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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 re Applications of ) ) CLEAR PAGING, INC. ) File Nos. 2395195, 2396995, ) 2397095, 2397295, 2412495, For Additional Facilities for Paging ) 2421195, 2422795, 2420995, Service on the 931.6125 Mhz Frequency ) 2427395, 2430495, 2457195, ) 2467095, 3248596, 3248996, ) 3252396, 3259096, 3259196, ) 3259296, 3259596, 3265896, ) 3266496, 3267096, 3535495, ) 3541295, 3544995, 3545495, ) 3556295, 3556895, 3254996, ) 3266796, and 326696 ORDER Adopted: November 18, 1999 Released: November 18, 1999 By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. On January 13, 1999, Clear Paging, Inc. (Clear Paging) filed a petition for reconsideration (Petition) of the December 14, 1998 Order, which dismissed the thirty-one above-captioned expansion applications filed by Clear Paging on the 931.6125 MHz frequency. In the December 14, 1998 Order, twenty-eight of Clear Paging's applications were dismissed as pending, mutually exclusive applications in the 931-932 MHz band, and three applications were dismissed pursuant to section 22.128(e)(2) of the Commission's rules, 47 C.F.R.  22.128(e)(2), as pending applications requesting spectrum previously assigned to another licensee on an exclusive basis. Clear Paging seeks reconsideration of the December 14, 1998 Order on the grounds that (1) dismissal of the Clear Paging applications listed in Attachment A of the December 14, 1998 Order as mutually exclusive is contrary to law; and (2) dismissal of the Clear Paging applications listed in Attachment C of the December 14, 1998 Order is incorrect because Clear Paging did not request spectrum assigned to another licensee on an exclusive basis. For the reasons discussed below, we deny the Petition. 2. As discussed above, twenty-eight of Clear Paging's applications for the 931.6125 MHz frequency were dismissed because they were pending mutually exclusive applications. Clear Paging argues in its Petition that (1) dismissal is contrary to law, because it evidences the retroactive application of the new licensing rules made effective in the Paging Second Report and Order, and (2) dismissal is unfair to all applicants that relied on the Commission's rules when filing their applications. Clear Paging's arguments against dismissal of its pending applications generally reiterate the same arguments against dismissal that were set forth in the petitions for reconsideration filed in response to the Paging Second Report and Order and denied in the Paging Third Report and Order. We, therefore, deny Clear Paging's petition for reconsideration of the dismissal of the twenty-eight applications listed in Attachment A of the December 14, 1998 Order on those same grounds. 3. Clear Paging also alleges that three of its applications (File Nos. 3254996 (Jeffersonville, GA), 3266796 (Hamage, MS) and 326696 (Royce, MS)), were incorrectly dismissed pursuant to section 22.128(e)(2) of the Commission's rules. Section 22.128(e)(2) provides that the Commission may dismiss applications that request spectrum which is unavailable because it was previously assigned to another licensee on an exclusive basis or cannot be assigned to the applicant without causing interference. Clear Paging states in its Petition that a comprehensive review of the Commission's database and other available information failed to demonstrate that Clear Paging's applications would cause interference with other service providers. 4. We agree with Clear Paging that File Nos. 3254996, 3266796, and 326696 should not have been dismissed in the December 14, 1998 Order pursuant to Section 22.128(e)(2) of the Commission's rules. Nonetheless, our records reveal that the three applications were defective and should have been dismissed for failure to satisfy the exception to the "paging freeze." The Paging First Report and Order allowed incumbent paging licensees such as Clear Paging to submit applications for additional stations which were located within 65 km (40 miles) of authorized and operational co-channel facilities licensed to the applicant. Our records indicate that all three applications listed Clear Paging's existing transmitter site at Wrightsville, VA (File No. 2427795) as the co-channel facility located within 40 miles from the proposed sites. However, our records also indicate that the license for the Wrightsville transmitter site was terminated on March 17, 1996. Because the Wrightsville station was not "authorized and operational" at the time that Clear Paging filed the three applications, i.e., July 31, 1996, the applications were defective. We therefore affirm our decision to dismiss these applications for the reasons stated herein. 4. 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 Clear Paging, Inc. on January 13, 1999, IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William W. Kunze Deputy Chief Commercial Wireless Division Wireless Telecommunications Bureau