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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                )
                                )
Twiggs County Cellular Partnership)
                                )
Macon-Warner Robins, Georgia    )
MSA Market No. 138(B)                                            )     File No. 10120-CL-P-138-B-93
                                )
Petition for Waiver             )
of Section 22.944(a)            )
of the Commission's Rules       )
                                 
                                 

                             ORDER


   Adopted:  June 18, 1999              Released:  June 18, 1999

By the Deputy Chief, Commercial Wireless Division, Wireless Telecommunications Bureau:

                         I.  INTRODUCTION

     1.  In this Order, we grant Twiggs County Cellular Partnership's ("Twiggs") application to provide 
cellular service to the unserved areas in the Macon-Warner Robins, Georgia, Metropolitan Statistical Area
("MSA"), Market No. 138(B).  Additionally, we grant Twiggs's petition ("Petition") to waive section 22.944
of the Commission's rules to permit a transfer of an interest in Twiggs's cellular application before the grant
of Twiggs' construction authorization. 

                        II.  BACKGROUND  

     2.   On April 7, 1993, Twiggs filed its original application to construct a cellular system in the above
unserved areas of MSA No. 138(B).  Twiggs and the thirty-seven other parties who had filed mutually
exclusive applications to serve MSA No. 138(B) reached a full market settlement on November 17, 1994 and
designated Twiggs as the surviving applicant.  Twiggs now seeks a waiver of section 22.944 because the
interest of one of the parties, Pendleton C. Waugh ("Waugh"), is now controlled by a court-appointed
bankruptcy trustee.  

     3.  When Twiggs and the other applicants agreed to the full market settlement, each of the thirty-eight
applicants accepted a 2.63% interest in the partnership in consideration of their participation in the settlement. 
On November 29, 1994, as part of the aforementioned full market settlement, Twiggs substituted its application
for the Fast Trac Cellular, L.C., ("Fast Trac") application and designated Twiggs as the surviving applicant
for the market.  

     4.  On January 25, 1995, Waugh pleaded guilty in the United States District Court for the Northern
District of Texas to conspiring to defraud the United States.  The court sentenced him to a twenty-one month
prison term and fined him $20,000.  Twiggs reported this fact to the Commission on March 8, 1995.  On
August 15, 1996, Waugh filed a voluntary petition for bankruptcy under Chapter 11 in the United States
Bankruptcy Court for the Northern District of Texas.  When Twiggs filed its Petition, it noted that by
operation of law, the Trustee in Bankruptcy ("Trustee") now owns and controls Waugh's interest in the
partnership.  Twiggs states that although this event was beyond its control, the Commission may view it as
an unauthorized transfer of control under section 22.944(a) of the Commission's rules, which prohibits the
transfer of any interest in a cellular application before the grant of a construction authorization.  Thus, to the
extent necessary, Twiggs seeks a waiver of section 22.944(a) of the Commission's rules to allow the continued
processing of its application for the unserved cellular area.

                         III.  DISCUSSION

     5.  Section 22.959 of the Commission's rules provides that the Commission shall process applications
for initial cellular systems under the rules that were in effect when the application was filed, unless the
Commission determines otherwise.  Since the parties filed their applications in 1993, we will apply the rules
in effect at that time.  Although no entity has objected to the grant of Twiggs's application, we must find that
a grant of the application would serve the public interest, convenience and necessity before we may grant the
application.  Accordingly, we must examine whether the transfer of Waugh's interest to the Trustee violates
section 22.944(a) of the Commission's rules. 

     6.  Transfers of interests in applications prior to grant of a construction authorization are prohibited
in order to prevent speculative activity which, among other things, delays service to the public.  When a
pending application is assigned or transferred prior to grant of the construction authorization, we must issue
a new public notice and restart the application processing cycle.  To avoid this situation, the Commission
amended its rules to prohibit the transfer of any interest in an MSA application prior to the grant of a
construction authorization.  An applicant seeking a waiver of a Commission rule faces a heavy burden.  The
applicant must demonstrate unique and compelling public interest reasons to justify a waiver of the
Commission's rules, and must also show that the underlying purpose of the rule will not be undermined by
granting the waiver.  

     7.  In support of its waiver request, Twiggs submits that the underlying purpose of the rules, to prevent
speculation which will hinder the rapid deployment of cellular service, will not be served by applying section
22.944(a) in this instance.  Twiggs maintains that it has always been ready to provide cellular service in the
market it seeks to serve.  According to Twiggs, the event responsible for the transfer of control of one
partner's 2.63% interest was an event that occurred by operation of law and was completely beyond its control. 
Twiggs further alleges that the event in question here is similar to the provision in section 22.944(a) that
permits transfers pursuant to a court-ordered decree granting a divorce or a spousal separation agreement. 
     
     8.  We find that Twiggs has met the burden for a waiver of section 22.944.  We have previously held
that waivers may be appropriate where the potential rule violation results from the decision of a state court. 
Consequently, we find that a waiver is justified in this instance because the situation at hand results from a
ruling by a United States bankruptcy court and no speculative activity is involved.  The partners concluded
the full market settlement in order to bring service to the public by eliminating all outstanding disputes among
the various applicants.  Following submission of the full market settlement, one of the thirty-eight partners,
Waugh, pleaded guilty to federal criminal charges and received a prison sentence.  After his release from
federal prison, Waugh filed a petition for bankruptcy.  The other partners could not prevent the removal of
Waugh from the partnership.  The Commission's rules in various services recognize bankruptcy as a factor in
granting amendments and transfers involving applications that it would not otherwise permit.  The transfer
of Waugh's interest is clearly not the result of speculative activity.    

     9.  Notwithstanding our decision to grant Twiggs's waiver request, we must resolve the issue of
whether Waugh's criminal conviction reflects adversely on the character qualifications of Twiggs to be a
Commission licensee.  The Commission's Character Policy Statement provides an analytical framework to use
in determining whether the public interest would be served by granting a particular application where an
applicant's character qualifications may be an issue.  The Commission has previously applied the character
qualifications expressed in the Character Policy Statement when evaluating the character qualifications of
prospective licensees for similar services.  

     10.  We must determine whether (1) Waugh's conduct raises a character issue, and (2) if we must
disqualify Twiggs based upon that conduct.  The Commission has stated that criminal convictions involving
false statements or dishonesty could be relevant to predicting the propensity of an applicant to deal truthfully
with the Commission.  Waugh pleaded guilty to conduct that involved attempts to commit fraud against the
United States.  We find that this conduct is precisely the type of conduct that, in a broadcast context, would
cause us concern.  However, in A.S.D. Answer Service, Inc, a common carrier case, the Commission allowed
the former chairman of a corporation to retain a 17% ownership interest in a common carrier licensee even
though he had apparently made misrepresentations to the Commission.  The Commission found that the
"totality of these circumstances [did not] leave questions about [the licensee's] character which [rose] to the
level necessary to [prohibit] the company from continuing as a Commission licensee," because a corporate
reorganization had eliminated the participation of the chairman and other wrongdoers in the management of
the corporation.  Waugh will not participate in the management of Twiggs.  

     11.  Waugh has no further participation in the partnership because the Trustee in Bankruptcy now
controls Waugh's interests.  We do not believe that Waugh's initial presence in the surviving applicant will
cause Twiggs to be less than candid in its dealings with the Commission.  Because we find Twiggs to be
otherwise qualified, we will grant its application.

                      IV.  ORDERING CLAUSES 
     
     12.  Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications Act of 1934, as
amended, 47 U.S.C.  154(i), and Sections 0.331, 22.19, and 22.959 of the Commission's Rules, 47 C.F.R.
 0.331, 22.19, and 22.959, that the Petition for Waiver filed by Twiggs County Cellular Partnership on July
22, 1997, IS GRANTED.

     13.  IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 309(a) of the Communications Act
of 1934, as amended, 47 U.S.C.  154(i) and 309(a), that the amended application filed on November 29,
1994, by Twiggs County Cellular Partnership to provide cellular service to the unserved area in the Macon-
Warner Robins, Georgia MSA Market 138(B) IS GRANTED.
     


                         FEDERAL COMMUNICATIONS COMMISSION




                         William W. Kunze
                         Deputy Chief, Commercial Wireless Division
                         Wireless Telecommunications Bureau