NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//Order, American Mobilephone/RAM Technologies, DA 95-1632//$ $/309(d)(1) Action Upon Applications/$ RECORD ONLY Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-1632 In re Application of ) ) American Mobilphone, Inc. and ) File No. 23792-CD-AL-95 RAM Technologies, Inc. ) ) For Assignment of License for ) PLMS Stations KFQ936, KWT851, ) KJU819 and WRV945 in the Paging ) and Radiotelephone Service ) ORDER By the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: Adopted: July 21, 1995 Released: July 24, 1995 I. INTRODUCTION 1. The Wireless Telecommunications Bureau has before it the above-captioned application of American Mobilphone, Inc. ("AMI") and RAM Technologies, Inc. ("RAM") for assignment of various licenses in the Paging and Radiotelephone Service from AMI to RAM; a petition to deny that application filed by Capitol Radiotelephone Company, Inc. ("Capitol"); AMI and RAM's joint opposition thereto, and Petitioner's reply. For the reasons discussed below, we deny Capitol's petition to deny, and grant the AMI/RAM assignment application. II. BACKGROUND 2. RAM is the licensee of numerous Private Carrier Paging ("PCP") stations operating on the 152.48 MHz frequency at locations throughout Kentucky, West Virginia, and Ohio. Capitol is one of the largest providers of Paging and Radiotelephone Services (formerly, Public Land Mobile Services) in West Virginia. In 1990, the Commission granted Capitol's PCP applications on the 152.48 MHz frequency. Shortly thereafter, RAM complained to the Commission that it was receiving harmful interference from Capitol's operations on their shared channel; Capitol denied that it was causing such interference. 3. Following an investigation by the Field Operations Bureau ("FOB"), the issuance of a Notice of Apparent Liability to Capitol, and continued complaints, the Commission designated Capitol's PCP and radio common carrier ("RCC") paging licenses for revocation, as well as finding Capitol apparently liable for forfeitures, to be determined at hearing. After the hearing, the Administrative Law Judge ("ALJ") released an Initial Decision, finding, inter alia, that Capitol had not violated the Commission's rules and was qualified to remain a Commission licensee. The Private Radio Bureau ("PRB") filed exceptions to the I.D., which are now pending before the Review Board. III. CONTENTIONS OF THE PARTIES 4. Capitol argues that RAM, the proposed assignee, has been found after evidentiary hearing to lack the requisite character qualifications to be a Commission licensee. Specifically, Capitol cites to certain of the ALJ's statements suggesting that RAM engaged in anti-competitive conduct in filing complaints against Capitol and that RAM, not Capitol, violated the Commission's rules governing the use of shared frequencies. Capitol alleges that, since RAM did not file exceptions to the I.D., the ALJ's findings concerning RAM's licensee qualifications are conclusive upon RAM. Capitol also argues that the subject application is incomplete, in that it fails to explain the proposed transaction or any of its material terms or conditions. 5. In response, AMI and RAM submit that Capitol lacks standing to protest the subject assignment application. AMI and RAM contend that, since the Commission did not designate any issues in the hearing against RAM, any "findings" in the I.D. concerning RAM's qualifications are dicta and are not relevant to the Commission's disposition of this application. AMI and RAM further state that the application contains all the information required by the Commission's rules and that they have no obligation to disclose additional information at the behest of a competitor. Finally, the Applicants allege that Capitol's Petition is a "strike" pleading, intended only to delay an assignment of licenses from one of Capitol's competitors to another. 6. In its Reply, Capitol states that, as a competitor of AMI in the markets concerned in this transaction, it has standing to protest the application. In the alternative, Capitol states that the Commission is obligated to review its allegations concerning RAM's character qualifications in any event, as a part of the Commission's overall public interest responsibilities. Capitol argues that the ALJ's findings with regard to RAM are not dicta, but rather, are part of the I.D.'s holding; and that RAM has waived any objection to those findings by failing to file exceptions to the I.D. and is precluded by the doctrine of collateral estoppel from re-litigating its qualifications to be a Commission licensee. IV. DISCUSSION 7. Under Section 309(d) of the Communications Act of 1934, as amended ("the Act"), parties filing a petition to deny an application must make specific allegations of fact sufficient to show that a grant of the application would be prima facie inconsistent with the public interest, convenience, and necessity. The Commission bases its threshold determination on an evaluation of the petition and supporting affidavits. Once the Commission determines whether the petitioner has made a prima facie case under Section 309(d)(1), the Commission must determine whether the petitioner has presented a substantial and material question of fact upon which relief may be granted. If no such question is raised, the Commission will deny the petition and grant the application if it otherwise serves the public interest, convenience, and necessity. Based on the pleadings and supporting materials before us, we find that Capitol has not raised substantial and material questions of fact and, therefore, we will deny its petition. 8. As a preliminary matter, we find that, contrary to AMI/RAM's contention, Capitol has standing to file a petition to deny AMI/RAM's assignment application. In challenging an application, Section 309(d)(1) of the Act requires that a party filing a petition to deny demonstrate party-in-interest status. A petitioner need only establish that, as a direct competitor of the applicant, it will suffer economic injury. A showing of specific injury is not a prerequisite for establishment of standing; rather, the question of standing is independent of the merits of the petition to deny or whether a prima facie showing has been made. Here, Capitol claims standing based upon its status as a competitor of AMI in the affected service areas. Capitol does not need to demonstrate that it will suffer a direct injury from the grant of the assignment application or that a denial of the application will prevent some economic harm to Capitol. Nor must it demonstrate, or even allege, as AMI/RAM suggests, that it will be subjected to increased or materially different competition as a result of the proposed assignment. 9. Its procedural posture notwithstanding, we find meritless Capitol's contention that the application omits required information. Section 22.137 of the Commission's rules specifies the application requirements for assignments of licenses and transfers of control. Contrary to Capitol's assertions, there is no requirement in the Commission's rules that the parties to a proposed assignment provide the details of the proposed transaction. The application contains all of the information required by the rules and by FCC Form 490. Capitol argues further that, because it has filed a petition to deny the application, AMI and RAM should be required to provide greater detail concerning their transaction than is otherwise required by the rules. We disagree. The filing of a petition to deny does not confer a heightened obligation on the part of the applicants to disclose information beyond that required by the Rules. As a petitioner, Capitol has the burden of pleading sufficient facts, supported by affidavit, to establish a prima facie case that a grant of the subject application would not serve the public interest, convenience, and necessity. Capitol has alleged no facts to indicate that the transaction between AMI and RAM is anything other than a sale of assets by one existing licensee to another. 10. With respect to RAM's qualifications to remain a Commission licensee, we agree with AMI and RAM that the ALJ's statements concerning RAM's character qualifications are not binding upon our review of this assignment application. Only Capitol's qualifications and actions were designated for a hearing, not those of RAM. Indeed, the ALJ explicitly acknowledged that he had "no jurisdiction" to enter a holding as to RAM in that hearing proceeding. Therefore, the ALJ's discussion of RAM's character in that proceeding has no bearing on whether RAM is qualified to hold Commission licenses. 11. Even if RAM, not Capitol, had been designated for hearing on character issues, we would not be compelled to deny its application to buy other licenses. Rather, the Commission makes an ad hoc determination of whether an existing licensee, designated for hearing on character issues with respect to one license, may buy or sell other licenses. One of the factors in such an analysis is the passage of time since the misconduct. The misconduct alleged by Capitol concerned alleged rule violations by RAM from 1990 and 1991. Because four to five years have passed since those alleged violations occurred and the Private Radio Bureau determined at that time that only a warning was warranted with respect to the specific 1991 violation we do not believe these facts impact adversely on RAM's qualifications to remain a Commission licensee. 12. Although Capitol has failed to raise a substantial and material question of fact, we find that its petition is not so frivolous as to constitute a "strike" pleading. A party alleging a strike petition must make a strong showing that delay is the primary and substantial purpose behind a petition to deny. AMI and RAM have made no such showing. V. CONCLUSION AND ORDERING CLAUSES 13. In short, we cannot accord the ALJ's discussion of RAM's qualifications any weight in this proceeding and the alleged rule violations, even if relevant, are too remote to be considered at this time. Capitol has pled no other allegations of fact that would call into question RAM's qualifications as a licensee; rather, Capitol fails to raise any "substantial or material question of fact" under Section 309(d)(2) of the Act which would warrant a denial of RAM's application. 14. Accordingly, IT IS ORDERED that the Petition to Deny or Dismiss filed by Capitol Radiotelephone, Inc. on February 10, 1995, is DENIED. 15. IT IS FURTHER ORDERED that the application of American Mobilphone, Inc., and RAM Technologies, Inc. for assignment of license for PLMS Stations KFQ936, KWT851, KJU819 and WRV945 in the Paging and Radiotelephone Service (File No. 23792-CD-AL-95) IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Rosalind K. Allen Chief, Commercial Wireless Division Wireless Telecommunications Bureau