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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 ) ) NEXTEL COMMUNICATIONS, INC. ) File No. CWD-27-24 ) Applications for 800 MHz Specialized ) Mobile Radio - Trunked Systems at ) Various Locations ) ORDER Adopted: January 6, 1998 Released: January 6, 1998 By the Chief, Wireless Telecommunication Bureau: I. INTRODUCTION 1. On June 25, 1996, Dennis C. Brown and Robert H. Schwaninger, Jr. (Brown) filed a Petition for Special Relief (Petition) on behalf of certain of their clients who operate Specialized Mobile Radio (SMR) systems. Based on an alleged random sampling of SMR applications filed by Nextel Communications, Inc. (Nextel), its subsidiaries and affiliates during the period from November 8, 1993, to August 10, 1994, Brown contends that a significant percentage of the applications were defective and should not have been granted by the Wireless Telecommunications Bureau (Bureau). We conclude that Brown's petition is untimely and that it has failed to present facts that would justify the extraordinary relief it seeks. Therefore, we dismiss the Petition. II. BACKGROUND 2. In the CMRS Third Report and Order, adopted August 9, 1994, the Commission imposed a freeze on acceptance of new site-by-site applications for 800 MHz SMR channels pending adoption of new service and auction rules. At the time the freeze was imposed, a backlog of approximately 40,000 SMR applications that had been filed over the previous two years was pending at the Commission. This backlog included numerous applications by Nextel as well as applications by others. To eliminate the backlog, trade associations representing the SMR industry presented the Bureau with a computer program, pursuant to Section 4(g)(3) of the Communications Act, that would process the applications under existing site-by-site licensing rules. The Bureau initially announced license grants based on this program on public notice released March 17, 1995. However, after numerous applicants sought reconsideration of the results based on apparent errors in the program, the Bureau vacated the March 17 grants, assisted the trade associations in making changes to the program, and conducted a second computer run. On October 31, 1995, the Bureau granted approximately 3,500 SMR applications based on the results of its automated processing. 3. In the Petition, Brown alleges that it reviewed forty-two Nextel applications at random that were filed between November 8, 1993, and August 10, 1994, which were among the applications granted on October 31, 1995. Brown contends that it found various defects in twenty-five of these applications, e.g., that engineering information and evidence of frequency coordination had not been filed, that necessary waiver requests had not been filed and waiver fees had not been paid, or that the applications did not conform to interference criteria in effect at the time that the applications were processed. Based on these allegations, Brown contends that the Bureau committed ministerial error in granting the applications, and that the licenses in question should be revoked. Brown also requests that the Bureau review all granted applications filed by Nextel prior to August 10, 1994 to determine whether the grant of the applications was in compliance with the Commission rules. The Petition further requests that the Bureau determine whether Nextel systematically filed applications in bad faith. 4. Nextel filed a Motion to Dismiss the petition on July 25, 1996. Nextel asserted that the petition was an untimely filed petition for reconsideration. III. DISCUSSION 5. Although styled as a Petition for Special Relief, the Petition is in substance a petition for reconsideration of license grants made to Nextel in the October 31 Public Notice. Under Section 405 of the Communications Act of 1934, as amended, and Section 1.106(b) of the Commission's rules, a petition for reconsideration must be filed within thirty days of the date upon which public notice is given of the action complained of. Thus, petitions challenging the results of the October 31 Public Notice were due no later than November 30, 1995. Because the instant petition was filed on June 25, 1996, approximately seven months after this deadline, it is untimely on its face. 6. The Commission may not consider a late-filed petition unless the petitioner demonstrates the existence of extraordinary circumstances justifying the late filing. In this case, Brown has failed to offer any justification for its late filing of the petition. Brown does not contend that the Commission failed to provide public notice of its action, or that facts exist that could not have been known to Brown within the thirty-day reconsideration period. Indeed, the applications that Brown challenges were on file and available for public inspection for more than a year before they were granted and the Commission gave proper notice of its licensing actions in the October 31 Public Notice. Thus, Brown had ample opportunity to review these applications for alleged defects while they were pending. Moreover, we note that numerous other parties filed timely petitions for reconsideration of the Bureau's licensing decisions after both the March 17 Public Notice and the October 31 Public Notice. In light of these facts, we conclude that Brown has failed to justify the lateness of its filing, and dismiss the Petition as untimely. 7. Because the Petition is fatally untimely, it is unnecessary for us to address Brown's substantive allegations relating to Nextel's applications. Nonetheless, we observe that the Petition provides no factual basis that would justify the relief that Brown seeks. Brown alleges that its "random" sample of Nextel applications reveals a high percentage that were improperly granted due to ministerial error. However, the allegations in the Petition are themselves replete with factual errors or are based on incorrect or incomplete information. For example, in several instances where Brown contends that applications lacked engineering and frequency coordination information, the information was in fact provided. Similarly, in instances cited by Brown of applications lacking necessary waiver requests or fees, we have determined that waivers were either not necessary or were properly requested. 8. We also reject Brown's suggestion that based on the meager anecdotal information contained in its Petition, we should review every application filed by Nextel prior to the freeze and reexamine it for compliance with our rules. As noted above, Brown had ample opportunity to scrutinize these applications at the time they were filed, or to challenge the resulting license grants through the reconsideration process. However, Brown did not seek reconsideration of a single license grant. Moreover, in light of the fact that all of Nextel's applications, along with thousands of others, were processed by means of a computer software program that applied the identical analysis to each application, the Petition fails to raise an issue that Nextel's applications were treated differently or more favorably than those of any other applicant. Finally, the vast majority of Nextel's applications filed during the 1993-1994 period were to establish low-power digital sites within wide-area geographic footprints that Nextel had previously established pursuant to the Commission's Fleet Call order or other grants of extended implementation authority. In the 800 MHz SMR First Report and Order, the Commission required recipients of extended implementation authority to "rejustify" such grants in order to retain extended buildout rights. Nextel complied with these requirements and was found by the Bureau to have successfully rejustified its authorizations. In light of these facts, we see no reason to grant Brown's sweeping and untimely request to review applications granted more than two years ago. IV. CONCLUSION 9. We dismiss Brown's Petition for Special Relief because it is an untimely filed petition for reconsideration. Brown has not presented any extraordinary circumstances which warrant consideration of the Petition. V. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154 (i) and 405, and Section 1.106 of the Commission's Rules, 47 C.F.R. 1.106, the Petition for Special Relief filed by Dennis C. Brown and Robert H. Schwaninger, Jr., on June 26, 1996, IS DISMISSED. 11. This action is taken pursuant to authority delegated in Section 0.331 of the Commission's Rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION Daniel B. Phythyon Chief Wireless Telecommunications Bureau