FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 87
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Federal Communications Commission Record
will take this opportunity to further explain the reasons
for denial of RAM's request for nunc pro tune acceptance
of its rejected applications.
11. As a general proposition, a defective PLMS application
which has been returned must be retendered with a
curative amendment prior to the cut-off date in order to
be entitled to comparative consideration, and, if not retendered
prior to the cut-off date, "[w]e will not accept
the applications nunc pro tunc. " Moore's Service, 86 FCC
2d 787, 795 (1981), cited with approval in David R.
Williams d/bla Industrial Communications, 53 RR 2d 38, 42
(1983), aff d sub nom. Williams v. FCC, No. 83-1233
(D.C. Cir. November 30, 1983). The failure to demonstrate
interference-free operation within 125 miles rendered
RAM's Boulder and Fort Collins applications
blatantly defective, and these applications were properly
returned as unacceptable for filing. RAM retendered the
applications with curative amendments on January 13,
1983, after expiration of the cut-off period.2 Thus, Moore's
Service would not permit the nunc pro tune acceptance
sought by RAM. Nor has RAM demonstrated that its
application defects qualify for the clerical error, improper
dismissal or exceptional public interest exceptions to the
general prohibition of nunc pro tunc acceptance. See e. g.
Continental Telephone Company of Illinois, CC Mimeo
No. 4166, released May 21, 1982, Mobile Telecommunications
Corp., Mimeo No. 29577, released July 14, 1981, and
William G. Bowles d/bla Mid
Missouri Mobilfone, Mimeo
No. 6385, released August 19, 1986.
12. The Intrastate decision cited by RAM is inapposite.
Intrastate's application had not been returned as defective,
and Intrastate was permitted to cure the defect through
amendment prior to processing pursuant to Moore's Servce,
supra.3 Here, RAM's applications had been returned
and its attempt to cure the defects came too late to permit
reinstatement. Nor does RAM's citation of Commission
policy regarding nunc pro tunc acceptance of rejected
AM and FM construction permit applications4 advance its
arguments herein. The "substantially complete" cut-off
standard applicable to broadcast applications was changed
to "acceptable for filing" for PLMS applications.5 Thus,
the decision in James River Broadcasting Corp. v. FCC,
399 F. 2d 581 (D.C. Cir. 1968), which governs applications
under the "substantially complete" standard, is inapplicable
to PLMS applications. Moore's Service, supra;
Tel-Page Corporation, 91 FCC 2d 1007, 1010 (1982). The
broadcast policies cited by RAM are likewise inapplicable
to the PLMS applications involved here.
13. The Bureau's denial of RAM's request for nunc pro
tunc acceptance is amply supported by, and indeed mandated
by, applicable PLMS precedent. Furthermore, we
concur with the Bureau's rejection of RAM's administrative
inefficiency and lack of prejudice arguments. The
administrative inefficiency of separate processing of
RAM's applications is the direct result of RAM's own
action in filing two admittedly defective applications.
RAM's attempt to bootstrap the inefficiency it caused into
a justification for nunc pro tune acceptance clearly fails to
justify the extraordinary relief requested. Finally, we reject
RAM's argument that the lottery results eliminate
prejudice to the other involved applicants. Our notice
and cut-off rules are intended to provide interested applicants
with an opportunity to file and ultimately to
establish finality in the determination of which mutually
exclusive applications are entitled to consideration. To
allow the result of a subsequently held lottery to modify
such determinations would preclude the orderly processing
of the thousands of PLMS applications filed each year.
When Big Sandy filed its application, it acquired the right
to compete only with acceptable, mutually-exclusive applications
filed prior to the cut-off date. RAM's Boulder
and Fort Collins applications were not acceptable for
filing by the cut-off date, and they were properly returned.
In addition, RAM's retendered applications were
never included in the lottery that was held. Thus, the fact
that RAM won the lottery has no relevance to either its
Boulder or its amended Fort Collins applications, which
must be put on public notice for the filing of competing
14. Based on the above, we find that the Application
for Review filed by Ram has no merit, and it will be
15. Accordingly, IT IS ORDERED, that the Application
for Review filed by RAM Mobile Communications of
Colorado, Inc. IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
William J. Tricarico
RAM's Fort Collins application was removed from the
lottery following RAM's February 20, 1985 amendment which
resolved the frequency conflict between the Fort Collins application
and the applications of Big Sandy and American
2 The cut-off period expired on December 27, 1982, 60 days
following the October 27, 1982 public notice of the applications
filed by Big Sandy.
3 Moore's Service also established the proposition that ". . .a
defective mutually exclusive application which has not been
returned and that is cured by a post cutoff amendment will be
retained on file .. ." (emphasis added). Moore's Service, supra at
795-796. The rationale for such treatment was that "Iw]here a
defect is overlooked at prescreening and cured before processing,
neither our prescreening nor our processing functions will
be seriously affected by our consideration of the application as
amended." (footnote omitted). Moore's Service, supra, at 795.
4 Public Notice, FCC 84-366, issued August 2, 1984, reconsideration
denied, FCC 85-185, released April 17, 1985.
s See Domestic Public Radio Services, Docket 19905, 44 FCC
2d 556, 557-558, n. 3 (1973) and Domestic Public Land Mobile
Radio Service, Docket 19905, 60 FCC 2d 549, 552 (1976).
6 RAM's retendered applications were noticed as conditionally
included in the lottery. However, RAM subsequently amended
its Fort Collins application so that it was no longer mutuallyexclusive,
and it was removed from the lottery. The condition
for the inclusion of RAM's Boulder application, nuncprotunc
reacceptance, was never satisfied.
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United States. Federal Communications Commission. FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987, book, January 1987; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc1597/m1/94/: accessed May 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.