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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)"5@^*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ*7777CE7SSxJxJxJxJxJooJfJfJfJfJ7.7.7.7.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SAxSf.fExSxSxSxo7oE]A]AN:*LS7JSSSSS.4}}S2S}277JJS77SS7J72t7[[[[^ee*C`^.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ7SJSS7]777JJ:S7A7xx*7SSSS!S7.S^7SC[227`L*724S}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS[SSSSSSS"5@^*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW*7777CE7S]xSxSxSxSxSxxJoJoJoJoJA.A.A.A.x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxJxJxJoJoJoJSSSS]]C]A]A7A]S]o.oEx]x]SxxJxJ]A]AN:*ZS7SSSSSS27}}S2}}S}277SSS77SS7S72t7[[[[_ee*C`_.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW7SSSS7]777SS:S7A7xx*7SSSS%S7}2S_7}SC[227`Z*727S}}}SxxxxxxxooooAAAAxx_xxxxxf]SSSSSSxJJJJJ....S]SSSSS[S]]]]S]"5@^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd2@v4pk"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddppaReleased:  September 18 0!H , 1996 By the Commission:  X3 ~ Introduction and Executive Summary  X3 j1. On November 1, 1994, National Communications Group, Capital Communications Group, Columbia Communications Group, Lonesome Dove Communications Group, AllAmerican Communications Partners, and Shiner Bock Group (collectively, "Petitioners") filed an Application of Review challenging the application filed by Global Cellular Communication, Inc. ("Global") for a fivechannel, nationwide, commercial 220 MHz Specialized Mobile Radio (SMR) system. Petitioners assert that Global failed to adequately establish its financial qualifications. For the reasons that follow, the Application for Review is denied.  X3 Background  X3 j2. On March 31, 1993, the Commission conducted a lottery for nationwide 220 MHz  XW3SMR licenses.IXWү yO!" ԍ jPublic Notice, Commission Announces Lottery to Select Commercial Nationwide 220 MHz Band Private  jLand Mobile Licensees, DA 93159 (released February 16, 1993), 58 Fed.Reg. 9174 (February 19, 1993) ("Nationwide 220 MHz Licenses Lottery Notice"). I The results of the lottery were released on April 1, 1993.Wү yO$" jԍ Public Notice, Commission Announces Tentative Selectees For 220222 MHz Nationwide Commercial Private Land Mobile Channels, DA 93376 (April 1, 1993). Global was one of four lottery winners, but Petitioners were not among the applicants selected in the lottery. On May 3, 1993, Petitioners filed an informal opposition to Global's application. Pursuant to delegated authority, the former Private Radio Bureau ("Bureau") dismissed Petitioners'""@,))ZZ%"  X3objections as untimely filed and lacking in merit. yOy"Ѝ Global Cellular Communication, Inc., 8 FCC Rcd 8197 (1993), erratum 8 FCC Rcd 8748 (1993). Petitioners filed a petition for  X3reconsideration which was also denied.X yO" j{ԍ Letter to William Franklin, Esquire, from W. Riley Hollingsworth, then Deputy Chief, Licensing Division dated September 15, 1994. Global was issued a license on September 19, 1994. Petitioners now seek Commission review of the Bureau's decision . j3. Petitioners object to the Bureau's dismissal of their objections to Global's financial qualifications as untimely and lacking in merit. Global asserts in its Opposition to the Application for Review, filed November 1, 1994, that Petitioners are barred from contesting  X_3the grant of its application because the Public Notice released on February 16, 1993,u_ {O "ԍ  See Nationwide 220 MHz Licenses Lottery Public Notice, supra, note 1.u listing Global's application for inclusion in the lottery, directed that objections to any applicant's suitability to be a licensee be filed within thirty days of the notice. This Public Notice states in pertinent part: Xj` ` Additionally, pursuant to 47 C.F.R.  1.41, any interested party may file information with the Commission that may reflect on the suitability of an applicant to be a licensee. Only allegations pertaining to applicants later granted tentative selectee status will be investigated and all allegations directed toward a given tentative selectee will be resolved prior to the issuance of a license to that tentative selectee. Corrections  Xy3to the listing of applicants to be included in the lottery and information relating to the suitability of these applicants must be received by the Commission within 30  XK3days of the publication of this Public Notice in the Federal Register.JKB {O>"ԍ Id. (emphasis added)J (#  X3j4. The Commission published the Public Notice in the Federal Register on February 19, 1993, making all objections due by March 21, 1993. The Public Notice provided for the orderly filing of Section 1.41 objections to any applicant's suitability to be a licensee, giving objecting parties assurance that their objections would be investigated and resolved prior to the grant of any licenses. Petitioners' Section1.41 objections, filed May 3, 1993, were  X3dismissed as untimely.E yO/!"ԍ 8 FCC Rcd at 8197, para. 3.E Petitioners assert that the Public Notice related primarily to the listing of applicants. They assert that the Public Notice did not give sufficient notice that the Commission was requiring objections to financial qualifications to be filed by the deadline listed in the Public Notice. j5. The Bureau also found Petitioners' objections to Global's financial qualifications lacking in merit. Petitioners object to Global's qualification on two bases. First, Petitioners" d ,N(N(ZZ5 " assert that Global failed to establish its financial qualifications because it did not submit a commitment letter containing an original signature. This argument is based on the premise that the Commission appliesall of the common carrier financial qualification standards, including staff and Commission precedent explaining such standards, to this private radio  X3service.AZ {O" jԍ See, Amendment of the Commission's Rules to Allow the Selection From Among Mutually Exclusive  jCompeting Cellular Applications Using Random Selection or Lotteries Instead of Comparative Hearings, 101 FCC 2d 577, 590 (1985)(footnote 32).A They also now assert, for the first time, that the Commission's orders implementing the legislation pertaining to the regulatory treatment of mobile services require the application  Xv3of common carrier precedent to the 220 MHz SMR service.G v yO " ԍ jIn 1993, Congress amended the Communications Act of 1934 creating the regulatory category of  jCommercial Mobile Radio Services (CMRS). The Omnibus Budget and Reconciliation Act of 1993, Pub. L. No.  {O " j10366, Title VI 6002(b), 107 Stat. 312, 392 (1993). See Implementation of Sections 3(n) and 332 of the  jCommunications Act, GN Dkt. No. 93252, Second Report and Order, 9 FCC Rcd 1411 (1994); Third Report and Order, 9 FCC Rcd 7988 (1994).G j6. Second, Petitioners argue that the obligation to provide financing contained in the commitment letter from Jericho State Capital Corp. ("Jericho") is illusory. Jericho included the following language in the commitment letter: Xj` ` The Lender has relied upon these representations and upon the accuracy of the submissions provided by [GCCI] and its Principals to Lender in deciding to issue this commitment, and any misstatement in any of these submissions which Lender in its sole discretion deems material will, at Lender's sole option, void this commitment.(#  Xy3Petitioners assert that this language allows the lender to void the commitment at will.H y yO"ԍ Application for Review at 89.H Global counters with the argument that the commitment is only voidable after a showing of a material misstatement, and that under New York law the lender's discretion in determining  X43what constitutes a material misstatement is limited to a good faith determination. D4,  {O" j{ԍ See Cross & Cross Properties, Ltd. v Everett Allied Co., 886 F. 2d 497, 502 (2d Cir. 1989); Boston Road  {O" j{Shopping Center, Inc. v. Teachers Insurance and Annuity Assoc., 213 N.Y.S. 2d 522 (1st Dept. 1961), aff'd, 227  jN.Y.S. 2d 444, 182 N.E. 2d 116 (1962); Richard Bruce & Co., Inc. v. J. Simpson & Co., Inc., 243 N.Y.S. 2d 503,  jj50506 (1963). Jericho State Capital Corp. is a financial Institution located in New York. The borrower, Global,  jcontractually agreed that Jericho's contractual agreement to provide funds for its nationwide 200 MHz system would  jbe governed by New York state law. Letter from Glenn M. Chwatt, Executive Vice President, Jericho State Capitol  jCorp. to Global Cellular Communications, Inc. dated November 18, 1992, and accepted by Richard L. Brown on behalf of Global on November 18, 1992.   X3 * Discussion  X3 j7. Petitioners assert that 47 C.F.R. 1.41 does not provide a deadline for filing"8 ,N(N(ZZ,"  X3informal objections to applications.[  yOy"ԍ Petitioners' Application for Review at 3, note 2.[ We agree with Petitioners that Section 1.41 of our rules, does not explicitly require informal requests for Commission action to be filed by a certain time. We note in this specific instance, however, that a filing deadline for informal objections was expressly imposed by the Public Notice. We further note that the Commission must, in certain instances, make and enforce certain procedural requirements in order to keep pace with the rapidly growing and changing telecommunications industry and to perform the tasks delegated to us by Congress. In this connection, we point to the February 16, 1993, Public Notice listing applicants for the nationwide 220 MHz lottery and requiring that any and all objections to their suitability as a licensee be filed within thirty days of publication in the Federal Register. This Public Notice was published in the Federal Register on February 19, 1993. Accordingly, we affirm the Bureau's decision on this issue. Petitioners' Application for Review mistakenly asserts that the specific request for objections against the suitability by a specific date was intended only to assure that the lottery itself had no  X 3fundamental procedural flaws.H X yO"ԍ Application for Review at 34.H Contrary to this assertion, the purpose of the notice was to facilitate the expeditious processing of objections so that lottery winners might rapidly begin provision of service. We find that the February 19, 1993, Public Notice provided all applicants with ample notice that informal objections relating to the suitability of applicants to be licensees were due within thirty days. j8. We also disagree with Petitioners' assertion that Global's application was deficient. Petitioners assert that Paragraph 20 of the Third Report and Order in GN Docket No. 93252 implementing the legislation pertaining to the regulatory treatment of mobile services requires that CMRS licensees conform to all common carrier licensing procedures.  X3Global asserts that this argument is improperly raised here for the first time.= yO"ԍ Opposition at 67.= We agree.mx {O"ԍ See, 47 U.S.C. 155(c)(5); 47 C.F.R. 1.115(c).m Additionally, Petitioners mischaracterize the paragraph they rely on in the Third Report and Order. Paragraph 20 requires only that the common carrier provisions enumerated in Title III of the Communications Act be applied to CMRS providers, such as application forms and procedures, applicant qualifying information, application fees and regulatory fees, public notice and petition to deny procedures, treatment of mutually exclusive applications, use of competitive bidding procedures, amendment of applications and license modification, and  XN3conditional and special temporary authority.N  yO $" jԍ In their Reply to Opposition to Application for Review filed November 16, 1994, Petitioners assert that they quoted the pertinent part of the sentence and that quoting the whole sentence does not alter its meaning.  We note that many of these requirements pertain to the application process and the requisite contents of an application. Because Global's application already was granted when these requirements became effective, we" b ,N(N(ZZ$ " decline to adopt Petitioners' suggestion that Global's pending application should be judged on  X3the basis of these subsequently adopted policies. {Ob" j6ԍ As noted above, Global received a license on September 19, 1994. The Third Report and Order was released on September 24, 1994, and became effective on January 2, 1995. j9. In this connection, Petitioners' attempt to challenge Global's suitability to be a Commission licensee on the basis of its financial qualifications showing. When we adopted the rules governing nationwide 220 MHz financial qualification statements, our decision referenced, by footnote, the rule describing the firm financial commitment standard applicable  X_3in the common carrier context.&_" {O2 " jԍ Report and Order, Amendment of Part 90 of the Commission's Rules to Provide for the Use of the 220222  {O " j{MHz Band by Private Land Mobile Radio Services ("220 MHz Proceeding"), 6 FCC Rcd 2356, 2375 (1991)(note  {O " jX109) aff'd, 7 FCC Rcd 4484 (1992) ("This constitutes adoption of a firm financial commitment standard. See, e.g., 47 C.F.R. 22.917(c)."). Petitioners argue that this footnote to the common carrier firm financial commitment standard resulted in the incorporation of an original signature requirement as well. We disagree with the Petitioners' reasoning. We consider the original signature component of the cellular lottery application process to be an ancillary element of the common carrier firm financial commitment standard. In this connection, we believe that absent express notice to all applicants of the Commission of adoption of an original signature rule in the nationwide 200 MHz context, the public interest would not be served by the  X 3enforcement of such a policy.  {O" j%ԍ See, Maxcell Telecom Plus, Inc. v FCC, 815 F.2d 1551, 1558 (D.C. Cir. 1987) (FCC must provide notice of the required content of applications that are reasonably comprehensible to persons acting in good faith). Furthermore, because an original signature on a commitment letter is not otherwise required under Subpart T of Part 90, we believe applicants might have  X3justifiably relied on the policy embodied in Section 1.52 of our Rules,?j  yO"ԍ 47 C.F.R.  1.52.? which provides that a copy or facsimile of a signature is acceptable, provided that the party filing the facsimile signature retains the originals. j 10. In addition, we agree with the Bureau's order below that our decision here does not mean that all common carrier precedent relating to the financial commitment standard is irrelevant. Because the rule in Subpart T of Part 90 setting forth the 220 MHz financial commitment standard parallels a similar standard in Part 22 of our rules, common carrier precedent interpreting analogous Part 22 rules will be pertinent in determining the sufficiency of a financial commitment in the private land mobile radio context. j 11. Finally, we conclude that the Jericho commitment letter provides the type of" ,N(N(ZZ)"  X3reasonable assurance of the availability of a loan that we are seeking from applicants. {Oy" jԍ Report and Order, 220 MHz Proceeding, 6 FCC Rcd 2356, 2363 (1991) ("These criteria should be sufficient  {OC" jto deter speculative applications."); see also, Fourth Report and Order, Amendment of the Commission's Rules for  {O " jRural Cellular Service,4 FCC Rcd 2542, 2547 (1988) ("It is our intention to limit outside sources of financing to  {O" jthose which have proven to be bona fide, commercially acceptable sources. Thus we expect to eliminate the filing of multitudes of applications financially guaranteed by those who prepared them."). There has been no showing that the Jericho financing contract was anything less than a commitment from a financially responsible institution meeting the criteria established in the 220 MHz proceeding. Petitioners assert that we should not take Global and its lender's representations  X3that a firm financial commitment existed at face value, but should weigh it separately.I yO "ԍ Application for Review at 910.I The Petitioners, however, fail to demonstrate that Global's analysis of the state law governing the  Xv3interpretation of the commitment letter is erroneous.Mv {O7"ԍ See footnote 11, supra.M  X_3 j  X13  Conclusion ă  X 3j 12. For the above reasons, IT IS HEREBY ORDERED THAT the Application for Review filed by National Communications Group, Capital Communications Group, Columbia Communications Group, Lonesome Dove Communications Group, AllAmerican  X 3Communications Partners, and Shiner Bock Group on October 17, 1994, IS DENIED.  j` `  hhFEDERAL COMMUNICATIONS COMMISSION j` `  hhWilliam F. Caton j` `  hhActing Secretary