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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)Times New RomanTimes New Roman Bold2 KKK'Kr "i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+999999S9S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""2"2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""\4  pG;(7jC:,ynXj\  P6G;XP'7nC:,Commission's overly stringent financial qualification standards and erect an  artificial market entry barrier to virtually all small competitors. . . . It is worth  5giving 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  X4 Oapplicants 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.  x. . . .  mXFor 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.   x'[Emphasis in the original.] The letter expressly claims (at n.3) that it is exempt from the  X4 xIrestrictions of the ex parte rules. y yO ' x ԍ The letter states: "It is the understanding of The office of Advocacy submits [sic] this correspondence pursuant  x to Part I section 1.1204(b)(5) of the Commission's rules. 47 C.F.R.  1.1204(b)(5) [1996]. " That section (now  x* 1.1204(a)(5)) exempts presentations made by an agency of the federal government involving a matter over which that agency shares jurisdiction with the FCC.  Helman and Stern recount that they met with David Zesiger,  xthe Assistant Chief Counsel of the SBA's Office of Advocacy, in midApril. Stern Dec. at  17;  xHelman Dec. at  2021. At the meeting, they discussed the possibility of the SBA making a  xfiling in the Commission rulemaking and in the judicial appeal of the Big LEO Order. Helman  xrecounts that he was aware that Zesiger was working on a letter and told Zesiger that it would  xhave to be served if it addressed a specific proceeding. Helman Dec. at  21. Stern and Helman  xIstate that they were under the impression that the SBA would only address broad policy issues.  x Stern Dec. at  1819; Helman Dec. at  21. Helman recounts that Zesiger assured him that  xSBA communications were exempt from the ex parte rules. Helman Dec. at  21. Stern states  xpthat, after she had received a copy of the letter, Zesiger told her that the Commission had asked  xhim 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.  Xe4 "21. Letter from David M. Geary to Mr. Julius Genachowski (Chief Counsel) (Apr. 30,  XN4 x1997). Geary wrote this letter to Chairman Hundt's legal advisor as a director of Vula  xcCommunications (PTY) Ltd., a black business empowerment group in South Africa, with which  xMCHI is affiliated. The letter does not address the merits of the MCHI licensing proceeding but  X 4 xasks that it be expedited for reasons other than to avoid administrative delay. See paragraph 13,  x/above. The letter followed meetings arranged by Helman and Stern between Vula and several  x&FCC Commissioners' offices. Stern Dec. at  20; Helman Dec. at  22. Helman and Stern insist  x<that Vula was told of the restricted nature of the licensing proceeding. Stern Dec. at  2122;  xHelman Dec. at  23. Helman and Stern deny any prior knowledge of Geary's letter. Stern Dec.  xat  2223 Helman Dec. at  25. Helman and Stern relate that upon receiving a copy of the"",N(N(ZZ "  xIletter Stern promptly served it. Helman Dec. at  26; Stern Dec. at  23. Geary has submitted  X4 xan affidavit confirming that MCHI had no involvement with the letter. See Affidavit of David  X4 xMyles Geary dated June 24, 1997, attached to "Consolidated Opposition to Applications for Review," filed August 12, 1997, by MCHI.  X4 "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):  XNo person shall solicit or encourage others to make any presentation which he or she is prohibited from making under the provisions of this subpart.   xcIt is undisputed that MCHI's efforts to generate support for its position resulted in impermissible  xex parte presentations being made. Moreover, as LQL correctly notes, even if MCHI's intention  xwas to address policy matters in the context of rulemaking and legislation, MCHI still had a  xdresponsibility to avoid soliciting related ex parte presentations concerning the licensing  X 4 xproceeding. See Televue Systems, Inc., 10 RR 2d 950 (1967). Even if MCHI did not intend  x"to solicit ex parte presentations, it would have been preferable for MCHI to take steps to avoid  Xy4 xVinadvertently instigating ex parte presentations. See Portland Cellular Partnership, 11 FCC Rcd  xc19997, 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,  x1997 letter from Rep. Davis et al., the undated fax from Sheryll Cashin, the May 8, 1997 letter  xEfrom Thompson, and the April 30, 1997 letter from Geary. As to these communications, the  xevidence 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  x"the SBA Office of Advocacy. While MCHI's principals did have relevant discussions with the  x/SBA, the undisputed evidence reveals that they believed that the SBA only intended to address  xpolicy issues and that the SBA was conversant with the ex parte rules. Indeed, the text of the  x3letter confirms that the letter was sent based on the Office of Advocacy's belief that presentations  xby the SBA are exempt under the ex parte rules (a contention we disagree with in this instance).  xThe 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  X!4 xinstances i.e., the October 3, 1996, January 13, 1997, and March 14, 1997 letters MCHI's  xprincipals maintain that they informed the congressional offices of the restricted nature of the  x"licensing proceeding and in fact served the letters promptly upon receiving them. Their actions  xin this regard are consistent with their claim that they intended to serve the fourth such letter, that  xqof July 19, 1995. This circumstance rebuts any inference that MCHI intended that the  xpresentations should not be served and that the other parties should be deprived of notice.  X#'4 xMCHI's actions to effectuate service promptly demonstrate that, except to the extent that service"#' ,N(N(ZZ%"  xwas not technically in conformance with the Commission's rules (because service was not  xcontemporaneous with the submission to the Commission), MCHI did not intend that the  xpresentations be made on an ex parte basis, and, thus did not "solicit" an improper ex parte presentation.  X4   "26. Only in the case of the two letters from Rep. Conyers did MCHI know in advance  xof the content of the letter but took no action to ensure its service. We have no reason, however,  x"to doubt the explanation that MCHI's failure to do so reflected Stern's good faith belief that the  xyletters did not address the merits of the licensing proceeding. The May 16, 1996 letter did so  xNonly indirectly, by referring to the April 22, 1996 SBA letter, and by making a request for  xVexpeditious treatment that was technically a presentation under the ex parte rules. The May 16  xVletter indeed states that it did not seek to comment on "any specific matter before the FCC with  x<regard to MCHI." Although we believe that the August 21, 1996 letter does address the merits  xof the licensing proceeding, MCHI's action in filing the letter in the  257 proceeding is  xconsistent with its claim that it believed in good faith that the letter was relevant only to that  xrulemaking. The record contains no evidence to the contrary. We do not believe that such a  X4 xgood faith misinterpretation warrants dismissal or denial of MCHI's application. See Televue  Xy4 x"Systems, Inc., 10 RR 2d at 954  10. See also Moore County Radio Co., 1986 WL 292752 at   x4. ("The solicitation of assistance without an intent to improperly influence a determination on the merits is not disqualifying. . . .")  X4 "F27. The foregoing establishes that this case is readily distinguishable from Elkhart  X4 xTelephone Co., 11 FCC Rcd 1165 (1995), relied on by LQL. In that case, the Commission found  xthat a party to a restricted complaint proceeding supplied a United States Senator with a draft  xletter addressing the merits of the proceeding, which the person intended that the Senator execute  xcand send to the Commission. The Commission also found that the party took no steps to ensure  xthat the letter would be served on other parties. The facts here disclose no such "blatant"  X4 x_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.  XN4W' V. ORDERING CLAUSES ă  "q28. 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