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


In the Matter of 					)
	)
ATHENS DISPOSAL CO., INC.			)		FCC File Nos. 9708R242065,
						)		D031661, and D062390A
Station KNKJ336, Mt. Wilson and		)		
Sunset Peak (Los Angeles), California		)
						)
Petitions to Deny and Petition for		)
Reconsideration filed by James A. Kay, Jr.	)	

ORDER ON RECONSIDERATION


   Adopted:  December 16, 1999	Released:  December 17, 1999

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


	1.	James A. Kay, Jr. (Kay) requests reconsideration of the renewal of the license of Athens Disposal Co., Inc. (Athens) for Station KNKJ336, Mt. Wilson and Sunset Peak (Los Angeles), California.1  We grant Kay's petition for reconsideration for the reasons stated below.

	2.	Background.  On September 2, 1992, Athens was issued a radio authorization under Call Sign KNKJ336 to operate a private land mobile system in the Los Angeles area with twenty mobile units as part of its waste disposal business.  On November 25, 1996, Athens filed an application to modify its license to increase the number of authorized mobile units to seventy.2  Kay, the licensee of Conventional Specialized Mobile Radio (SMR) Station WNXB280, which is in close proximity both on a geographic and frequency-use basis to Station KNKJ336, protested Athens's application via a "Petition to Dismiss or Deny" filed on January 16, 1997.3  Kay argued4 that the Commission should deny Athens's application because Athens had discontinued operations, so the underlying license had cancelled automatically pursuant to Section 90.157 of the Commission's Rules. 5  On April 8, 1997, the Public Safety and Private Wireless Division, Licensing and Technical Analysis Branch (Branch) returned Athens's application and requested that Athens respond to Kay's allegations.6  The Branch did not receive a response from Athens.

	3.	In a separate application received on September 2, 1997, Athens sought to renew the license for Station KNKJ336.7  As part of its renewal application, Athens also applied to increase the number of mobile units authorized under such license to seventy.8  The Branch granted Athens's renewal application with the requested modifications on September 3, 1997.  On October 2, 1997, Kay filed the subject petition for reconsideration of the grant.

	4.	Discussion.  At the heart of Kay's petitions is the allegation that Athens's license cancelled automatically pursuant to Section 90.157 of the Commission's Rules,9 and therefore there was no underlying license to renew or modify.10  Under the Rules, the license for a station cancels automatically upon permanent discontinuance of operations.11  For purposes of this rule, a station that has failed to operate for one year or more has been "permanently discontinued."12  Kay provides evidence that Station KNKJ336 was not in operation for more than one year and, therefore, falls into the class of stations that are automatically cancelled.  Specifically, Kay describes Athens's sale of its Mount Wilson facility to Kay in January 1995, and provides a 1993 work order for the removal of equipment on the Sunset Peak facility.  Significantly, we received no response from Athens refuting Kay's allegations that the subject facilities had been discontinued.13

	5.	Based on Kay's prima facia evidence and Athens's failure to respond to both Kay's allegations and our request for specific information about Station KNKJ336, we conclude that Athens's license has cancelled automatically pursuant to Section 90.157 of the Commission's Rules due to discontinuance of operations for one year or more.14  Because we have determined that Athens's license has cancelled, we need not rescind the previously granted modifications nor return applications to pending status, as Kay requests. 15  Instead, we will dismiss as moot, on our own motion, both Athens's pending modification applications and Kay's Petition to Deny.  We also dismiss Kay's petition insofar as it asks the Commission to determine whether Athens or any related companies have filed applications or hold authorizations for other radio licenses and to initiate proceedings to determine whether Athens continues to have the qualifications necessary to hold a radio authorization.16  We conclude that such a determination is appropriate at the time such applications and authorizations - if there are any - are directly before us for consideration.17

	6.	Accordingly, 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 Sections 1.106 (b)(2) of the Commission's Rules, 47 C.F.R. §§ 1.106 (b)(2), the petition of James A. Kay, Jr. for reconsideration of the grant of FCC File Number 9708R242065 IS GRANTED to the extent stated herein.

	7.	IT IS FURTHER ORDERED that the Commission's licensing records ARE MODIFIED to reflect the cancellation of Station KNKJ336, formerly held by Athens Disposal Co., Inc.

	8.	IT IS FURTHER ORDERED that the application of Athens Disposal Co., Inc., to renew Station KNKJ336, and assigned FCC File Number 9708R242065 IS RETURNED to pending status and IS DENIED because Athens no longer holds an authorization to operate Station KNKJ336.

	9.	IT IS FURTHER ORDERED that applications of Athens Disposal Co., Inc., assigned file numbers D031661 and D062390A ARE DISMISSED as moot.

	10.	IT IS FURTHER ORDERED that the Petition to Deny or Dismiss filed by James A. Kay, Jr. IS DISMISSED as moot.

	11.	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
1James A. Kay, Jr., Petition for Reconsideration (filed October 2, 1997) (Kay Reconsideration Petition).

2This application was assigned File Number D062390A.  Earlier, on April 18, 1996, Athens filed an application, File Number D031661, to modify its license to increase the number of authorized mobile units to seventy and to relocate one of its base stations from Mt. Wilson to Mt. Lukens.  The application was returned to Athens on June 17, 1996, because, inter alia, Athens failed to indicate that the proposed antenna structure had been studied by the Federal Aviation Administration and registered with the FCC pursuant to Part 17 of our Rules, and the application had not been submitted through a frequency coordinator.
 
3James A. Kay, Jr., Petition to Dismiss or Deny (filed January 16, 1997) (Kay Dismissal Petition).  Because the Commission's Rules do not provide for the filing of petitions to deny in the Private Wireless Services, we will treat Kay's filing as an informal objection under Section 1.41 of the Rules, 47 C.F.R. § 1.41.  See, e.g., In re Michael McDermott d/b/a McDermott Communications Co., 11 FCC Rcd 5750, 5752 ¶ 7 (1996).
 
4Kay Dismissal Petition at 2.
 
547 C.F.R. § 90.157. 

6The Branch also asked Athens to supply certain antenna site data that it had failed to provide on its application. 
 
7The renewal application was assigned File Number 9708R242065.

8Athens also sought to correct the name and mailing address of record.

947 C.F.R. § 90.157.

10Kay Reconsideration Petition at 2; Kay Dismissal Petition at 2.

1147 C.F.R. § 90.157(a).

1247 C.F.R. § 90.157(b).

13See supra note 2 and accompanying text.  In its April 8, 1997, return letter, the Branch noted that the Certificate of Service indicated that Athens had been served a copy of Kay's petition, and required Athens to submit the following information:  A copy of any invoices for equipment purchased to construction Station KNJN336; any model numbers and a full description of equipment used to construct the station; a signed statement from the persons who installed the station; a copy of the site lease; and certification that the station has never discontinued service at the licensed location for one year or more.  Letter from Licensing and Technical Analysis Branch to Richard Nino, Athens Disposal Co., Inc., (April 8, 1997).  Kay states that he has not been served with a response from Athens.  Kay Reconsideration Petition at 1.  Furthermore, the Branch has no filings from Athens in response to the instant Petition for Reconsideration.

14See Jersey Central Power and Light, Order, DA 99-1759 (WTB rel. Sept. 1, 1999).

15Kay Petition for Reconsideration at 2.

16Id. at 3-4.

17We note that Kay does not provide file numbers or call signs for specific applications or authorizations filed or held by Athens or related entities, if there are any.  See Kay Reconsideration Petition.
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	Federal Communications Commission	DA 99-2823







	Federal Communications Commission	DA 99-2823