application for
Authorization of Assignment, filed by Wells Communications, as moot.


                      V.  ORDERING CLAUSES  

     11.  Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the Communications Act of
1934, as amended, 47 U.S.C.  154(i), and Sections 1.934 and 1.939 of the Commission's Rules, 47
C.F.R.  1.934, 1.939, the Petition for Investigation of Interference and/or Unlicensed Operation and
Petition to Hold or Dismiss a Pending Application filed by Wells Communications Service, Inc., filed by
the Champlain Water District on June 16, 1998, is GRANTED to the extent stated herein.

     12.  IT IS FURTHER ORDERED that the Application for Assignment of Authorization, File No.
A013574, filed by Wells Communications Services, Inc., on February 3, 1998, IS DISMISSED.   

     13.  This action is taken under delegated authority pursuant to Section 0.131 and 0.331 of the
Commission's Rules, 47 C.F.R.  0.131, 0.331.


                              FEDERAL COMMUNICATIONS COMMISSION





                              D'wana R. Terry
                              Chief, Public Safety and Private Wireless Division
                              Wireless Telecommunications Bureau