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                         Before the
              FEDERAL COMMUNICATIONS COMMISSION
                   Washington, D.C.  20554


In the Matter of                 )
                                )
C&W COMMUNICATIONS, INC.         )  File No. EB-02-IH-0643
                                )
Licensee of Private Land Mobile  )
Stations WNJB566 and KNBV420     )
                                )
STEVE GILL                       )
                                )
Licensee of Private Land Mobile  )
Station WNEC236                  )
                                )
RADIO SERVICE COMPANY            )  File No. EB-02-IH-0386
                                )
Licensee of Private Land Mobile  )
Stations WPBB209, WNXZ684, and   )
WNXZ686                          )
                                )  File No.  EB-02-IH-0681
FRESNO MOBILE RADIO, INC.        )
                                )
Licensee of Private Land Mobile  )
Stations WYY797, WYY798,         )
WYY799, KNDC491,                 )
and WNA511


                MEMORANDUM OPINION AND ORDER
Adopted:  March 17, 2004                     Released:  

March 18, 2004


By the Chief, Enforcement Bureau:

                       I. INTRODUCTION

1.   In this  Memorandum Opinion and Order,  we deny motions 
filed by Nextel Communications, Inc. and/or Nextel Partners, 
Inc.  (``Nextel'') seeking  revocation of  licenses held  by 
Private Land Mobile licensees  C&W Communications, Inc., and 
its owner, Steve Gill  (collectively ``C&W''); Radio Service 
Company (``Radio  Service''); and Fresno Mobile  Radio, Inc. 
(``Fresno'')  (collectively referred  to as  the ``Incumbent 
Licensees'').1   As  discussed  more fully  below,  we  find 
insufficient basis upon which to commence license revocation 
proceedings  against  the   Incumbent  Licensees  for  their 
alleged failure to  negotiate with Nextel in  good faith the 
relocation  of   their  respective  site-based   systems  to 
comparable spectrum in the 800 MHz band.2  

                       II. BACKGROUND

2.   In the mid-1990s, the  Commission determined that a new 
framework  for  the  licensing   of  800  MHz  licenses  was 
appropriate.3  The Commission recognized  that the advent of 
new technologies would permit licensees of wide area systems 
to  achieve greater  efficiencies  than licensees  operating 
small,  site-based systems.4   As a  result, the  Commission 
concluded  that  it was  in  the  public interest  to  allow 
licensees to  operate wide area systems  in certain Economic 
Areas (``EAs'') in the upper portion of the 800 MHz band and 
to relocate site-based  incumbents to comparable frequencies 
in  the  lower  portion  of  the 800  MHz  band.5   By  thus 
relocating  licensees  to  other  frequencies,  the  new  EA 
licensee  could  utilize  more  efficient  technologies  and 
provide wide  area service to more  customers in competition 
with PCS  and cellular providers.6  To  accomplish this, the 
Commission  established competitive  bidding rules  to award 
overlay licenses  and to provide procedures  for the auction 
winner  to   relocate  incumbent  licensees   to  comparable 
spectrum.   The Commission  determined that  it was  best to 
rely on market forces to  accomplish the relocation and only 
in instances where the parties  failed to reach an agreement 
and  the  EA  licensee   requested  intervention  would  the 
Commission   become    involved   and    order   involuntary 
relocation.7 

3.   Section 90.699 of the Commission's rules8 establishes a 
mechanism  whereby  an  EA  licensee  may  arrange  for  the 
relocation  of an  incumbent licensee's  site-based 800  MHz 
system operating  in the  upper 800  MHz band  to comparable 
spectrum  in  the  lower   800  MHz  band.   The  relocation 
procedures  consist  of  a  one-year  voluntary  negotiation 
period during  which the EA  licensee and the  incumbent may 
negotiate any mutually agreeable relocation arrangement.  If 
no agreement is reached by  the end of the voluntary period, 
a  one-year mandatory  negotiation period  commences, during 
which both the EA licensee  and the incumbent must negotiate 
in ``good faith.''  If no agreement is reached during either 
the  voluntary  or  mandatory negotiation  periods,  the  EA 
licensee   may  request   involuntary   relocation  of   the 
incumbent's system.9 

4.   In 1997,  Nextel purchased a  number of EA  licenses in 
the  upper  800 MHz  band  in  Auction No.  16,10  including 
licenses  for  channels  used by  the  Incumbent  Licensees.  
Nextel states that it timely  notified each of the Incumbent 
Licensees of its desire to relocate their respective systems 
to  comparable  frequencies.11   Nextel   and  each  of  the 
Incumbent Licensees engaged in  negotiations during both the 
voluntary and mandatory periods;12 however, the negotiations 
proved unsuccessful.  According to  Nextel, in each case, it 
requested technical information to  facilitate the making of 
proposals  and  received either  no  response  or less  than 
sufficient information.13   Nextel states that it  sent each 
of the  Incumbent Licensees a request  to meet face-to-face; 
however, none  met personally  with Nextel during  either of 
the negotiation periods.14  Nextel  claims that it made some 
relocation offers that went unanswered or that were rejected 
without   adequate  explanation.15    For  example,   Nextel 
maintains that Radio Service's  verbal rejections of certain 
of  its  offers  lacked substance.16   Nextel  asserts  that 
Fresno's  responses lacked  adequate  technical detail  that 
would have  helped ``to  elucidate possible issues  with the 
offer.''17  Nextel  also argues that C&W  erected roadblocks 
to   negotiations  by   making   unreasonable  demands   for 
warranties and assurances.18  Nextel  suggests that a desire 
for greenmail,  i.e. the  desire that Nextel  purchase their 
respective  systems   at  inflated  prices,   motivated  the 
Incumbent Licensees to stonewall relocation negotiations.19

5.   Each of  the Incumbent Licensees maintains  that, while 
it may have failed to  reach an agreement with Nextel, there 
was  no absence  of  ``good faith''  on  its part.20   Radio 
Service and Fresno state  that they rejected Nextel's offers 
without detailed  responses because Nextel's offers  to them 
did not provide for  a ``seamless'' transition, discussed in 
the rulemaking proceeding21 as a requirement for involuntary 
relocation.22  C&W asserts that  Nextel ignored its repeated 
requests for assurances for, among  other things, a plan for 
seamless transition.23   We note that each  of the Incumbent 
Licensees retained counsel to negotiate on its behalf.24  We 
also note that many of the details regarding the adequacy of 
the Incumbent  Licensees' responses  are disputed  issues of 
fact. 

                       III. DISCUSSION

6.   Under section 312(a) of the Act, ``[t]he Commission may 
revoke any station license or  construction permit . . . for 
willful or repeated violation of.  . .any rule or regulation 
of the  Commission authorized by  this Act  . . .  .''25  We 
note that  the Commission's discretion under  section 312(a) 
to  institute revocation  proceedings  is  very broad.   The 
Commission   has   held   that  initiation   of   revocation 
proceedings through an order to  show cause, as permitted by 
section  312(a),  ``is, of  course,  wholly  subject to  our 
discretion. . . . Pursuant  to the legislative intent behind 
47  U.S.C.  § 312   .  .  .  the   Commission  has  complete 
discretion, after  considering allegations  of noncompliance 
with our rules, even prima  facie evidence of violations, to 
determine  not to issue  orders to  show cause  . .  . .''26  
Indeed,  within its  ``broad  discretion in  this area,  the 
Commission can refuse to issue  an order to show cause based 
upon the petition of a third  party even if it is determined 
that a violation of Commission rules exists.''27

7.   Applying this  discretionary standard  to the  facts at 
issue,  we   find  that   the  alleged  misconduct   is  not 
sufficiently  egregious  to   warrant  the  commencement  of 
license revocation proceedings against  any of the Incumbent 
Licensees.   Section   90.699  of  the   Commission's  rules 
requires  an  EA  licensee  and  an  incumbent  licensee  to 
negotiate  in ``good  faith'' during  the mandatory  period.  
The  Commission  has  determined   that  ``good  faith''  is 
determined on a case-by-case  basis.28  In these cases, each 
of the  Incumbent Licensees engaged counsel  to negotiate on 
their  behalf.   Nextel  appears   to  have  had  sufficient 
information  to  make  offers to  ``retune''  the  Incumbent 
Licensees'  systems, and  the  Incumbent Licensees  rejected 
such offers  as not  sufficiently ``seamless.''  Taken  as a 
whole,  we do  not find  that the  conduct of  the Incumbent 
Licensees was  so grave  as to  raise questions  about their 
respective   basic  qualifications   to  remain   Commission 
licensees.29  

8.   Nextel  also claims,  as  a further  basis for  seeking 
revocation  of licenses,  that  two of  the three  Incumbent 
Licensees failed  to negotiate  in ``good faith''  after the 
close  of the  mandatory negotiation  period.30  We  find no 
merit to such allegations.   The Commission's rules place no 
obligation on  incumbent licensees  to negotiate  beyond the 
one-year mandatory negotiation period.31  
9.   Notwithstanding our decision not to commence revocation 
proceedings, we are troubled by the failure of the Incumbent 
Licensees to  meet face-to-face with Nextel  and to promptly 
provide technical  information and substantive  responses to 
Nextel.  We  take this  opportunity to remind  all licensees 
that  we  will, in  the  future,  consider issuing  monetary 
forfeitures against  licensees who fail to  fully meet their 
obligations to negotiate relocation in ``good faith.''

10.  We  note that  Nextel may  request that  the Commission 
order the involuntary relocation  of each of these incumbent 
licensees  -  a  procedure   specifically  embraced  by  the 
Commission and  contemplated by section 90.699  when parties 
have failed  to reach an  accord during the  two negotiation 
periods.   We   believe  that  a  request   for  involuntary 
relocation,  not the  commencement of  a license  revocation 
proceeding,  would produce  the most  expeditious result  in 
this instance  and serve  the public  interest, convenience, 
and necessity.  

                       IV. CONCLUSION

11.  IT IS HEREBY ORDERED THAT, pursuant to the authority in 
sections 0.111  and 0.311  of the Commission's  rules,32 the 
Motion  for Revocation  of  Licenses, filed  on October  16, 
2001, by  Nextel Communications,  Inc. and  Nextel Partners, 
Inc.  against C&W  Communications,  Inc. and  Steve Gill  IS 
HEREBY DENIED.

12.  IT IS  FURTHER ORDERED THAT, pursuant  to the authority 
in sections 0.111 and 0.311 of the Commission's rules,33 the 
Motion for Revocation of Licenses,  filed on April 15, 2002, 
by  Nextel Communications,  Inc. and  Nextel Partners,  Inc. 
against Radio Service Company IS HEREBY DENIED.

13.  IT IS  FURTHER ORDERED THAT, pursuant  to the authority 
in sections 0.111 and 0.311 of the Commission's rules,34 the 
Motion for Revocation  of Licenses, filed on  June 14, 2002, 
by Nextel  Communications, Inc. against Fresno  Mobile Radio 
Inc. IS HEREBY DENIED.

14.  IT IS  FURTHER ORDERED THAT, pursuant  to the authority 
in sections 0.111 and 0.311 of the Commission's rules,35 the 
Motion to Add a Candor Issue,  filed on October 16, 2001, by 
Nextel  Communications,  Inc.   and  Nextel  Partners,  Inc. 
against  C&W  Communications,  Inc., and  Motion  to  Strike 
Further  Opposition to  Motion  for  Revocation of  Licenses 
filed by  Nextel Communications, Inc. against  Fresno Mobile 
Radio Inc. on November 19, 2002 ARE DISMISSED AS MOOT.

                         FEDERAL COMMUNICATIONS COMMISSION



                         David H. Solomon
                         Chief, Enforcement Bureau 
_________________________

1 See  Motion for Revocation  of Licenses, filed  on October 
16,  2001, by  Nextel against  C&W (``Nextel/C&W  Motion''); 
Motion for Revocation of Licenses,  filed on April 15, 2002, 
by  Nextel  against  Radio Service  (``Nextel/Radio  Service 
Motion''); and  Motion for Revocation of  Licenses, filed on 
June  14, 2002,  by Nextel  against Fresno  (``Nextel/Fresno 
Motion'').

2 The Commission  does not recognize a formal  right to seek 
revocation of  a license.  See,  e.g., In the Matter  of MCI 
Telecommunications Corp., 3 FCC Rcd 3155 (1988); KDSK, Inc., 
93 FCC 2d 893 (1983).   The Commission, however, has treated 
such requests  as informal  requests for action  pursuant to 
section 1.41 of the Commission's Rules, 47 C.F.R. § 1.41.

3  Amendment  of  Part  90  of  the  Commission's  Rules  to 
Facilitate Future Development of the  SMR Systems in the 800 
MHz Frequency Band; Implementation  of Sections 3(n) and 322 
of  the Communications  Act Regulatory  Treatment of  Mobile 
Services;   Implementation   of   Section  309(j)   of   the 
Communications  Act¾Competitive  Bidding, First  Report  and 
Order,  Eighth  Report  and  Order,  and  Second  Notice  of 
Proposed  Rule  Making,  11  FCC Rcd  1463  (1995)  (``First 
R&O'').

4 First R&O, 11 FCC Rcd at 1476-77.

5 Id.

6 Id., 11 FCC Rcd at 1475.

7 Id., 11 FCC Rcd at 1503-08.  See also Amendment of Part 90 
to Facilitate  Future Development  in the 800  MHz Frequency 
Band, Second  Report and Order,  12 FCC Rcd  19079, 19110-17 
(1997).

8 47 C.F.R. § 90.699.

9  47 C.F.R. § 90.699(b) and (c).

10  See  Public  Notice,  800 MHz  Auction  Closes:  Winning 
Bidders  in  the Auction  of  525  Specialized Mobile  Radio 
Licenses, 12 FCC Rcd 20417 (1997).

11  Nextel notified  C&W, Fresno  and Radio  Service of  its 
intent to relocate their respective systems by letters dated 
January  19, 1999.  Nextel/C&W  Motion  at 4;  Nextel/Fresno 
Motion at 5; and Nextel/Radio Service Motion at 5. 

12 Nextel/C&W Motion  at 5;  Nextel/Fresno Motion  at 5; and 
Nextel/Radio Service Motion at 5.

13 Nextel/C&W  Motion at 6;  Nextel/Fresno Motion at  6; and 
Nextel/Radio Service Motion at 5-6.

14 Nextel/Fresno Motion at  7-8; Nextel/Radio Service Motion 
at 6-7; and  Nextel/C&W Motion at 13, 22.   C&W asserts that 
despite Nextel's letter, it was Nextel that was unwilling to 
meet to  negotiate. C&W Opposition to  Motion for Revocation 
of Licenses, filed November 7, 2001 (``C&W Opposition''), at 
1.  

15 Nextel/C&W Motion at  7-18; Nextel/Fresno Motion at 7-10; 
Nextel/Radio Service Motion at 6-8.

16 Nextel/Radio Service Motion at 6-7.

17 Nextel/Fresno Motion at 7.

18 Nextel/C&W Motion at 7-8.

19 Nextel/C&W Motion at 25; Nextel/Fresno Motion at 17; 
Nextel/Radio Service Motion at 5-6.  In further support of 
its requests for revocation, Nextel maintains that it has 
successfully negotiated the relocation of approximately 
1,000 incumbent site-based licensees to other spectrum and 
that the Incumbent Licensees are the only ones with whom 
negotiations have failed. Nextel/C&W Motion at 3; 
Nextel/Fresno Motion at 4; and Nextel/Radio Service Motion 
at 4.

20  C&W Opposition  at  10-13; Radio  Service Opposition  to 
Motion for Revocation of Licenses, filed September 16, 2002, 
at 13-18; and Fresno Opposition  to Motion for Revocation of 
Licenses, filed October 1, 2001, at 3-5.

21  See First  R&O, 11  FCC Rcd  at 1510.   With respect  to 
involuntary relocation, the Commission stated:

     In  such  a  case,   the  EA  licensee  must:  (1) 
     guarantee payment  of all costs of  relocating the 
     incumbent to  a comparable facility;  (2) complete 
     all  activities  necessary  for  placing  the  new 
     facilities  into operation,  including engineering 
     and frequency coordination,  if necessary; and (3) 
     build and test the  new system.  Specifically, any 
     relocation of  an incumbent  must be  conducted in 
     such  a  fashion  that  there  is  a  ``seamless'' 
     transition  from  the   incumbents  [sic]  ``old'' 
     frequency to its ``relocated'' frequency (that is, 
     there   is  no   significant  disruption   in  the 
     incumbent's operations).
Id.
 
22 Fresno  Opposition at 9;  Radio Service Opposition  at 9.  
Each incumbent asserts that most of Nextel's offers provided 
an  amount of  compensation  to  ``retune'' the  incumbent's 
radio system, and  did not provide for  building a redundant 
system  to   allow  a   ``seamless''  transition   for  each 
incumbent's customers, to which the incumbents believed they 
were entitled.  

23 C&W Opposition at 7.

24 Nextel/C&W  Motion at 6;  Nextel/Fresno Motion at  5; and 
Radio Service Opposition at 10.

25 47 U.S.C. § 312(a).

26 Tulsa Cable Television, 68 FCC 2d 869, 877 (1978).

27 Humboldt  Bay Video Co.,  56 FCC 2d  68, 71 n.  9 (1975).  
See also C.J. Community Services, Inc. v. FCC, 246 F.2d 660, 
664 (D.C.Cir.1957) (``When  a violation of the  Act has been 
shown,  the Commission  may  revoke a  station license,  but 
under § 312(b), it also may impose a lesser sanction.'').

28  See In  the Matter  of Petition  for Declaratory  Ruling 
Concerning the Requirement of  Good Faith Negotiations Among 
Economic Area Licensees and Incumbent Licensees in the Upper 
200 Channels  of the  800 MHz  Band, Memorandum  Opinion and 
Order,  16 FCC  Rcd  4882, 4884  (WTB  2001).  The  Wireless 
Telecommunications Bureau noted  in this declaratory ruling, 
issued shortly before  the close of the  mandatory period in 
this case, that as  part of each case-by-case determination, 
the Commission will generally apply the factors set forth in 
section  101.73  of  the  Commission's rules.  47  C.F.R.  § 
101.73.  These  factors include  whether the  auction winner 
has  made  a bona  fide  offer  of relocation,  whether  any 
premium demanded by the Incumbent is disproportionate to the 
cost  of providing  comparable  facilities,  what steps  the 
parties  have   taken  to  determine  the   actual  cost  of 
relocation,   and   whether   either  party   has   withheld 
information necessary to estimate the cost of relocation.  

29  In light of  this result,  we will  dismiss as  moot two 
ancillary motions  filed in these matters:   Nextel's Motion 
to Add a Candor Issue in the C&W proceeding filed on October 
16, 2001 (relating to  C&W's representation that it provided 
almost  all  requested  technical  information  despite  its 
alleged failure to submit  certain information regarding the 
``combiner'' system C&W was  utilizing), and Nextel's Motion 
to  Strike   Fresno's  Further  Opposition  to   Motion  for 
Revocation of Licenses filed on  November 19, 2002.  We have 
reviewed  the ancillary  motions and  conclude that  nothing 
therein  alters our  decision  to deny  Nextel's request  to 
institute revocation proceedings for the alleged infractions 
of our rules.

30 Nextel/Radio Service Motion at 8 and Nextel/Fresno Motion 
at 10.  
31
 See 47 C.F.R. § 90.699(b) and (c).  

32 47 C.F.R. §§ 0.11 and 0.311.

33 Id.

34 Id.

35 Id.