Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-04-IH-0116
Weblink Wireless I, L.P. ) NAL/Acct. No. 200432080088
) FRN No.: 0008554198
)
Metrocall Holdings, Inc. ) NAL/Acct. No.: 200432080089
) FRN No.: 0003737210
ORDER
Adopted: April 23, 2004 Released: April 28,
2004
By the Chief, Enforcement Bureau
1. In this Order, we adopt a Consent Decree
terminating an investigation by the Enforcement Bureau
(the ``Bureau'') into the possible violation by WebLink
Wireless I, L.P. (``WebLink'') and Metrocall Holdings,
Inc. (``Metrocall'') of Section 310(d) of the
Communications Act of 1934, as amended,1 and related
provisions of the Commission's rules in connection with
the unauthorized transfer of control of certain Commercial
Mobile Radio Service facilities by WebLink to Metrocall.
2. The Bureau, WebLink and Metrocall have negotiated
the terms of the Consent Decree, a copy of which is
attached hereto and incorporated by reference herein.
3. We have reviewed the terms of the Consent Decree
and evaluated the facts before us. We believe that the
public interest would be served by approving the Consent
Decree and terminating the investigation.
4. Based on the record before us, and in the absence
of material new evidence relating to this matter, we
conclude that there are no substantial or material
questions of fact as to whether WebLink and Metrocall each
possess the basic qualifications to hold or obtain any
Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to
Sections 4(i), 4(j), and 503(b) of the Communications Act
of 1934, as amended,2 and the authority delegated by
sections 0.111 and 0.311 of the Commission's Rules,3 the
attached Consent Decree IS ADOPTED.
6. IT IS FURTHER ORDERED that the referenced
investigation IS TERMINATED.
7. IT IS FURTHER ORDERED that copies of this Order
shall be sent by first class mail and certified mail,
return receipt requested, to WebLink Wireless I, L.P.,
3333 Lee Parkway, 12th Floor, Dallas, Texas 75219, with a
copy to its counsel, Audrey P. Rasmussen, Esquire, Hall,
Estill, Hardwick, Gable, Golden & Nelson, PC, 1120 20th
Street, Suite 700 North, Washington, D.C. 20036, and to
Metrocall Holdings, Inc., 6677 Richmond Highway,
Alexandria, Virginia 22306, with a copy to its counsel,
Frederick M. Joyce, Esquire, Venable LLP, 575 7th Street,
N.W., Washington, D.C. 20004-1601.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau CONSENT DECREE
8. The Enforcement Bureau of the Federal
Communications Commission, and WebLink Wireless I, L.P.
and Metrocall Holdings, Inc., by their respective
authorized representatives and on behalf of their
respective subsidiaries, hereby enter into this Consent
Decree for the purpose of resolving and terminating the
Enforcement Bureau's investigation into possible
violations of section 310(d) of the Communications Act of
1934, as amended, 47 U.S.C. 310(d), and related provisions
of the Commission's rules, in connection with an alleged
unauthorized transfer of control by WebLink to Metrocall
of certain Commercial Mobile Radio Service licensed
facilities.
9. For the purposes of this Consent Decree, the
following definitions apply:
a) The ``Act'' means the Communications Act of
1934, as amended, 47 U.S.C. §§ 151 et seq.;
b) ``Adopting Order'' or ``Order'' means an order
of the Enforcement Bureau adopting this Consent
Decree;
c) ``Applications'' means the FCC Form 602
applications filed on November 25, 2003, by
PageMart PCS Holdings LLC and Metrocall USA,
Inc., and by PageMart PCS II Holdings LLC and
Metrocall USA, Inc. (ULS File Nos. 0001525608
and 0001525609).
d) The ``Bureau'' means the Enforcement Bureau of
the Federal Communications Commission;
e) The ``Commission'' or ``FCC'' means the
Federal Communications Commission;
f) ``Effective Date'' means the date on which
the Bureau releases the Adopting Order;
g) ''Metrocall'' means Metrocall Holdings, Inc.
and its parents, subsidiaries, divisions and
affiliates, and each of their respective
officers, directors, employees, agents,
representatives, or any other person acting or
purporting to act on behalf of Metrocall, or its
successors or assigns.
h) ``Parties'' means WebLink, Metrocall and the
Bureau;
i) ``Rules'' means the Commission's
regulations set forth in Title 47 of the Code of
Federal Regulations;
j) ``WebLink'' means WebLink Wireless I, L.P.
and its parents, subsidiaries, divisions and
affiliates, and each of their respective
officers, directors, employees, agents,
representatives, or any other person acting or
purporting to act on behalf of WebLink, or its
successors or assigns; and
k) ``WTB'' means the Wireless Telecommunications
Bureau of the FCC.
I. Background
10. By Asset Purchase Agreement dated as of
November 18, 2003, WebLink Wireless, Inc. and Metrocall
agreed to a transaction whereby Metrocall purchased
WebLink's commercial wireless messaging business (the
"Business"). The Agreement provides that, as of its date,
Metrocall took possession and control of virtually all of
WebLink's assets, including accounts receivable,
inventory, credits and prepaid expenses or obligations,
real property leases and all related improvements,
fixtures, furniture, equipment, intellectual property,
contract rights and all books, records, files or papers
used or to be used in WebLink's Business. The parties
concurrently entered into a Management and Spectrum Lease
Agreement whereby WebLink agreed to lease to Metrocall
``spectrum airtime rights'' over the Commission-authorized
facilities, pending Commission approval of the assignment
to Metrocall of the authorizations for those facilities.
On November 25, 2003, PageMart PCS Holdings, LLC and
PageMart II Holdings, LLC, subsidiaries of WebLink, and
Metrocall USA, Inc., a subsidiary of Metrocall, filed the
Applications seeking such approval of the assignment of
WebLink's Narrowband PCS, Private Carrier Paging, and
microwave licenses to Metrocall USA, Inc. As a result of
its concern that this transaction may have resulted in the
unauthorized transfer of control of WebLink's Commission-
authorized facilities used in the Business, the WTB
referred the matter to the Bureau for investigation and
possible enforcement action.
II. Terms of Settlement
11. In accordance with the terms of this Consent
Decree, the Parties agree to the following terms,
conditions, and procedures.
12. The Parties agree that the provisions of this
Consent Decree shall be subject to final approval by the
Bureau by incorporation of such provisions by reference in
an Adopting Order.
13. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau
releases the Adopting Order. Upon such release, the
Adopting Order and this Consent Decree shall have the same
force and effect as any other orders of the Commission
and any violation of the terms of this Consent Decree
shall constitute a separate violation of a Commission
order, entitling the Commission to exercise any rights
and remedies attendant to the enforcement of a Commission
order.
14. WebLink and Metrocall each agree that the
Bureau has jurisdiction over the matters that are the
subject of this Consent Decree and the authority to enter
into and adopt this Consent Decree.
15. The Parties agree that this Consent Decree
does not constitute either an adjudication on the merits
or a factual or legal finding or determination regarding
compliance or noncompliance with the requirements of the
Act or the Commission's rules and orders. The Parties
agree that this Consent Decree is for settlement purposes
only and that, by agreeing to this Consent Decree, WebLink
and Metrocall do not admit or deny liability for violating
any statute, regulation, or rule in connection with the
matters that are the subject of this Consent Decree.
16. The Parties agree and acknowledge that this
Consent Decree shall constitute a final settlement between
the Parties concerning the alleged violations by WebLink
and Metrocall of the Act and the Commission's rules
discussed herein.
17. In express reliance upon the covenants and
representations in this Consent Decree, the Bureau agrees
to terminate its investigation of WebLink and Metrocall
without any finding of liability on their part. This
Consent Decree shall constitute a final settlement between
the Parties of that investigation.
18. In consideration of the Bureau's termination
of its investigation into these matters, WebLink and
Metrocall each agree to the terms set forth herein.
19. Within five (5) business days of the release
of the Adopting Order, WebLink and Metrocall shall each
make a voluntary contribution to the United States
Treasury, without protest or recourse, by wire or by
mailing a check or similar instrument drawn to the order
of the Federal Communications Commission, in the amount of
Twenty-Five Thousand Dollars ($25,000.00), to be sent to
the attention of the Federal Communications Commission,
Forfeiture Collection Section, Finance Branch, P.O. Box
73482, Chicago, Illinois, 60673-7482. The check, wire
transfer or money order shall refer to Acct. No.
200432080088 and FRN No. 0008554198 (by WebLink) and Acct.
No. 200432080089 and FRN No. 0003737210 (by Metrocall).
Any wire transfer must be made in accordance with
Commission procedures for wire transfers.
20. Within thirty (30) days of the release of the
Adopting Order, and for a period of two (2) years
following its release, Metrocall will adopt and implement
a company-wide compliance plan to require periodic
education of all employees concerning the Commission's
spectrum leasing rules and the requirements of the Act and
the Rules regarding the need for prior approval of
assignments of Commission authorizations and the transfer
of control of the holders of such authorizations.
Metrocall will ensure that its obligation under this
paragraph will continue to bind any assignee and/or
transferee regarding any of the licenses specified in the
Applications.
21. WebLink and Metrocall each agree that they
are required to comply with each individual condition of
this Consent Decree. Each specific condition is a
separate condition of the Consent Decree as approved. To
the extent that either WebLink or Metrocall fails to
satisfy any condition or Commission rule, in the absence
of Commission alteration of the condition or rule, such
entity will be deemed noncompliant and may be subject to
possible enforcement action, including, but not limited
to, revocation of the relief, designation of the matter
for hearing, letters of admonishment or forfeitures.
22. The Bureau agrees that, in the absence of
material new evidence, it will not, on its own motion,
initiate or recommend to the Commission, any new
proceeding, formal or informal, regarding the conduct of
WebLink or Metrocall that is the subject of this Consent
Decree. The Bureau further agrees that, in the absence of
material new evidence related to this matter, it will not
use the facts developed in this proceeding through the
Effective Date of this Consent Decree or the existence of
this Consent Decree to initiate on its own motion, or
recommend to the Commission, any proceeding, formal or
informal, or take any action on its own motion against
WebLink or Metrocall with respect to their basic
qualifications to be or continue to be a Commission
licensee. Nothing in this Consent Decree shall prevent
the Bureau from instituting, or recommending to the
Commission, new investigations or enforcement proceedings
against WebLink or Metrocall, in the event of any alleged
future misconduct for violation of this Consent Decree or
for violation of the Act or the Commission's Rules as
consistent with the provisions of this Consent Decree.
23. WebLink and Metrocall each waive any and all
rights they may have to seek administrative or judicial
reconsideration, review, appeal or stay, or to otherwise
challenge or contest the validity of this Consent Decree
and the Adopting Order, provided the Adopting Order adopts
the Consent Decree without change, addition or
modification.
24. WebLink and Metrocall each agree to waive any
claims they may otherwise have under the Equal Access to
Justice Act, 5 U.S.C. § 504 and 47 C.F.R. § 1.1501 et
seq., relating to the matters discussed in this Consent
Decree.
25. If any Party (or the United States on behalf
of the FCC) brings a judicial action to enforce the terms
of the Adopting Order, WebLink, Metrocall and the FCC
shall not contest the continuing validity of the Consent
Decree or Adopting Order.
26. In the event that this Consent Decree is
rendered invalid by any court of competent jurisdiction,
this Consent Decree shall become null and void and may not
be used in any manner in any legal proceeding.
27. This Consent Decree may be signed in
counterparts.
For the Enforcement Bureau
________________________________
David H. Solomon
Chief, Enforcement Bureau
For WebLink Wireless I, L.P.
___________________________________
Kelly Prentiss
Chief Financial Officer
For Metrocall Holdings, Inc.
___________________________________
Stan Sech
Chief Operating Officer
_________________________
1 47 U.S.C. § 310(d).
2 47 U.S.C. §§ 154(i), 154(j), 503(b).
3 47 C.F.R. §§ 0.111, 0.311.