******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 ) ) ROBERT O. BENZ ) File No. 28139-CD-P/ML-90 ) ) Authority to Construct a 931.6625 MHz ) Commercial Mobile Radio Service facility) under Call Sign KNLM474 ) ORDER Adopted: February 17, 1998 Released: February 17, 1998 By the Chief, Commercial Wireless Division: I. INTRODUCTION 1. In this Order, we rescind Robert O. Benz's (Benz) authorization to construct commercial mobile radio service facilities on frequency 931.6625 MHz, under Call Sign KNLM474 at San Miguel Mountain, San Diego, California. In addition, we determine that there are no available frequencies that can be assigned to Benz. Finally, we grant Kwik-Page Communications, Inc.'s (Kwik) "Motion for Correction of Records." II. BACKGROUND 2. On March 23, 1989, Kwik was granted authority to operate two paging stations on frequency 931.6625 MHz at Mt. Woodson and San Miguel Mountain, San Diego, California. Kwik's construction permits were to expire on March 22, 1990. Although Kwik requested an extension of time to construct its facilities, Kwik subsequently submitted the notifications of construction for the two facilities using the original FCC file numbers on March 22, 1990, the last day for filing notifications of construction under the originally granted construction permits. Thereafter, the Narrowband Branch granted Kwik's request for extension of time and assigned new file numbers for the paging stations on April 3, 1990. 3. Because the Commission's database indicated that Kwik was authorized to operate its facilities under the FCC file numbers that extended the time to construct, our records did not accurately reflect that Kwik had timely filed its notifications of construction under the original permits. On August 26, 1993, the Commission issued a public notice announcing the proposed termination of Kwik's authorization. The Commission stated that it would send notification of termination to the holders of authorizations, accept petitions for reconsideration within thirty days, and subsequently issue a public notice listing the terminated authorizations. On October 15, 1993, another public notice was issued listing certain terminated authorizations. Kwik's authorizations did not appear in the October 15, 1993 public notice as terminated, nor on any subsequent public notices terminating the authorizations. However, on January 31, 1996, the Commission granted Benz a permit to construct facilities on frequency 931.6625 MHz at San Miguel Mountain, the same frequency that earlier had been granted to Kwik. 4. On December 27, 1996, Kwik filed a Motion for Correction of Records requesting that the Commission set aside Benz' authorization and protect Kwik's long standing authorization to operate on frequency 931.6625 MHz. On January 14, 1997, in response to a Commission request for documents, Kwik provided additional information to the Commission which established that Kwik was authorized to operate two paging facilities on frequency 931.6625 MHz. Kwik requested that the Commission set aside Benz' authorization and add Kwik's inadvertently deleted authorizations to its records. Finally, in a letter dated November 21, 1997, Benz withdrew his opposition to Kwik's motion for correction of records and requested that the Commission examine whether there are any available frequencies that could be assigned to his station. III. DISCUSSION 5. First, we address Kwik's Motion for Correction of Records. Courts have long recognized the authority of administrative agencies to correct ministerial, inadvertent errors. A ministerial error is defined as an error involving arithmetic functions, clerical errors and any other type of unintentional error. Although we never deleted Kwik's authorizations, our records did not accurately reflect that Kwik was granted authorizations under FCC File Numbers 21148-CD-P/L-01- 89 and 21140-CD-P/L-01-89. We, therefore, correct our records to reflect that Kwik-Page, Inc. has been authorized to operate its paging stations under frequency 931.6625 MHz since March 23, 1989. 6. Next, we address the issue of whether Benz' January 31, 1996 authorization to operate on frequency 931.6625 MHz was properly granted by the Narrowband Branch. We agree with Benz that his authorization for frequency 931.6625 MHz at San Miguel Mountain is invalid. Section 22.537(a) of the Commission's rules states that the Commission may grant an application requesting assignment of a channel to a proposed base transmitter only if: (1) the interfering contour of the proposed transmitter does not overlap the service contour of any protected co-channel transmitter controlled by a carrier other than the applicant. . ., and (2) the service contour of the proposed transmitter does not overlap the interfering contour of any protected co-channel transmitter controlled by a carrier other than the applicant. . . . Since Kwik had already been authorized to operate its two paging stations on frequency 931.6625 MHz, we could not authorize Benz to operate on the same frequency without violating section 22.537. We find, therefore, that Benz' authorization for frequency 931.6625 MHz at San Miguel Mountain was granted in error. 7. Finally, we address the issue of whether there are any available frequencies which could be assigned to Benz. In response to Benz' request, the Licensing and Technical Analysis Branch determined that there were no frequencies available which could be assigned to Benz . Accordingly, we dismiss Benz' application. IV. ORDERING CLAUSE 8. Accordingly, IT IS ORDERED, that, pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and authority delegated by section 0.331 of the Commission's rules, 47 C.F.R.  0.331, the authorization granted to Robert O. Benz on January 31, 1996, IS RESCINDED. 9. IT IS FURTHER ORDERED, that, pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), Kwik-Page, Inc.'s Motion for Correction of Records IS GRANTED. The Commission's records shall reflect that Kwik-Page, Inc. is authorized to operate two commercial mobile radio service paging stations at San Miguel Mountain and Mt. Woodson on frequency 931.6625 MHz pursuant to FCC File Numbers 21148-CD-P/L-01-89 and 21140-CD-P/L- 01-89. 10. IT IS FURTHER ORDERED, that pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and section 22.128(e) of the Commission's rules, 47 C.F.R.  22.128(e), Robert O Benz' application which was filed on November 21, 1997 IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION David L. Furth Chief, Commercial Wireless Division Wireless Telecommunications Bureau