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. ***************************************************************** ******** $//, Order, Fair oaks Cellular Partners, FCC 95-339//$ $/ 22.917(c)(5) Demonstration of financial qualifications/$ RECORD ONLY FCC 95-339 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re Application of ) ) FAIR OAKS CELLULAR ) File No. 10960-CL-P-549-A-89 PARTNERS ) ) for Authorization to Construct ) and Operate a New Domestic Public ) Cellular Radio Telecommunications ) Service on Frequency Block A to ) serve Rural Service Area No. 549 ) New Hampshire 2 - Carroll ) ORDER Adopted: August 4, 1995 Released: August 9, 1995 By the Commission: I. INTRODUCTION AND BACKGROUND 1. In this order, we address petitions for reconsideration filed by Optima Cellular Partnership (Optima) on January 7, 1993 and Schuylkill Mobile Fone, Inc. (Schuylkill) on December 31, 1992. Optima and Schuylkill (jointly "Petitioners") request that the Commission reconsider its designation of Fair Oaks Cellular Partners (Fair Oaks) as the tentative selectee for a license to provide cellular service in Rural Service Area (RSA) No. 549 on frequency block A. For the reasons discussed below, we deny the petitions for reconsideration and grant Fair Oaks' license application. 2. On December 20, 1989, the Commission held a cellular lottery for non-wireline applicants in the New Hampshire 2 RSA (NH 2 RSA). Fair Oaks won the cellular lottery for the NH 2 RSA. Petitioners were unsuccessful applicants in the lottery. On May 4, 1990, the Common Carrier Bureau announced Fair Oaks as the tentative selectee for the NH 2 RSA pursuant to its amended application. 3. Petitioners filed timely Petitions to Deny against Fair Oaks on June 21, 1990. Petitioners alleged that the firm financial commitment letter contained in Fair Oaks' initial application failed to meet the requirements of Section 22.917(c)(5) of the Commission's rules, which sets forth the required elements of the firm financial commitment letter to be submitted with each RSA applicant's application. According to Petitioners, the commitment letter provided by Cellular Equipment Management Services (CEMS) for Fair Oaks was defective because it did not establish that CEMS was the financial arm of a capital equipment supplier with the funds to support its commitments. 4. Fair Oaks filed a Consolidated Opposition to the Petitions to Deny on July 23, 1990, stating that the CEMS letter complied with Section 22.917(c)(5) because CEMS was the financial arm of a capital equipment supplier. Fair Oaks also amended its application by submitting a firm financial commitment letter from Motorola, Inc. (Motorola). On December 3, 1990, the Common Carrier Bureau Mobile Services Division (MSD) requested additional information from Fair Oaks concerning the CEMS letter. Specifically, MSD requested information concerning CEMS's owners, directors, officers and key management personnel and its status as an incorporated entity; information concerning the number and dollar amount of financial commitments provided to cellular applicants as of November 10, 1988; and audited balance sheets and other financial statements for 1988 through 1990. MSD also requested information concerning whether CEMS or Plexsys Corporation filed for bankruptcy or creditor protection between 1988 and 1990; who filed Fair Oaks' application; information concerning the circulation of a partnership offering entitled "Organizational Concept & Funding Proposal"; and information concerning Computerized Cellular Engineering, Inc.'s (CCE) owners, directors, officers and key management personnel on November 10, 1988 and CCE's relationship to CEMS. 5. Fair Oaks responded to MSD in two separate filings on January 18, 1991 and January 22, 1991. Fair Oaks responded to the information request by supplying all the requested information except CEMS's audited balance sheets and financial information from 1988 through 1990. Although Fair Oaks requested the balance sheets and financial information, CEMS did not make them available to Fair Oaks. CEMS responded to Fair Oaks' requests by submitting an unaudited balance sheet for 1990 to Fair Oaks. 6. On October 15, 1991, the Commission granted the petitions to deny and dismissed Fair Oaks' application. The Commission stated that Fair Oaks did not submit an adequate firm financial commitment letter under Section 22.917(c)(5) when it filed its application and that Fair Oaks failed to provide sufficient support in its response to the MSD information request. The Commission refused to accept the Motorola letter because it was not filed with Fair Oaks' initial application as required by Section 22.917. 7. Following the Commission's dismissal of its application, Fair Oaks filed a Petition for Reconsideration and Reinstatement Nunc Pro Tunc, in which it argued that the provisions of Section 22.917(c)(5) were unenforceable against Fair Oaks because the Commission had failed to obtain approval of the rule from the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1980 (PRA). Because Section 22.917(c)(5) was not approved by OMB, Fair Oaks argued, the Commission was precluded from dismissing Fair Oaks' application for failure to comply with the requirements of the rule. 8. In our Kent Foster decision, we concluded that the arguments raised by Fair Oaks and other similarly situated applicants with respect to Section 22.917(c)(5) had merit, and that the rule could not be enforced against these applicants because of the Commission's failure to comply with the PRA. Although a proposed version of the rule had received OMB approval, we concluded that the final version of Section 22.917(c)(5) was "so substantively and materially modified as to render the rule, as a whole, unenforceable under the PRA." Accordingly, we reinstated Fair Oaks' application and restored its status as the tentative selectee for the NH 2 RSA. 9. Petitioners filed the instant Petitions for Reconsideration (Petitions) of the order on December 31, 1992 and January 7, 1993, requesting that Fair Oaks' application again be dismissed and that another lottery be held for the NH 2 RSA. Fair Oaks opposed the petitions by filing Motions to Strike and Contingent Oppositions to the Petitions for Reconsideration. Petitioners filed replies in response to these pleadings. II. CONTENTIONS OF THE PARTIES 10. On reconsideration, Petitioners argue that notwithstanding the unenforceability of Section 22.917(c)(5), alternative grounds exist to dismiss Fair Oaks' initial application. Optima argues that the Commission cannot reinstate Fair Oaks' application where alternate grounds for dismissal exist. Schuylkill notes that under the remaining provisions of Section 22.917(c) that were not invalidated by the PRA, Fair Oaks was required to show either a firm financial commitment or available financial resources necessary to construct and operate for one year pursuant to Section 22.917(c)(1) of the Commission's rules. Schuylkill alleges that Fair Oaks failed to provide financing for the realistic and prudent estimate of the costs of construction, operating, and other initial expenses for one year, as required by Section 22.917(c)(4) of the Commission's rules. Schuylkill also alleges that Fair Oaks violated Section 22.923(a)(7) of the Commission's rules by failing to attach an exhibit showing the cost of construction and demonstrating how it planned to finance construction. 11. Petitioners also argue that Fair Oaks' application should be dismissed on the grounds that Fair Oaks provided insufficient responses to MSD's requests for additional information regarding the CEMS letter. Schuylkill alleges that Fair Oaks violated Commission rules by failing to submit documentation to substantiate that CEMS was a bona fide financial arm of a capital equipment supplier as requested by MSD. Optima similarly asserts that Fair Oaks' failure to submit additional documentation in response to the MSD information request is a disqualifying defect. 12. In response, Fair Oaks first contends that the Petitions are premature and unauthorized pleadings under Sections 1.106 and 1.823(c) of the Commission's rules. Fair Oaks argues that the Commission's reinstatement of Fair Oaks' application and redesignation of Fair Oaks as a tentative selectee were not final Commission actions subject to reconsideration. 13. Fair Oaks also denies that alternative grounds exist for dismissal of its application and contends that its initial application fully complied with the Commission's rules. Fair Oaks argues that its initial reliance upon the CEMS commitment letter was reasonable and in good faith, and that it complied with MSD information requests for further information about CEMS to the best of its ability. Fair Oaks further contends that, if the Commission determines that the CEMS letter was not a sufficient financial commitment, Fair Oaks should be allowed to amend its application to submit the Motorola letter. Finally, Fair Oaks asserts that a Commission's refusal to accept the Motorola letter violates Section 3512 of the PRA because it penalizes Fair Oaks for failing to provide information in response to a request that was not approved by OMB. III. DISCUSSION 14. As a threshold matter, we reject Fair Oaks' contention that the petitions before us are premature. Section 1.106(b)(1) permits a party to file a petition for reconsideration of any Commission action that adversely affects the party's interests. Furthermore, Section 405 of the Communications Act, as amended, confers a statutory right to petition for reconsideration. As noted above, Petitioners were unsuccessful applicants in the NH 2 RSA lottery. When the Commission reinstated Fair Oaks as the tentative selectee for NH 2 RSA, Petitioners' right to participate in a second lottery for the license was extinguished. This plainly constituted an action adverse to Petitioners' interests entitling them to request reconsideration. 15. Addressing Petitioners' arguments on the merits, we find that Petitioners have failed to demonstrate the existence of alternative grounds for dismissing Fair Oaks' application. Petitioners contend that the CEMS commitment letter is defective even if we do not apply the specific requirements of Section 22.917(c)(5). We disagree. While it is true, as Petitioners contend, that Fair Oaks' application remains subject to the remainder of Section 22.917(c), which was not invalidated by the PRA, we find no basis in the record to conclude that the CEMS commitment letter violated any provision other than Section 22.917(c)(5). On its face, the letter meets the requirement of Section 22.917(c)(1) that a firm financial commitment letter be submitted with the application, and we find the letter commits to provide financing to cover the reasonable and prudent estimated cost of construction, operating, and other initial expenses as required by Section 22.917(c)(4). Additionally, we find that Fair Oaks submitted the particulars regarding the cost of construction in accordance with Section 22.923(a)(7). 16. Petitioners' contention that CEMS was unqualified is premised on Fair Oaks' failure to comply with Section 22.917(c)(5), which we are precluded from applying here. Moreover, Petitioners have not alleged that Fair Oaks knew CEMS was unqualified when Fair Oaks submitted the CEMS letter with its application. We conclude that the CEMS letter alone does not give rise to an inference of bad faith, and that Petitioners have presented no independent evidence of intentional misconduct by Fair Oaks. 17. We also disagree with Petitioners' assertions that Fair Oaks' failure to provide the audited balance sheets and financial statements in its responses to MSD's requests for supplemental information rendered the application defective. While Fair Oaks' responses failed to persuade MSD that it had complied with Section 22.917(c)(5), we see no evidence to suggest that Fair Oaks' intentionally provided false or incomplete responses to MSD. 18. Having affirmed our reinstatement of Fair Oaks as tentative selectee, we further conclude that Fair Oaks should be allowed to use the Motorola letter rather than the CEMS letter to demonstrate its financial qualification to be the NH 2 RSA licensee. Although we ordinarily do not allow an RSA applicant to substitute a new commitment letter if the initial letter was defective, we believe that unique circumstances exist that justify such an amendment in this case. First, because we have concluded that Section 22.917(c)(5) is unenforceable against Fair Oaks, we have no basis to conclude that the CEMS letter was defective. Second, as we noted in Kent Foster, when application of a Commission rule violates the PRA, we must permit the applicant to prove or satisfy the legal conditions in any reasonable manner. We conclude that our reinstatement of Fair Oaks as tentative selectee entitles it to prove its financial qualifications in any reasonable manner, including by reliance on the Motorola letter, which meets the requirements set forth in Sections 22.923(a)(7) and 22.917(c). We therefore grant Fair Oaks' request to amend its application to include the Motorola letter, and find Fair Oaks to be financially qualified for grant of the NH 2 RSA license on this basis. IV. ORDERING CLAUSES 19. Accordingly, IT IS ORDERED that pursuant to Sections 4(i), 303(r) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(r) and 405 that the Petitions for Reconsideration filed by Optima Cellular Partnership on January 7, 1993 and Schuylkill Mobile Fone, Inc. on December 31, 1992 ARE DENIED. 20. IT IS FURTHER ORDERED that the Wireless Telecommunications Bureau shall grant the application of Fair Oaks Cellular Partners to be the licensee of the New Hampshire 2 RSA. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary