Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) TONKIN PLUMBING ) ) For Reinstatement of the License for ) Business Radio Service-Conventional ) Station WNXG709, Corona, California ) ) and ) ) NATIONAL CHARTER ) File No. D067815 ) For Reinstatement of Application to Assign ) Business Radio Service-Conventional ) Station WNXG709, Corona California) ORDER Adopted: October 14, 1999 Released: October 19, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On August 18, 1998, Tonkin Plumbing (Tonkin) filed a Petition for Reconsideration of the decision by the Licensing and Technical Analysis Branch (Branch) to cancel Tonkin's license to operate a 900 MHz Business Radio Service-Conventional Station (Call Sign WNXG709) in Corona, California. For the reasons discussed below, we grant Tonkin's Petition. Consequently, Tonkin's license for Station WNXG709 and an associated assignment application filed by National Charter will be reinstated. II. BACKGROUND 2. On December 30, 1995, Tonkin filed an application for consent to assign Station WNXG709 to National Charter. On March 27, 1997, prior to the Commission's approval of the assignment to National Charter, Riverside Communications (Riverside) filed a finder's preference request targeting Station WNXG709. Riverside alleged that Tonkin had violated Section 90.157 of the Commission's Rules, by discontinuing operation on Station WNXG709 for a period in excess of one year. Riverside had previously provided Tonkin's repeater service, and offered, as evidence of Tonkin's discontinuance, correspondence from Tonkin terminating its service agreement with Riverside on January 1, 1994. 3. On June 9, 1998, following the receipt of Riverside's finder's request, the Branch requested information from Tonkin in connection with Tonkin's assignment to National Charter. The Branch sought confirmation that Tonkin was indeed still in operation and, to that end, requested information regarding Tonkin's current repeater service. When Tonkin failed to respond, the Branch concluded that the station was not in operation and, on August 5, 1998, cancelled Tonkin's license and dismissed National Charter's assignment application as defective. On August 18, 1998, Tonkin filed the Petition regarding the Branch's decision to cancel its license. III. DISCUSSION 4. Tonkin argues that the Branch's June 9, 1998 information request did not contain a reply date, and further, that Tonkin failed to reply sooner due to a "miscommunication" between Tonkin and Wavelink, its service provider, as to which party would be responsible for responding to the Branch's information request. In its Petition, Tonkin also provides responses to the Branch's inquiry regarding its operational status. 5. Section 1.106(c) of the Commission's Rules provides that a petition for reconsideration of a staff action which relies on facts not previously presented will be granted only if the facts: (1) relate to new events or changed circumstances; or (2) were unknown to the petitioner and could not have been learned through ordinary diligence; or (3) are determined by the Commission as required in the public interest. Since the Branch did not have the opportunity to weigh any of the information provided by Tonkin in its Petition prior to its cancellation of Tonkin's license, we find that the public interest requires consideration of the evidence of operational status submitted in that pleading. 6. Tonkin maintains that, following, the termination of its service agreement with Riverside, it agreed to utilize repeater service provided by Wavelink. In support of this assertion, Tonkin provided the statement of Ted Wayman. Mr. Wayman certified that Station WNXG709 was constructed at the authorized coordinates (33-42-40N, 117-31-54W) and placed in operation in October, 1994. Mr. Wayman further affirms that "the station has remained continuously operational to date." Additionally, Tonkin attached invoices from Wavelink demonstrating that service was provided by Wavelink beginning in October, 1994. Therefore, based on this information, we conclude that Station WNXG709 was operational during this period. Moreover, as we have taken the facts presented by Tonkin regarding its operational status into consideration, we find it unnecessary to address Tonkin's argument concerning the Branch's failure to include a reply date on its information request. Accordingly, we grant Tonkin's Petition and reinstate its license for Station WNXG709. In addition, we reinstate the related assignment application filed by National Charter. IV. ORDERING CLAUSES 7. IT IS ORDERED, pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 405 and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, that the Petition for Reconsideration filed by Tonkin Plumbing is GRANTED. 8. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 405 and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, that Tonkin Plumbing's license for Station WNXG709 will be REINSTATED. 9. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 405 and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, that National Charter's application for assignment, FCC File No. D067815 will be REINSTATED AND ACCEPTED FOR FILING. 10. This action is taken under delegated authority pursuant to Sections 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