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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 ) File Nos. 11-DSS-P-91(6); 18-DSS-P-91(18); ) 11-SAT-LA-95; 12-SAT-AMEND-95; APPLICATION OF MOBILE ) 158-SAT-AMEND-96 COMMUNICATIONS HOLDINGS, INC. ) ) ) ) MEMORANDUM OPINION AND ORDER Adopted: October 5, 1999 Released: October 8, 1999 By the Commission: I. INTRODUCTION 1. By this memorandum opinion and order, we deny review of a letter ruling by the Assistant General Counsel, Administrative Law Division concerning allegations that Mobile Communications Holding, Inc. (MCHI) violated the Commission's ex parte rules. Letter from John I. Riffer, Assistant General Counsel, Administrative Law Division, to Jill Abeshouse Stern, Esq. (Jun. 27, 1997). We find that the evidence before us does not support a finding that a significant violation of the ex parte rules occurred. II. BACKGROUND 2. The ex parte allegations at issue here relate to an application filed by MCHI in 1990 for a low earth orbit (non-geostationary) mobile satellite service (MSS) system in the 1.6/2.4 GHZ bands (the "Big LEO" service). Five other companies: Motorola Satellite Communications, Inc. (Motorola), TRW, Inc. (TRW), Loral/Qualcomm Partnership, L.P. (LQL), AMSC Subsidiary Corporation (AMSC), and Constellation Communications, Inc. (Constellation) also filed applications for the same frequency band as MCHI. The six applications were evaluated under standards set forth in Report and Order in CC Docket No. 92-166, 9 FCC Rcd 5936 (1994) (Big LEO Order). Of particular importance here, the Big LEO Order established a "strict" two-tiered financial standard for the 1.6/2.4 GHZ bands. Under this standard, Big LEO applicants could demonstrate either: (1) sufficient internal funds, i.e., current assets or operating income, to finance the proposed system, or (2) "irrevocably committed" sources of external financing. Subsequently, the Commission's International Bureau (Bureau) found three of the applicants, Motorola, TRW, and LQL, financially qualified under the first prong of the test and granted their applications. Loral/Qualcomm, LP, 10 FCC Rcd 2333 (I.B. 1995); Motorola Satellite Communications, Inc., 10 FCC Rcd 2268 (I.B. 1995); TRW, Inc., 10 FCC Rcd 2263 (I.B. 1995) Additionally, on January 31, 1995, the Bureau deferred action on the other applicants, including MCHI, which relied on the second prong of the test. Mobile Communications Holdings, Inc., 10 FCC Rcd 2274 (I.B. 1995); Constellation Communications, Inc., 10 FCC Rcd 2258 (I.B. 1995). 3. MCHI sought review of the Bureau's failure to grant its application, arguing that the financial standard unfairly favored large companies, which could easily meet the first prong of the test, over smaller companies, which had to comply with the more stringent second prong. The Commission, however, on June 27, 1996 denied review of the Bureau's ruling. See Constellation Communications, Inc., 11 FCC Rcd 18502 (1996), appeal docketed sub nom. Mobile Communications Holdings, Inc., No. 96-1239 (D.C. Cir. Jul. 10, 1996). 4. At the same time, MCHI pursued relief in the context of rulemaking and legislation. MCHI participated in Commission rulemakings, such as GN Docket No. 96-113, which was instituted pursuant to  257 of the Communications Act to investigate means of removing market entry barriers to small businesses. See Notice of Inquiry in GN Docket No. 96-113, 11 FCC Rcd 6280 (1996) (released May 21, 1996); Report in GN Docket No. 96-113, 12 FCC Rcd 16802 (1997) (released May 8, 1997). See also Report and Order in IB Docket No. 95-41, 11 FCC Rcd 2429 (1996) ("DISCO I" proceeding). MCHI also communicated with members of Congress and individuals within the Executive Branch seeking their support for legislative action and asking them to make their views known to the Commission. On July 1, 1997, pursuant to waivers of the financial standard, the applications of MCHI and Constellation were granted. Mobile Communications Holdings, Inc., 12 FCC Rcd 9663 (I.B., OET 1997); Constellation Communications, Inc., 12 FCC Rcd 9651 (I.B., OET 1997). III. EX PARTE ALLEGATIONS 5. On May 9, 1997, Motorola responded to a motion by MCHI, which had asked for expedited processing of its application, by alleging that MCHI had violated the Commission's ex parte rules by soliciting prohibited ex parte presentations. Under the ex parte rules, proceedings involving MCHI's application are "restricted," meaning that written presentations concerning the proceeding must be served on all parties, i.e., the other applicants. See 47 C.F.R  1.1208 (1996). Motorola alleged that MCHI violated 47 C.F.R.  1.1210 by soliciting or encouraging written presentations from Congress and the Executive Branch that were not served. 6. The Assistant General Counsel, Administrative Law Division (OGC) concluded that no further action was warranted based on the alleged ex parte violations. Letter from John I. Riffer, Assistant General Counsel, Administrative Law Division, to Jill Abeshouse Stern, Esq. (Jun. 27, 1997) (OGC Ruling). OGC found that MCHI did not violate the ex parte rules directly, but that its negligent behavior resulted in violations by others. OGC found that MCHI did not intend to solicit presentations regarding the restricted licensing proceeding, but rather intended to induce communications regarding relevant rulemakings. These rulemakings were either "permit-but- disclose," meaning that ex parte presentations are permissible provided they are disclosed on the record (47 C.F.R.  1.1206) or exempt from ex parte limitations. Because MCHI intended that only permissible presentations be made, OGC found no direct violation of the rules. However, according to OGC, the various communications prompted by MCHI's solicitations did in fact violate 47 C.F.R.  1.1208 because, while they did address general policy issues regarding the impact of the financial standard on small companies, they also, directly or indirectly, addressed the restricted licensing proceeding. Accordingly, OGC faulted MCHI for failing to give adequate guidance as to the restricted nature of the licensing proceeding to the individuals who subsequently made impermissible ex parte communications to the FCC. OGC stated that MCHI should have anticipated that impermissible ex parte presentations might result from its efforts to gain support. 7. Nevertheless, OGC did not believe that any sanctions were appropriate, since MCHI attempted to ensure prompt service of the impermissible presentations and no prejudice to the other parties occurred. OGC, however, admonished MCHI to take steps to prevent the filing of impermissible ex parte violations in the future. 8. LQL filed an application for review of the OGC Ruling on July 28, 1997. In response, OGC requested MCHI to submit additional information concerning the facts and circumstances relating to the various communications. Letter from John I. Riffer, Assistant General Counsel, Administrative Law Division, to John P. Janka, Esq. (Aug. 19, 1998). MCHI submitted the requested information on October 19, 1998. Letter from Eric L. Bernthal to John I. Riffer, Assistant General Counsel, Administrative Law Division (Oct. 19, 1998). MCHI's submission was supported by declarations under oath by relevant principals. IV. DISCUSSION 9. LQL contends that the evidence here establishes that willful violations of the ex parte rules occurred, because MCHI should have known that its efforts to solicit support would result in improper ex parte presentations, and that these merit sanctions against MCHI. According to LQL, the violations are aggravated by the circumstances that MCHI clearly knew about the prohibitions in the ex parte rules and that the violations were numerous and repeated. LQL asserts that it does not mitigate the seriousness of the impermissible content in the communications that the communications also contained permissible content. LQL asserts that MCHI's attempts to justify its conduct are not credible. LQL contends that MCHI's applications should be returned to pending status and that other appropriate remedial actions should be taken. 10. The alleged violations are based on 11 specific written communications. We will therefore proceed to review the facts and circumstances surrounding each communication as reflected in the evidence before us. We will focus on the following material questions: (1) Did the communication address the merits or outcome of the MCHI application proceeding? (2) Did MCHI solicit the communication? (3) Did MCHI intend or have prior knowledge that the communication addressed the merits or outcome of the application proceeding? and (4) Did MCHI act to ensure that the communication would be served on the parties to the application proceeding? 11. Letter from Senators Richard Shelby, Larry E. Craig, Connie Mack, Trent Lott, Thad Cochran, and Conrad Burns to Mr. Reed Hundt, Chairman FCC (Jul. 19, 1995). This letter clearly addresses the merits and outcome of the MCHI application. It closes: Accordingly, we respectfully request your personal review, and that of the other commissioners, of the 31 January 1995 decision regarding the applicants whose request for license was deferred. We urge you to consider approval of those applicants that did show significant preplanned support comparable to the non-committed assets of applicants whose licenses were approved. We would most appreciate the results of your decision and review within 30 days. MCHI's President and Chief Executive Officer, David Castiel, indicates that, after meeting Senator Shelby at the opera, he told the Senator that MCHI's application had been deferred because of the FCC's overly stringent financial standard. Castiel Dec. at  9. Castiel insists, however, that he expressly told Sen. Shelby that he did not want the Senator to "do anything about the situation." Id. Later, after "staff level discussions" occurred among MCHI, one of MCHI's vendors, and Senator Shelby's office, the Senator decided to sponsor a letter concerning the financial standard. Id. at  10. MCHI states that, although the letter was to deal with policy matters, MCHI intended to serve the letter, but did not receive a copy until notified by the Commission that the letter had been filed. Id. at  11. 12. Letter from Senators Richard Shelby, Larry E. Craig, Kit Bond, Howell Heflin, Conrad Burns, Daniel Inouye, and Connie Mack to The Honorable Reed E. Hundt (Oct. 3, 1996). This letter also addresses the merits of the MCHI proceeding. It states: The Commission possesses the authority -- including waivers, modifications and other procedural variations -- to assure, even in current proceedings, a level playing field for small businesses, entrepreneurs and similar entities. We request that the FCC review and reconsider the decision to apply the "stringent financial showing" test in the Big LEO proceedings. Frank M. Moore, who had been retained by MCHI to obtain congressional support for the elimination of market entry barriers for small businesses in the  257 proceeding, recalls that he discussed MCHI's application in meetings with the offices of the seven senators. Moore Dec. at  5. Moore claims that he discussed the MCHI application to illustrate how the Commission's policy creates entry barriers for small businesses. Id. He states that he informed the Senators about the restricted nature of the licensing proceeding. Id. at  6. He further states that he attempted to coordinate the service of the letter that resulted from these meetings with MCHI's Vice President and General Counsel, Jill Abeshouse Stern, who confirms that she filed it as soon as it was received. Id. at  6-7; Stern Dec. at  4. 13. Letter from Representative John Conyers, Jr. to The Honorable Reed Hundt (May 16, 1996). Rep. Conyers' letter does not directly address the merits of the MCHI licensing proceeding. Indeed, it indicates that ". . . I do not seek to comment on any specific matter before the FCC with regard to MCHI . . . ." It does, however, refer with approval to a letter from the Small Business Administration (SBA) (discussed at paragraph 20 below) that does address the merits of the MCHI application and thus can be read as indirectly addressing the merits. Moreover, the letter urges the Commission to expedite the appeal of the MCHI application for reasons other than to avoid administrative delay, which constitutes a "presentation" under 47 C.F.R.  1.1202 (Note) (1996) (then in effect). Stern recalls that Weldon Latham, an attorney retained by MCHI to assist in its government relations efforts, may have met with Rep. Conyers. Stern Dec. at  6. She indicates that she reminded Latham of the requirements of the ex parte rules. Id. She relates that she reviewed a draft of the letter that asked the FCC to serve the letter on the parties if necessary but did not see the final letter. Id. 14. Letter from Representative John Conyers, Jr. to The Honorable Reed Hundt (Aug. 21, 1996). Rep. Conyers' follow up letter addresses the merits of the MCHI proceeding when it says: As Section 257 of the Telecommunications Act of 1996 makes clear, we want to see small business market entry barriers removed. This involves not only the formal inquiry procedure the FCC now has underway, which I commend. Its intent is also that you look for ways to interpret the rules you have established in current proceedings so that you remove any market entry barriers to small businesses. That is what I believe the SBA meant in its letter sent to you on April 24, 1996, regarding MCHI and the Big LEO proceeding. According to Stern, Rep. Conyers told her that he wanted to respond to the FCC's reply to his first letter. Stern Dec. at  7. She states that she reviewed a draft of the letter. Id. Stern did not serve the letter because she believed it concerned the  257 rulemaking, in which she subsequently filed the letter and because the FCC's response to Rep. Conyers' first letter was not served by the FCC. Id. 15. Letter from Representative Edolphus Towns to Mr. William F. Caton, [Acting] Secretary (Jan. 13, 1997). Rep. Towns letter explicitly advocates the grant of the MCHI application. It states: I urge the Commission to act favorably and expeditiously approve this [i.e., MCHI's] application. . . . MCHI has obtained financial support from both the United States and international investors. . . . There appears to be no question that MCHI has both the financial backing and technical ability to construct and launch a Big Leo system. . . . I hope that the FCC will act as soon as possible to approve MCHI's application. Castiel, Gerald B. Helman, MCHI's Vice President for International and Governmental Affairs, and Thomas H. Quinn, a lawyer for MCHI, recall meeting with Rep. Towns to discuss MCHI's business connections with South Africa. Castiel Dec. at  12; Helman Dec. at  11; Quinn Dec. at  4. They indicate that Towns was not specifically asked for a letter about MCHI, but that they hoped to generate a congressional letter for submission in the  257 proceeding. Castiel Dec. at  12; Helman Dec. at  11. Helman states that he was aware that Rep. Towns' assistant was working on a letter but that he did not know the specific contents. Helman Dec. at  11. He relates that he believes that Rep. Towns' office was informed that the MCHI licensing proceeding was restricted, and he claims that once he received the letter, he forwarded it to Stern for service. Id. at  11-12. Stern confirms that she promptly served the letter. Stern Dec. at  8. 16. Letter from Representative Edolphus Towns to The Honorable Reed Hundt (Mar. 14, 1997). Rep. Towns' second letter also specifically advocates the grant of MCHI's application: There are four primary reasons why it is vitally important that MCHI be awarded a license. . . . Clearly, the merits of awarding a license favor MCHI. Helman and Moore report that they communicated with Rep. Towns' office prior to this letter but deny that they solicited it. Helman Dec. at  13; Moore Dec. at  10. Moore asserts that he informed Rep. Towns' office that the MCHI licensing proceeding was restricted. Moore Dec. at  11. Moore indicates that he saw a draft of the letter and requested Rep. Towns to make a copy available to him so that he could effect service. Id. He further indicates that Stern made prompt service. Id. Stern confirms that she served the letter. Stern Dec. at  9. 17. Letter from Representative Tom Davis, James P. Moran, and Bob Goodlatte to The Honorable Reed E. Hundt (Jun. 6, 1997). This letter also advocates the grant of MCHI's license. It states: We believe that the grant of the two remaining applications [i.e., MCHI and Constellation] in the Big LEO service will allow for a more competitive market in the Big LEO services. . . . . Grant of these two licenses will also demonstrate the Commission's commitment to small businesses and entrepreneurs. . . . We would urge you to see that these applications are processed immediately so that the additional U.S. Big LEO operators can begin to offer competitive service to the public. MCHI professes no knowledge of how this letter came to be sent and suggests that another applicant was responsible. 18. Fax from Sheryll Cashin to Cathy Sandoval (undated). The fax in question is a cover letter to materials forwarded by Cashin, Staff Director of the Community Empowerment Board, Office of the Vice President, to Sandoval, chief of the Commission's Office of Communications Business Opportunities (OCBO). It says simply "Cathy, what do you make of this?" Attached is an April 30, 1996 letter from MCHI attorney Latham to Vice President Gore requesting a meeting to discuss MCHI. Latham's letter states: "At a minimum, the FCC should 'waive' its unfair regulations and promptly award a license to MCHI. . . ." The letter references the letter from the SBA discussed below at paragraph 20. Stern relates that the Latham letter was intended to secure a meeting with the Office of the Vice President. Stern Dec. at  10. She and Helman indicate that, with Latham, they met with Greg C. Simon, an advisor to Vice President Gore. Id.; Helman Dec. at  16. They maintain that they did not ask Simon to contact the Commission and had no knowledge that he would. Stern states that Simon said that he was aware that the Office of the Vice President could not become involved in an ongoing Commission proceeding. Stern Dec. at  11. MCHI recalls no contacts with Cashin. 19. Letter from W. David Thompson to Ms. Kate Carr (May 8, 1996). The evidence before us does not disclose how this letter from the President of Spectrum Astro, Inc., one of MCHI's contractors, to Carr, a special assistant to President Clinton was referred to the Commission. The letter complains of the Commission's financial standard and attaches the SBA letter and a "Briefing Paper" regarding MCHI. MCHI denies any contact with Carr or any prior knowledge of the letter. Stern states that, after she learned of the letter, she contacted Spectrum Astro's attorney to ensure that no further letters would be sent. Stern Dec. at  15. 20. Letter from Jere Glover, Chief Counsel, to the Honorable Reed E. Hundt (Apr. 22, 1996). Glover's letter, written as chief counsel for the SBA's Office of Advocacy, specifically addresses the MCHI application proceeding. It recites: To uphold the Bureau Order would establish further precedent for the Commission's overly stringent financial qualification standards and erect an artificial market entry barrier to virtually all small competitors. . . . It is worth giving the Bureau Order closer scrutiny, not so much to judge the adequacy of MCHI's financial showing but to highlight the burden it places on smaller applicants like MCHI. . . . [I]t is difficult to believe that none of these sources [relied on by MCHI for financing] is deserving of the credibility vested in it by MCHI. . . . . For these reasons, the office of Advocacy urges the Commission to grant MCHI's appeal of the Bureau Order and require the Bureau to reexamine its overly stringent qualifications standard for smaller companies, in general. [Emphasis in the original.] The letter expressly claims (at n.3) that it is exempt from the restrictions of the ex parte rules. Helman and Stern recount that they met with David Zesiger, the Assistant Chief Counsel of the SBA's Office of Advocacy, in mid-April. Stern Dec. at  17; Helman Dec. at  20-21. At the meeting, they discussed the possibility of the SBA making a filing in the Commission rulemaking and in the judicial appeal of the Big LEO Order. Helman recounts that he was aware that Zesiger was working on a letter and told Zesiger that it would have to be served if it addressed a specific proceeding. Helman Dec. at  21. Stern and Helman state that they were under the impression that the SBA would only address broad policy issues. Stern Dec. at  18-19; Helman Dec. at  21. Helman recounts that Zesiger assured him that SBA communications were exempt from the ex parte rules. Helman Dec. at  21. Stern states that, after she had received a copy of the letter, Zesiger told her that the Commission had asked him to serve the parties, although he continued to believe that service was not required, and Stern may have provided him with a list of parties. Stern Dec. at  19. 21. Letter from David M. Geary to Mr. Julius Genachowski (Chief Counsel) (Apr. 30, 1997). Geary wrote this letter to Chairman Hundt's legal advisor as a director of Vula Communications (PTY) Ltd., a black business empowerment group in South Africa, with which MCHI is affiliated. The letter does not address the merits of the MCHI licensing proceeding but asks that it be expedited for reasons other than to avoid administrative delay. See paragraph 13, above. The letter followed meetings arranged by Helman and Stern between Vula and several FCC Commissioners' offices. Stern Dec. at  20; Helman Dec. at  22. Helman and Stern insist that Vula was told of the restricted nature of the licensing proceeding. Stern Dec. at  21-22; Helman Dec. at  23. Helman and Stern deny any prior knowledge of Geary's letter. Stern Dec. at  22-23 Helman Dec. at  25. Helman and Stern relate that upon receiving a copy of the letter Stern promptly served it. Helman Dec. at  26; Stern Dec. at  23. Geary has submitted an affidavit confirming that MCHI had no involvement with the letter. See Affidavit of David Myles Geary dated June 24, 1997, attached to "Consolidated Opposition to Applications for Review," filed August 12, 1997, by MCHI. 22. Analysis. We agree with OGC that no significant violation of the ex parte rules occurred and no sanction is warranted against MCHI. Pursuant to 47 C.F.R.  1.1210 (1996): No person shall solicit or encourage others to make any presentation which he or she is prohibited from making under the provisions of this subpart. It is undisputed that MCHI's efforts to generate support for its position resulted in impermissible ex parte presentations being made. Moreover, as LQL correctly notes, even if MCHI's intention was to address policy matters in the context of rulemaking and legislation, MCHI still had a responsibility to avoid soliciting related ex parte presentations concerning the licensing proceeding. See Televue Systems, Inc., 10 RR 2d 950 (1967). Even if MCHI did not intend to solicit ex parte presentations, it would have been preferable for MCHI to take steps to avoid inadvertently instigating ex parte presentations. See Portland Cellular Partnership, 11 FCC Rcd 19997, 20011  38 (1996). The facts before us, however, do not suggest that MCHI violated its responsibilities to any significant degree. 23. There is no basis to attribute to MCHI four of the presentations, namely the June 6, 1997 letter from Rep. Davis et al., the undated fax from Sheryll Cashin, the May 8, 1997 letter from Thompson, and the April 30, 1997 letter from Geary. As to these communications, the evidence discloses no prior contact between MCHI and the person making the presentation. Nor does it show that MCHI had any knowledge that the presentation would be made. 24. We also find no basis to fault MCHI with respect to the April 22, 1996 letter from the SBA Office of Advocacy. While MCHI's principals did have relevant discussions with the SBA, the undisputed evidence reveals that they believed that the SBA only intended to address policy issues and that the SBA was conversant with the ex parte rules. Indeed, the text of the letter confirms that the letter was sent based on the Office of Advocacy's belief that presentations by the SBA are exempt under the ex parte rules (a contention we disagree with in this instance). The evidence does not indicate that MCHI's principals had any knowledge of the contents of the letter before it was sent. 25. As to the presentations by Senators Shelby et. al and Rep. Towns, in three of the four instances -- i.e., the October 3, 1996, January 13, 1997, and March 14, 1997 letters -- MCHI's principals maintain that they informed the congressional offices of the restricted nature of the licensing proceeding and in fact served the letters promptly upon receiving them. Their actions in this regard are consistent with their claim that they intended to serve the fourth such letter, that of July 19, 1995. This circumstance rebuts any inference that MCHI intended that the presentations should not be served and that the other parties should be deprived of notice. MCHI's actions to effectuate service promptly demonstrate that, except to the extent that service was not technically in conformance with the Commission's rules (because service was not contemporaneous with the submission to the Commission), MCHI did not intend that the presentations be made on an ex parte basis, and, thus did not "solicit" an improper ex parte presentation. 26. Only in the case of the two letters from Rep. Conyers did MCHI know in advance of the content of the letter but took no action to ensure its service. We have no reason, however, to doubt the explanation that MCHI's failure to do so reflected Stern's good faith belief that the letters did not address the merits of the licensing proceeding. The May 16, 1996 letter did so only indirectly, by referring to the April 22, 1996 SBA letter, and by making a request for expeditious treatment that was technically a presentation under the ex parte rules. The May 16 letter indeed states that it did not seek to comment on "any specific matter before the FCC with regard to MCHI." Although we believe that the August 21, 1996 letter does address the merits of the licensing proceeding, MCHI's action in filing the letter in the  257 proceeding is consistent with its claim that it believed in good faith that the letter was relevant only to that rulemaking. The record contains no evidence to the contrary. We do not believe that such a good faith misinterpretation warrants dismissal or denial of MCHI's application. See Televue Systems, Inc., 10 RR 2d at 954  10. See also Moore County Radio Co., 1986 WL 292752 at  4. ("The solicitation of assistance without an intent to improperly influence a determination on the merits is not disqualifying. . . .") 27. The foregoing establishes that this case is readily distinguishable from Elkhart Telephone Co., 11 FCC Rcd 1165 (1995), relied on by LQL. In that case, the Commission found that a party to a restricted complaint proceeding supplied a United States Senator with a draft letter addressing the merits of the proceeding, which the person intended that the Senator execute and send to the Commission. The Commission also found that the party took no steps to ensure that the letter would be served on other parties. The facts here disclose no such "blatant" violation. Furthermore, even in Elkhart, the Commission did not find the violation sufficiently serious to warrant dismissal of the party's underlying complaint. 11 FCC Rcd at 1166  11. V. ORDERING CLAUSES 28. ACCORDINGLY, IT IS ORDERED, That the Motion to Strike, filed August 25, 1997, by Mobile Communications Holdings, Inc. IS DENIED. 29. IT IS FURTHER ORDERED, That the Application for Review, filed July 28, 1997, by L/Q Licensee, Inc. IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary