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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 ) ) File No. 27882-CD-P/L-96 RAM Technologies, Inc. ) d/b/a/ RamPage ) ORDER Adopted: April 10, 1998 Released: April 10, 1998 By the Acting Chief, Commercial Wireless Division: I. INTRODUCTION 1. By this Order, the Commercial Wireless Division denies the Request for Clarification or Rule Waiver of RAM Technologies, Inc. d/b/a RamPage (RAM), and dismisses RAM's application for an additional channel in the 454.55 MHz frequency. II. BACKGROUND 2. On June 28, 1996, RAM filed an application to expand its service area to its existing paging license in the 454.55 MHz channel. In its public interest statement, RAM states that grant of its application would serve the public interest by allowing it to improve and expand its one-way paging services within its service area. RAM notes that, if granted, its application would be mutually exclusive with an existing application to expand the paging services of Drew Davis (Davis). In addition to its application, RAM also filed a Request for Clarification or Rule Waiver. 3. In February, 1996, the Commission suspended acceptance of all new applications for paging channels. Several months later, the Commission partially lifted this "freeze" to allow certain incumbent paging licensees to expand their existing paging systems. A Public Notice, issued on the day the "freeze" was partially lifted, stated that applications to expand paging channels in the 150 MHz and 450 MHz channels would be placed on public notice for thirty days before grant, and applications to expand paging channels in the 931 MHz channels would be placed on public notice for sixty days before grant. This Interim Procedures Notice also restarted the public notice period for the remaining amount of time until the required public notice period expired for any applications frozen by the Paging Notice. 4. Davis' application was placed on Public Notice January 31, 1996, frozen by the First Report and Order, and then re-opened by the Interim Procedures Notice. RAM had what was left of the thirty-day public notice period for Davis' application after the Interim Procedures Notice reopened the filing period on May 10, 1996 within which to file its competing application. However, RAM did not file its application until June 28, 1996, more than thirty days after the Interim Procedures Notice. RAM's application is therefore untimely filed. III. DISCUSSION 5. In its Waiver Request, RAM asserts that the Commission's procedures regarding the length of time within which an applicant may file a competing application are unclear. RAM notes that applications for 931 MHz channels are subject to a sixty-day public notice period, but applications for 150 MHz and 450 MHz channels are subject to a thirty-day public notice period. RAM requests clarification of the correct filing period for applicants requesting 450 MHz channels. In the event that Commission rules require an application to be filed within thirty days, RAM requests a waiver of the rule, as it did not file its competing application within thirty days. Davis opposes RAM's Waiver Request, arguing that the Commission's rules are clear and that RAM's application was untimely filed. 6. In the First Report and Order, the Commission stated that it would process applications for the lower-band common carrier frequencies, such as the 450 MHz frequencies, under the previously existing procedures of a thirty-day public notice period. The Commission also stated that it would process applications for 931 MHz frequencies under the previously existing procedures of a sixty-day public notice period. The Commission adopted these procedures in order to provide the statutory "cut-off" period for filing competing applications. Thus, RAM's assertion that the difference in the public notice periods is unexplained and arbitrary is incorrect. 7. RAM also argues that "the majority" of the Commission's weekly Public Notices state that all competing applications must be filed within sixty days. These weekly Public Notices are published to inform the public of major filings. However, the First Report and Order, the Interim Procedures Notice, and the Commission's rules all clearly reflect a thirty-day filing window. If RAM wished to file a petition for reconsideration or clarification of the actions establishing this thirty-day filing window, it needed to do so within thirty days of the release of the afore-mentioned Order and Public Notice. RAM did not do so. Instead, RAM is requesting reconsideration or clarification of the Commission's action taken in the First Report and Order and the policy established in the Interim Procedures Notice, which were both released in 1996. This request is untimely and the portion of RAM's Waiver Request which requests clarification of the filing deadlines is denied. 8. Finally, RAM requests a waiver of our rules, because it did not file its competing application within the thirty-day filing window as it was not sure it had to do so. The Commission may grant a waiver of a rule if it determines that the underlying purpose of the rule would not be served by application to the case in question, and a waiver would serve the public interest, or if in view of unique or unusual circumstances in the case in question, application of the rule would be contrary to the public interest or that the applicant has no reasonable alternative. Since the purpose of a thirty-day cut-off window is to ensure that all qualified applicants are considered and to allow for the prompt implementation of service to the public, RAM bears the burden of demonstrating why the thirty-day filing window should not be enforced in the instant matter. By waiving the thirty-day filing rule, we would delay implementation of service to Davis' subscribers. RAM has not presented any evidence that grant of its waiver request would be in the public interest, other than the fact that it desires to expand its existing paging system. This statement is insufficient justification. Moreover, RAM failed to present any evidence of unique or unusual circumstances. As indicated above, RAM had notice of the thirty-day filing window and could have foreseen the situation it now confronts by not filing within the prescribed filing window. RAM's dilemma was avoidable as evidenced by the fact that other applicants filed modification applications by the filing deadline. Simply put, RAM has provided no basis upon which it should be granted a waiver. Because RAM has not met its burden of demonstrating why the Commission should waive its rules, its Waiver Request is denied. IV. CONCLUSION & ORDERING CLAUSES 9. For the reasons discussed above, we find that RAM's application and request for clarification were untimely. Moreover, we conclude that RAM has not met its burden regarding its Waiver Request. We therefore dismiss RAM's application and deny its Waiver Request. 10. 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 section 22.128 of the Commission's Rules, 47 C.F.R.  22.128, the application filed June 28, 1996 by RAM Technologies, Inc. d/b/a RamPage IS DISMISSED. 11. 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 sections 1.106 and 22.119 of the Commission's rules, 47 C.F.R.  1.106, 22.119, the Request for Clarification or Rule Waiver filed June 28, 1996 by RAM Technologies, Inc. d/b/a RamPage IS DENIED. 12. This action is taken pursuant to delegated authority, section 0.331 of the Commission's Rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION Steven E. Weingarten Acting Chief, Commercial Wireless Division Wireless Telecommunications Bureau