Federal Communications Commission DA 00-786

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

In the Matter of the Application of ) ) CITY OF COMPTON POLICE DEPARTMENT ) FCC File No. 7110553 ) for Special Temporary Authority to Operate ) Station WGJ636, Compton, California )

ORDER ON RECONSIDERATION

Adopted: April 6, 2000 Released: April 7, 2000

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

I. INTRODUCTION

1. James A. Kay, Jr. (“Kay”) seeks reconsideration of the grant to the City of Compton, California Police Department (“Compton”) of special temporary authority to operate Station WGJ636, Compton, California. For the reasons set forth herein, we dismiss Kay’s petition for lack of standing.

II. BACKGROUND

2. In June 1997, Hi-Desert Communications (“Hi-Desert”), Compton’s radio vendor which was also acting as its agent, approached Kay, who is authorized to operate on several private land mobile radio channels, regarding his providing Compton with exclusive access to a UHF mobile communications channel.1 Kay stated that the price would be $1,500 per month.2 Sometime thereafter, Hi-Desert told Kay that Compton would require two channels and Kay stated that he could provide them. 3 Kay then cleared two channels in the 470 MHz band for Compton’s use in anticipation of an April 1, 1999 start date. 4 Prior to the start date, the parties became aware that there was a misunderstanding as to the cost of leasing the channels. Kay understood that he was charging $1,500 per channel per month, which equaled $3,000 per month for the two channels, while Compton thought that the total cost was $1,500 per month for both channels.5 Compton had budgeted only $18,000 for the first year (equating to a payment of $1,500 per month for twelve months).6 Until this time, Kay and Compton had not spoken to each other directly; rather, all communications were through Hi-Desert.7

1 Kay Petition for Reconsideration (filed May 26, 1999) at 1.

3 Id. at 1-2.

4 Id. at 2. Kay states that he incurred between $15,000 and $20,000 in expenses to clear the channels. Id.

6 Id. Federal Communications Commission DA 00-786

3. In April 1998, Kay and Compton met. Kay offered to “donate” one channel to Compton for the first year; after that, however, he said that the fee of $1,500 per month per channel would apply. 8 Compton, however, did not agree to enter into such a contract with Kay. 9 Nonetheless, Kay decided to continue providing Compton with exclusive access to both channels at $1,500 per month for the first year.10 Kay states that he made it clear that he would not extend this price past the first year, i.e., past March 31, 1999.11

4. Sometime in early 1999, Kay advised Compton that Compton would have to sign a contract and pay full price (i.e., $3,000 per month) if it wished to continue to use the channels.12 Compton stated that it had obtained an appropriation for only $18,000 for the next year.13 Kay then offered to allow Compton to lease the two channels for six months, which would provide Compton time to make other arrangements.14 On March 24, 1999, Kay’s attorney sent Compton a letter reiterating Kay’s position: that the verbal agreement regarding the leasing of the two UHF channels on which Compton was operating was set to expire on March 31, 1999, and that Compton was required either to sign an agreement and pay $18,000 for the next six months of operations or discontinue operations on the frequencies effective midnight, March 31, 1999.15

5. By letter dated April 1, 1999, Compton sought from the Commission special temporary authority (STA) to continue to operate under the same call signs and on the frequencies it had been leasing from Kay.16 Compton stated that it was unable to discontinue use of Kay’s frequencies by April 1, 1999, because it had no alternative form of communications.17 Compton noted that it was in the final stages of engineering testing in order to be able to license frequencies in its own name.18 By letter dated April 5, 1999, Kay objected to Compton’s STA request.19 Kay stated that he held authorizations for the channels on which Compton sought the STA and that he and Compton were currently in the midst of a contract dispute.20 On April 21, 1999, the Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau (“Branch”), denied Compton’s STA

7 Id.; Letter from Hourie L. Taylor, Chief of Police, City of Compton Police Department to Mike Regiec, Federal Communications Commission (dated Apr. 1, 1999) at 1 (Compton First STA Request).

8 Kay Petition for Reconsideration at 2.

10 Id. at 2-3.

11 Id. at 3.

12 Id.

13 Id.

14 Id.

15 Letter from Laurence Jay Feinberg to Compton (dated Mar. 24, 1999) at 1-2.

16 Compton First STA Request.

17 Id. at 2.

18 Id.

19 Letter from Robert J. Keller, P.C. to Michael Regiec, Wireless Telecommunications Bureau, Federal Communications Commission (dated Apr. 5, 1999) at 1. 2 Federal Communications Commission DA 00-786 request.21 The denial stated that the frequencies for which Compton sought the STA were licensed to Kay, who apparently had been providing the channels to Compton for fourteen months. 22 It further stated that the Commission cannot force Kay to provide Compton with service, and that if Compton wished to have a license of its own, it should apply for one.23

6. By letter dated April 20, 1999, Compton filed another STA request, this time to operate on three frequency pairs in the 506 MHz band.24 Compton stated in the STA request that it had applied for its own licenses and had conducted tests with adjacent channel users.25 Compton stated that it was applying for the STA to perform law enforcement functions for the safety of its citizens and visitors. 26 Compton did not send a copy of the request to Kay. The Branch granted the Compton Second STA Request effective April 26, 1999.27 On May 26, 1999, Kay filed a petition for reconsideration of the Branch’s action granting the Compton Second STA Request.28

III. DISCUSSION

7. To file a request for reconsideration, a person must either be a party to the proceeding or be one whose interests are adversely affected by the action in question, in which case it shall show why it was not possible to participate in the proceeding earlier.29 Kay did not file an opposition to Compton’s Second STA Request. Thus, Kay’s status as a party to this proceeding has not been established by his prior participation herein.30 Moreover, for the reasons set forth below, we find that Kay is not one whose interests are adversely affected by the subject action, i.e., the grant of the Second STA Request, in a manner that is cognizable under the Commission’s rules and policies.

8. Generally, to establish standing in licensing matters, a person must show (1) a personal injury “in fact,” (2) that the injury is fairly traceable to the challenged action, and (3) that it is likely, as opposed to merely speculative, that the requested relief will redress the injury. 31 In this case, we find that Kay’s 20 Id.

21 Letter from Annette Ritchie, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division to Hourie L. Taylor, Chief of Police, City of Compton (dated Apr. 21, 1999).

22 Id.

23 Id.

24 Letter from Hourie L. Taylor, Chief of Police, City of Compton Police Department to Mike Regiec, Federal Communications Commission (dated Apr. 20, 1999) at 1-2 (Compton Second STA Request).

25 Id. at 2.

26 Id. at 1.

27 Effective November 1, 1999, the Branch granted Compton’s request to extend the STA until May 1, 2000.

28 Kay Petition for Reconsideration.

29 47 C.F.R. § 1.106(b).

30 San Luis Obispo Limited Partnership, Memorandum Opinion and Order and Forfeiture Order, 11 FCC Rcd 9616, 9617 ¶ 4 (1996).

31 Daniel R. Goodman, Receiver; Dr. Robert Chan, Petition for Waiver of Sections 90.633(c) and 1.1102 of the Commission’s Rules, Order on Reconsideration, 14 FCC Rcd 20547, 20549 ¶ 4 (1999). See also Application of 3 Federal Communications Commission DA 00-786 alleged injury is fairly traceable to Compton’s refusal to continue to use (and pay for the use of) Kay’s frequencies, not to the challenged action – the Branch’s granting Compton an STA to operate on other frequencies.32 The Branch’s action granting the STA did not cause Compton to decide not to use Kay’s frequencies. Indeed, Kay’s recitation of the circumstances concerning his business dealings with Compton indicate that Compton’s refusal to continue making use of Kay’s frequencies occurred before the Branch’s action. In short, Kay’s “alleged injury occurred before, existed at the time of, and continued unchanged” after the Branch’s action.33 We find, therefore, that is not fairly traceable to the Branch’s grant of the Second STA request.

9. Moreover, we find that it is not likely that granting Kay’s requested relief, i.e., denying the STA request, would redress Kay’s alleged injury. Were we to deny Compton’s request for an STA, Compton still would be free to obtain frequencies from another third-party provider, to obtain its own license (which it is in the process of doing), or to otherwise find alternate means to operate its communications system.34 Denial of its STA request might frustrate Compton, but it would not necessarily lead to Compton’s agreeing to use and pay for the use of Kay’s frequencies. 35 We therefore find that Kay lacks standing to file a petition for reconsideration of the grant of Compton’s request for an STA for operations in the 506 MHz band. 10. Kay also complains that Branch staff acted in bad faith in granting Compton’s request for an STA. Kay complains, for example, that no one contacted him regarding this matter. Contrary to Kay’s contentions, however, Branch staff was not obligated to do so. We are aware of no regulatory or statutory requirements, and Kay has cited none, that required Compton to serve Kay with a copy of its second STA request. Indeed, both an application for an STA and an application for a license in the Private Wireless Services (which includes the Public Safety Pool) may be granted without being placed on public notice.36 Further, we note that formal petitions to deny do not lie against applications for such licenses (although we generally consider concerns raised by parties as informal objections when making our independent public interest assessment).37 Nor is there any requirement that Branch staff independently inform Kay of Compton’s request to use alternate frequencies. While Kay states that Branch staff knew that Kay objected to Compton’s first STA request, because that request involved frequencies on which Kay was

MCI Communications Corp. and Southern Pacific Telecommunications Corp., Memorandum Opinion and Order, 12 FCC Rcd 7790, 7794 ¶ 11 (1997), aff’d sub nom Microwave Acquisition Corp. v. FCC, 145 F.3d 1410 (D.C. Cir. 1998); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 68 U.S.L.W. 4044 (U.S. Jan. 12, 2000).

32 Cf. MCI Communications Corp. and Southern Pacific Telecommunications Corp., 12 FCC Rcd at 7796 ¶ 15.

33 See Microwave Acquisition Corp. v. FCC, 145 F.3d at 1412 (citation omitted).

34 Cf. Eastern Kentucky Welfare Rights Organization v. Simon, 426 U.S. 26, 42-44 (1976) (holding plaintiffs, indigent persons, lacked standing to challenge tax-exempt standing of hospitals because it was purely speculative whether the denials of emergency room services complained of fairly could be traced to the IRS's “encouragement” of allowing the hospitals to retain their tax-exempt status without providing such services or instead resulted from decisions made by the hospitals without regard to the tax implications).

35 Cf. Microwave Acquisition Corp. v. FCC, 145 F.3d at 1412 (complaining party failed redressability requirement because decision reversing FCC order approving sale would not necessarily lead to company being sold to complaining party).

36 47 C.F.R. §§ 1.931(b), 1.933(d)(7), (9).

37 See generally 47 U.S.C. §§ 309(b), 309(d)(1); 47 C.F.R. §§ 1.901-1.981; cf. Interstate Consolidation, Inc., Memorandum Opinion and Order, FCC 00-51, ¶ 8 (rel. Feb. 17, 2000) (Commission’s rules contain no provision for filing a petition to deny against private land mobile radio license applications). 4 Federal Communications Commission DA 00-786 authorized to operate, the Branch considered Kay to be a party directly affected by the outcome. In sum, we reject Kay’s suggestion that Branch staff acted incorrectly in this matter.

11. 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), 405, and Sections 1.106 and 1.939(g) of the Commission’s Rules, 47 C.F.R. §§ 1.106, 1.939(g), the Petition for Reconsideration by James A. Kay, Jr., filed May 26, 1999, IS DISMISSED.

12. 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