Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) AIRTOUCH PAGING, INC. ) ) File No. 0000002165 For Consent to Partial Assignment of Station ) KCC485 to Schuylkill Mobile Fone, Inc. ) ) ORDER Adopted: June 16, 1999 Released: June 16, 1999 By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau: 1. We have before us an application seeking Commission consent for a partial assignment of a paging and radiotelephone service license, Station KCC485 in New Haven, Connecticut from AirTouch Paging, Inc. (AirTouch) to Schuylkill Mobile Fone, Inc. (SMFI). An informal petition to deny this assignment application was filed by Karl A. Rinker d/b/a Rinkers Communications (Rinker). For the reasons discussed below, we deny the petition and grant the partial assignment application. 2. Rinker's petition is based on his claim to certain rights relating to an intercarrier agreement executed in 1994 between Rinker and AirTouch's predecessor-in-interest for Station KCC485, Henry Zachs d/b/a Massachusetts-Connecticut Mobile Telephone Company (Zachs). The intercarrier agreement with Zachs purports to give Rinker an option to "incorporate Zach's transmitter . . . into Rinker's system." Rinker claims he has been unable to enforce this option because he has been unsuccessful in determining who the actual owner of Station KCC485 is, and argues that assignment of the frequencies in question to SMFI would further frustrate his ability to enforce the option. Rinker also claims that AirTouch reneged on an agreement to transfer Station KCC485 to him, and initially refused to give him information about this subsequent assignment of the license from AirTouch to SMFI. Additionally, Rinker argues that AirTouch partially assigned Station KCC485 to SMFI prior to receiving authorization from the Commission and that AirTouch engaged in license trafficking. Finally, Rinker contends that the Commission failed to comply with the Paperwork Reduction Act (PRA) by not getting the proper approval for the petition to deny rule applicable to this assignment application. 3. We conclude that Rinker has not raised any substantial or material questions of fact that would preclude us from granting AirTouch's partial assignment application. Rinker attempts to support his contention that AirTouch has already assigned the license to SMFI without Commission consent by stating that (1) AirTouch and SMFI entered into a contract for sale and (2) AirTouch told him to contact SMFI when he inquired about his possible rights under the intercarrier agreement during the pendency of this assignment application. Allegations of a premature or unauthorized assignment must be supported by facts demonstrating a change in the de facto control of the license. The mere existence of a contract for sale does not indicate that the license was assigned to SMFI prior to obtaining Commission consent. Indeed, applicants must execute a contract to effectuate the assignment of a license, but it is not until consummation of the contract that control passes from one party to another. Furthermore, AirTouch and SMFI explain that Airtouch informed Rinker that he should confer with SMFI regarding his rights under the intercarrier agreement because SMFI had a potential future interest in the frequencies in question. Rinker has not shown that this explanation is unreasonable. Because Rinker fails to provide information to support his assertion that SMFI was in de facto control of Station KCC485 prior to Commission action on this application, we find that Rinker fails to raise any substantial or material questions of fact. 4. Rinker also fails to provide sufficient information to preclude us from granting AirTouch's assignment application based on his allegation that AirTouch engaged in license trafficking. Under the Commission's rules, trafficking consists of "obtaining or attempting to obtain an authorization for the principal purpose of speculation or profitable resale of the authorization rather than for the provision of telecommunication services to the public or for the licensee's own private use." Rinker argues that AirTouch is engaged in trafficking the authorization for Station KCC485 because the license "is being bought and sold by multiple parties even before the first transaction . . . has been approved by the Commission." Rinker argues that SMFI's contract to sell the 152.03 MHz frequency with a third party entered into six months before AirTouch agreed to sell the frequency to SMFI is evidence that AirTouch was engaged in license trafficking. SMFI argues that this transaction is part of a larger transaction to increase SMFI's coverage, and possibly, the coverage of a third party. SMFI states that the contract was not entered into with the intent of profitable resale or speculation. Rinker has not shown that this explanation is unreasonable. Furthermore, we agree with AirTouch that Rinker offers no evidence that AirTouch was even aware that the frequencies in question were part of another transaction between SMFI and other parties. 5. The only possible question of fact raised by Rinker's petition is whether Rinker has a right under the intercarrier agreement to use the frequencies in question. AirTouch and SMFI argue that this is a private contractual dispute that, even if enforceable, is an improper premise for a petition to deny an assignment application. We agree that Rinker's claim from the intercarrier agreement is a contractual matter between private parties that should be resolved in state court. The Commission has previously determined that it is not the proper forum for the adjudication of private contractual disputes. The relevant issue before us here is whether there is any reason that allowing AirTouch to assign the frequencies in question to SMFI would be inconsistent with the public interest. We find that Rinker has presented no public interest reason for denying the assignment application. 6. Consistent with previous decisions, we stress that our action here does not foreclose any relief to which Rinker might ultimately be entitled based on the outcome of any subsequent civil litigation. This decision does not evaluate Rinker's rights in the frequencies in question, but merely approves a change in ownership of the frequencies. Thus, Rinker remains free to pursue in state court appropriate remedies for any contractual injury he may have suffered. 7. Rinker also argues that section 22.130, the petition to deny rule applicable to this application, is an invalid information collection because it fails to display a valid Office of Management and Budget (OMB) control number under the PRA. We disagree. As SMFI noted, section 22.130 was included in the package of information collections approved by OMB under Control No. 3060-0508 through January 31, 2001. Notice of OMB approval was published in the Federal Register, and approval for the Part 22 rules is included in the compendium of approved information collections annually published in our rules. 8. Rinker further argues that the OMB control number is not appropriately displayed as required by OMB rules. However, the OMB rule specifically provides that the control number is adequately displayed if a separate notice announcing the OMB approval of the collection of information is published in the Federal Register, as was the case here. Alternatively, OMB rules also provide that when a collection of information is published in a regulation contained in the Code of Federal Regulations (CFR), placement of the control number in a table or codified section of the CFR adequately displays the number. This is precisely what section 0.408 of the Commission's rules does. There is no requirement that each rule containing an information collection be listed individually, as Rinker claims. Indeed, section 0.408 has been used by the Commission for many years with OMB's full knowledge. Finally, the title for the information collection which was given OMB Control Number 3060-0508, "Rewrite and Update of Part 22 of the Public Mobile Service Rules, CC Docket 92-115," was proposed by the Commission in its PRA submission and approved by OMB. It is simply the title of the group of information collections contained in the Part 22 rewrite. 9. Having reviewed the pleadings filed in this matter, we conclude that grant of the above captioned application to assign frequencies 152.03 MHz and 152.12 MHz at Station KCC485, New Haven, Connecticut from AirTouch to SMFI will serve the public interest, convenience, and necessity. We find no substantial and material questions of fact regarding AirTouch's qualifications to be an assignor or SMFI's qualifications to be a licensee. Accordingly, we deny Rinker's informal petition to deny and grant the partial assignment application. 10. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309(d), and sections 0.331 and 22.132(b) of the Commission's rules, 47 C.F.R.  0.331, 22.132(b), the Informal Petition to Deny filed by Karl A. Rinker d/b/a Rinkers Communications on March 10, 1999, IS HEREBY DENIED. 11. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and 310(d) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 310(d), and sections 0.331 and 22.137 of the Commission's rules, 47 C.F.R.  0.331, 22.137, the above-captioned application for partial assignment from AirTouch Paging, Inc. to Schuylkill Mobile Fone, Inc. filed on September 16, 1998, IS HEREBY GRANTED. FEDERAL COMMUNICATIONS COMMISSION Paul D'Ari Chief, Policy and Rules Branch Commercial Wireless Division Wireless Telecommunications Bureau