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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 the Matter of Application of ) ) WASTE MANAGEMENT, ) COLLECTION & RECYCLING, INC. ) ) For an Industrial/Land Transportation Category) Station at El Toro, California ) MEMORANDUM OPINION AND ORDER Adopted: June 9, 1999 Released: June 21, 1999 By the Commission: I. INTRODUCTION 1. On July 21, 1995, Waste Management, Collection & Recycling, Inc. (Waste Management), filed an Application for Review of a decision by the Land Mobile Branch (Branch), Office of Operations--Gettysburg, Wireless Telecommunications Bureau. The Branch denied reconsideration of its decision setting aside grant of a license to Waste Management for an Industrial/Land Transportation (I/LT) Category station on 897.000/936.000 MHz at El Toro, California, and then dismissing the application as defective. For the reasons discussed below, we affirm the Branch's action and deny Waste Management's Application for Review. II. BACKGROUND 2. On December 6, 1988, Sunnyedge Disposal, Inc., which subsequently merged with Waste Management, was granted a five-year license to operate an I/LT station at Santiago Peak, California, on Channel 80 (frequency pair 897.000/936.000 MHz). On October 2, 1992, LMR Systems, Inc. (LMR), filed an application and waiver request to use the same channel for a low-power Specialized Mobile Radio (SMR) Service system with a service radius of 4.7 miles from Los Angeles International Airport (LAX), which is 53.1 miles northwest of Santiago Peak. Waste Management failed to renew its license; thus, the authorization expired on December 6, 1993. 3. On January 5, 1994, Darryll Huth (Huth), a Business Radio Service eligible, submitted to the certified frequency coordinator for the Business Radio Service, the National Association of Business and Educational Radio, Inc. (NABER), a request to coordinate his use of Channel 80 from a base station in Montrose, California, 55.7 miles north of Santiago Peak and approximately 20 miles northeast of LAX. NABER forwarded the request to the certified frequency coordinator for the I/LT Radio Services, the Industrial Telecommunications Association, Inc. (ITA). On March 1, 1994, Waste Management's license for its operations on Channel 80 was deleted from the Commission's database. However, on March 14, 1994, ITA informed NABER that, because the expired Waste Management license was still on the Commission's database, it could not coordinate Huth's request. 4. On April 29, 1994, Waste Management obtained a grant of Special Temporary Authorization (STA) to continue transmitting on Channel 80 from the same location as that previously authorized under the expired license. On May 4, 1994, it applied for a new license to operate on that channel from that location. ITA stated in an attachment to the application that the request could not be coordinated because it conflicted with the LMR application. Huth opposed Waste Management's license application, primarily arguing that Waste Management's coordination was defective because ITA should have coordinated his request for that channel. In response to the Huth Petition, ITA defended its treatment of Huth's request, and stated that it would have coordinated Waste Management's request but for the LMR application. Additionally, ITA requested that Waste Management's application be granted (but with no explanation of how this grant could be made while the LMR application was pending). The Branch denied the Huth Petition, on the grounds that ITA properly denied Huth's request because, while Waste Management's license was expired, it nonetheless was on the Commission's database when ITA received the request. It further noted that Huth was not prejudiced because LMR had applied for that channel before him. 5. Waste Management's license application was granted on December 2, 1994. On May 19, 1995, however, the Branch set aside the grant as void on the grounds that the application lacked frequency coordination. Consequently, the Branch returned the application to pending status, and dismissed it as defective. The Branch also stated that the license grant violated Section 90.611 of the Commission's Rules, which requires that applications be processed in order of receipt. Waste Management filed a Petition for Reconsideration on June 19, 1995, suggesting that its application was properly coordinated. The Branch denied the Petition on June 21, 1995. Waste Management continues to operate the Santiago Peak station under an STA which was first granted in 1994, and subsequently extended. 6. On July 21, 1995, Waste Management filed an Application for Review of the Reconsideration Denial alleging administrative error both procedurally and substantively. As a result, Waste Management requests that the Commission reinstate Waste Management's license; or at least reinstate Waste Management to its place in the processing line behind LMR, either by restoring Waste Management's application to pending status until the LMR application is resolved, or by returning the application to Waste Management for correction and resubmittal. III. DECISION 7. Based on our review of the record in this proceeding, we find no justification for reversing the Branch's decision setting aside Waste Management's license and subsequently dismissing its application. Waste Management offers three arguments for reversing the decision. First, Waste Management argues that it was entitled to notice and a hearing before its license was revoked. Second, it contends that because the Commission's Rules require only a coordinator's recommendation, not its certification, ITA's response to the Huth Petition constituted sufficient coordination of Waste Management's application. Third, Waste Management maintains that the Branch's decision was not in the public interest. 8. Waste Management's first argument is that Section 312(c) of the Communications Act of 1934, as amended, entitled it to thirty days notice and an opportunity to respond before the Branch rescinded its license. Because this argument was not made earlier in this proceeding and Waste Management has not set forth any arguments as to why it could not have been made, we find that it is procedurally improper for Waste Management to raise it for the first time in the Application for Review. 9. Waste Management's second contention is that ITA's response to the Huth Petition constituted sufficient frequency coordination. The coordination requirement is set out in Section 90.175(e) of the Commission's Rules, which provides that "applications" for the frequencies in question "must include . . . [a] statement from the applicable coordinator recommending specific frequencies that are available for assignment in accordance with the loading standards and mileage separations applicable to the specific radio service or category of user involved." Waste Management argues that this section requires only that the coordinator recommend a frequency, as opposed to certifying the coordination. It further contends that ITA's statement in its response to the Huth Petition that it would have coordinated the Waste Management request but for the pending LMR application, and its request that the Waste Management application be granted, was such a recommendation. 10. We disagree with Waste Management's contention that ITA's statement satisfies the coordination requirement, either procedurally or substantively. The rule expressly requires that evidence of coordination be included in the application. Thus, we cannot accept ITA's comment as an amendment to Waste Management's application because it was not "signed and submitted in the same manner as required for the original application," and thus was not an amendment thereto. In addition, Section 90.175 of the Commission's Rules requires more than a suggestion from the coordinator; it requires a decision "identify[ing] the most suitable frequency," which the Commission, if it approves, can adopt intact. We believe that a coordinator's identification of frequencies regarding which the application conflicts with a prior application is insufficient. Further, even if ITA's request that Waste Management's application be granted were deemed to be a proper recommendation, it could not have been accepted by the Commission, because the LMR application was filed first and thus had to be processed first. 11. Waste Management requests that, in the event its frequency coordination is deemed insufficient, its application be restored to pending status, or returned to it for correction and resubmittal within thirty days pursuant to Section 90.611(f) of the Commission's Rules, so that Waste Management may keep its place in the processing line behind LMR. Because this relief was not requested earlier, we believe it to be procedurally inappropriate in the context of an Application for Review. Moreover, an application that lacks the required coordination is incomplete, and cannot be placed in pending status. Finally, applicants are not permitted to queue behind already-pending mutually exclusive applications. 12. Waste Management's third argument is that rescinding its license is not in the public interest. We note Waste Management's representation that it provides trash collection services for many Southern California communities. We further note its statement that radio communications are essential to the efficient and timely collection of refuse, and that no replacement spectrum is available. In effect, Waste Management seeks to be excused from its failure to renew its original license, based on the benefit its use of that spectrum will confer on the public. We have rejected similar arguments in the past, and we do so now. While there is a benefit for the general public interest in facilitation of trash collection, Waste Management has not demonstrated that the public interest would be harmed if it did not receive an authorization for this particular spectrum or that no one else could perform these functions if Waste Management cannot. Moreover, Waste Management has not established that it cannot procure alternate communications services. Waste Management allowed its license to expire and failed to act within the additional thirty days after expiration during which a licensee could have applied for reinstatement without having to seek new a license under the rules then in effect. We decline to waive the rules or provide other relief that would, in effect, extend this period. Further, Waste Management has not met its burden of establishing that there is a greater public interest in maintaining its business arrangements than there is in maintaining the fairness of the application process and treating applicants equally. Thus, we conclude that Waste Management has failed to demonstrate sufficiently that affirming the Branch's set-aside action would be contrary to the public interest. IV. CONCLUSION 13. We affirm the Branch's action setting aside grant of Waste Management's license. Waste Management's contention that it was entitled to notice and an opportunity to comment beforehand is untimely. The Branch correctly determined that Waste Management's license application lacked the required frequency coordination, because a coordinator may not recommend a frequency that conflicts with a prior application. Finally, Waste Management has not shown that the public interest requires reinstatement of its license. V. ORDERING CLAUSE 14. Accordingly, IT IS ORDERED that, pursuant to the authority of Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and Section 1.115 of the Commission's Rules, 47 C.F.R.  1.115, the Application for Review filed by Waste Management, Collection & Recycling, Inc., on July 21, 1995 IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary