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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 re Application o f ) Los Angeles Cellular Telephone Company) ) For Renewal of ) Domestic Public Cellular Radio ) File No. 05166-CL-MR-95 Telecommunications Service Station ) License KNKA351 ) For Frequency Block A ) in the Los Angeles, California ) Metropolitan Service Area ) ORDER Adopted: February 27, 1998 Released: February 27, 1998 By the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau: I. Introduction 1. In this Order, we address a petition to deny filed by Pacific West Cellular ("Pacific West") on November 13, 1996, against the license renewal application of Los Angeles Cellular Telephone Company ("L.A. Cellular") for Station KNKA351 to provide Domestic Public Cellular Radio Telecommunications Service for frequency block A in the Los Angeles, California, Metropolitan Service Area ("MSA"). Pacific West requests that if we do not dismiss or deny L.A. Cellular's renewal application, we grant the application subject to a number of conditions. Also before us are (1) a motion by L.A. Cellular to strike Pacific West's reply or, in the alternative, for authorization to file a surreply, with a surreply attached; and (2) a motion for leave to file a supplement filed by Pacific West. For the reasons discussed below, we grant L.A. Cellular's renewal application and deny Pacific West's Petition. We also dismiss L.A. Cellular's Motion to Strike and Pacific West's Motion for Leave as moot. II. Background 2. L.A. Cellular is the A block licensee providing cellular service to Los Angeles, California. The Commission accepted its license renewal application for filing on October 15, 1996. In its Petition, Pacific West states that it was appointed an exclusive agent of L.A. Cellular to market cellular telephone equipment in February 1991. According to Pacific West, it filed a suit against L.A. Cellular in California state court in May 1994 along with eight other plaintiffs, alleging violations of the California Business and Professional Code. Pacific West alleges that L.A. Cellular engaged in such illegal activities as conspiracy to sell cellular equipment below cost, conspiracy to fix prices for cellular service, fraud, and intentional interference with economic relationships. Pacific West requests that we impose certain conditions on L.A. Cellular in the event we grant L.A. Cellular's renewal, including a requirement that L.A. Cellular refrain from competing with its agents. 3. L.A. Cellular filed an Opposition on November 25, 1996, charging that Pacific West had failed to establish standing and had not alleged any facts demonstrating that L.A. Cellular is unqualified to be a Commission licensee. According to L.A. Cellular, Pacific West's allegations involve contractual provisions and the relationship between L.A. cellular and its sales agents. The Commission, according to L.A. Cellular, has long held that private disputes between parties are beyond its jurisdiction and should be resolved by local courts of competent jurisdiction. In its reply, Pacific West contends that L.A. Cellular's Opposition fails to provide any defenses against its allegations. Pacific West also supplies exhibits, including newspaper articles concerning litigation involving L.A. Cellular, sales invoices, letters, and documents from state court proceedings, which it claims support its allegations against L.A. Cellular. Pacific West also alleges that L.A. Cellular's customer service is not comparable to that of the competing cellular carrier in the Los Angeles MSA and that L.A. Cellular has shown a disregard for the public interest. L.A. Cellular filed its Motion to Strike on December 24, 1996, charging, inter alia, that Pacific West's reply is procedurally infirm because it is unsigned and presents material that should have been submitted with the original petition. 4. In its Motion for Leave, filed on December 8, 1997, Pacific West claims that, since the filing of its Petition, L.A. Cellular has continued to engage in misconduct. According to Pacific West, L.A. Cellular has, for example, intentionally blocked 911 calls and signed customers to long-term contracts without their knowledge. Pacific West cites as evidence of L.A. Cellular's alleged misconduct the filing of a class action lawsuit by cellular consumers against L.A. Cellular alleging price fixing. Although Pacific West has not made a formal request for an oral hearing, it states that the allegations in its motion would be substantiated at an open hearing before the Commission. Since the filing of its Motion for Leave, Pacific West has filed a number of letters with the Commission in which it discusses other pending litigation involving L.A. Cellular and to which it attaches various court filings and transcripts. In its most recent letter, Pacific West requests that we defer a decision in this case until the California Supreme Court has ruled on a case in which L.A. Cellular is a defendant. III. Discussion 5. L.A. Cellular contends that Pacific West's status as a plaintiff in a lawsuit against L.A. Cellular is not sufficient to confer standing in this proceeding. Section 309(d)(1) of the Communications Act of 1934, as amended, bestows standing on any party in interest so long as that party pleads "specific allegations of fact sufficient to show that the petitioner is a party in interest. . . ." To establish standing, the petitioner must allege sufficient facts to demonstrate that a grant of the subject application would cause the petitioner to suffer a direct injury. The petition must further demonstrate a causal link between the claimed injury and the challenged action. Pacific West's pleadings state that it has a business relationship with L.A. Cellular and that it has been injured by L.A. Cellular's business practices. Pacific West also claims it is challenging L.A. Cellular's application because the cellular carrier has provided inferior customer service. We do not believe that Pacific West has shown how grant of L.A. Cellular's renewal application would cause it direct injury. To the extent that Pacific West claims to have been injured by L.A. Cellular's business practices, it can seek redress for such injuries in court, and its rights to do so are not affected by our action here. Moreover, to the extent that Pacific West bases its Petition on allegations regarding the quality of L.A. Cellular's service, it has presented no facts or affidavits that would establish its standing to represent cellular consumers or the public as a whole. However, we find that we need not resolve the issue of whether Pacific West has standing in this proceeding, because even if Pacific West does have standing, it has not demonstrated that the grant of L.A. Cellular's application would be inconsistent with the public interest. 6. Under Section 309(d)(1) of the Communications 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 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 grant of the application would be in the public interest, the Commission shall deny the petition. 7. Pacific West has failed to submit any affidavits of persons with personal knowledge of the facts alleged, as required under the statute. Therefore, based on the record before us, we find that Pacific West has failed to raise substantial and material questions of fact with respect to whether the renewal of L.A. Cellular's application would be consistent with the public interest. In its Petition, Pacific West alleges that L.A. Cellular has engaged in illegal practices, and it provides information regarding a lawsuit, since settled, that it brought against L.A. Cellular. These allegations are insufficient to raise an issue of fact in this proceeding. First, the Commission has repeatedly held that private disputes between licensees and other parties should be resolved by courts of competent jurisdiction, not the Commission. Second, 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. In this case, Pacific West has presented no judgment by any court or government agency that L.A. Cellular has in fact acted illegally or engaged in any conduct that would raise such an issue of fact in this proceeding. 8. With respect to the quality of service L.A. Cellular offers to its customers, Pacific West again fails to provide facts supported by affidavits to show that renewal of L.A. Cellular's license is inconsistent with the public interest. Its general allegation that the level of service L.A. Cellular provides to its subscribers is not comparable with that offered by its competitor in the market is not sufficient to meet its burden under section 309(d). We also note that to obtain an expectancy of renewal, an applicant for renewal of a cellular license is not required to demonstrate that it provides its subscribers with services that are comparable to those provided by its competitors. Thus, Pacific West fails to demonstrate that a grant of L.A. Cellular's renewal application would be inconsistent with the public interest, convenience, and necessity. 9. We also find that Pacific West has supplied no new information in its Motion for Leave that would cause us to reach a different conclusion. The fact that there is additional pending litigation against L.A. Cellular, or that L.A. Cellular has reached a settlement with parties having filed suit against it, does not, without more, warrant a hearing or denial of its application. Should such pending litigation ultimately result in a judgment that L.A. Cellular has engaged in misconduct, the Commission can then assess the significance of that judicial determination with respect to L.A. Cellular's qualifications to be a licensee and take whatever action is appropriate at that time. For this reason, we also find that there is no reason to delay our decision in this case, as Pacific West has requested. IV. Conclusion 10. Having carefully considered the record before us, we conclude that a grant of L.A. Cellular's application will serve the public interest, convenience, and necessity. We also conclude that Pacific West's Petition fails to meet the requirements of 47 U.S.C.  309(d) and therefore must be denied. Because Pacific West presents no facts showing that renewal of L.A. Cellular's license is inconsistent with the public interest, we need not consider Pacific West's alternate request for the imposition of conditions in the event we grant L.A. Cellular's license renewal application. Because we find that Pacific West has failed to meet its burden under 47 U.S.C.  309(d), we dismiss its Motion for Leave as moot. We also dismiss L.A. Cellular's Motion to Strike as moot. V. Ordering Clauses 11. Accordingly, IT IS ORDERED THAT, pursuant to section 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d), and section 22.130 of the Commission's rules, 47 C.F.R.  22.130, the Petition to Deny or, in the Alternative, to Condition Grant filed by Pacific West Cellular on November 13, 1996, IS DENIED. 12. IT IS FURTHER ORDERED THAT, pursuant to section 309(a) of the Communications Act, as amended, 47 C.F.R.  309(a), the application for renewal of license filed by Los Angeles Cellular Telephone Company on September 27, 1996, IS GRANTED. 13. IT IS FURTHER ORDERED THAT, pursuant to section 1.45(c) of the Commission's rules, 47 C.F.R.  1.45(c), the Motion of Los Angeles Cellular Telephone Company to Strike Unauthorized Materials filed by Pacific West Cellular or, in the Alternative, for Authorization to File Surreply filed on December 24, 1996, IS DISMISSED AS MOOT. 14. IT IS FURTHER ORDERED THAT, pursuant to section 1.45(c) of the Commission's rules, 47 C.F.R.  1.45(c), the Motion for Leave to File Supplement filed by Pacific West Cellular on December 8, 1997, IS DISMISSED AS MOOT. 15. This action is taken pursuant to the authority delegated in section 0.331 of the Commission's rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION David L. Furth Chief, Commercial Wireless Division Wireless Telecommunications Bureau