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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 ) ) Application for Renewal of Cellular ) License of Vanguard Binghamton, Inc. ) File No. 04115-CL-MR-98 Station KNKA694 ) ) ORDER Adopted: May 18, 1999 Released: May 18, 1999 By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau: I. Introduction 1. In this Order, we address Marcus S. Payne's ("Payne") Petition to Deny ("Petition") the renewal application of Vanguard Binghamton, Inc. ("Vanguard"). Vanguard is the licensee of Station KNKA694 for the Elmira, New York, MSA 284A. For the reasons discussed below, we grant Vanguard's renewal application and deny Payne's petition. II. Background 2. Payne alleges in his petition that he was dismissed from his job with the Vanguard Cellular Financial Corp. ("VCFC"), the parent company of Vanguard, on the basis of racial discrimination. Payne further alleges that during the ten year period from October 1988 through October 1998, "licensee officials engaged in a systematic, intentional, and overt pattern of illegal disparate practice of discrimination against African-Americans. . . ." In addition, Payne states that he filed complaints with various state and federal agencies concerning the alleged discrimination. 3. In its Opposition, Vanguard points out that Payne was never employed by Vanguard. Furthermore, Vanguard states that the petition fails to: (1) make specific factual allegations; (2) state that Payne is a party in interest; or (3) indicate how the public interest will not be served by granting Vanguard's renewal application. Finally, Vanguard observes that Mr. Payne has failed to submit an affidavit to verify his allegations and has, therefore, failed to satisfy the substantive requirements of the Communications Act of 1934, as amended ("The Act") or the Commission's rules. III. Discussion 4. Under section 309(d)(1) of the Act, parties filing petitions to deny must make specific allegations that a grant of the application would be prima facie inconsistent with the public interest, convenience, and necessity. Except where official notice may be taken, such allegations must be supported by affidavits of persons with personal knowledge of of the facts alleged. Section 309(d)(2) further states that if the pleadings and affidavits fail to raise substantial and material questions of fact and the Commission concludes that a grant of the application would be in the public interest, the Commission shall deny the petition. 5. Payne alleges that VCFC engaged in employment discrimination and other related illegal practices against him and he refers to a number of ongoing proceedings he has initiated at the state and federal level concerning the alleged employment discrimination. These allegations, however, are insufficient to raise an issue of fact in this proceeding. First, Payne has failed to submit any affidavits of persons with personal knowledge of the facts alleged, as required under Section 309(d)(2). Second, the Commission has repeatedly held that private disputes between licensees and other parties should be resolved by courts - or in this case agencies - of competent jurisdiction, not the Commission. Third, the fact that an applicant is the subject of litigation is not sufficient to raise an issue regarding the applicant's character unless there has been an adjudicated finding of misconduct by a court or government agency. We note that there is nothing in the record that indicates that any outstanding proceedings involving Payne have been decided in his favor. We further note that Payne's petition contains no factual allegations of employment discrimination by Vanguard and VCFC in other forums. If there is a final determination in other forums that VCFC has engaged in any misconduct, the Commission may then assess the significance of the findings with respect to VCFC's qualifications to be a licensee. For this reason, we find that there is no reason to delay our decision in this matter. We therefore dismiss Payne's petition and grant Vanguard Binghamton, Inc's renewal application. IV. Ordering Clauses 6. Accordingly, IT IS ORDERED THAT, pursuant to Section 309(d) of the Act of 1934, as amended, 47 U.S.C.  309(d), and Sections 0.331 and 22.130 of the Commission's rules, 47 C.F.R.  0.331 and 22.130, the Petition to Deny filed by Marcus S. Payne on November 10, 1998, IS DENIED. 7. IT IS FURTHER ORDERED THAT, pursuant to Section 309(a) of the Communications Act, as amended, 47 U.S.C.  309(a), and Section 0.331 of the Commission's rules, 47 C.F.R.  0.331, the application for renewal of license for Station KNKA694 filed by Vanguard Binghamton, New York on October 1, 1998, IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION Paul D'Ari Chief, Policy and Rules Branch Commercial Wireless Division Wireless Telecommunications Bureau