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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

                         ORDER ON REVIEW
Adopted:  March 10, 2005                          Released:  

March 14, 2005


By the Commission:

I.     INTRODUCTION

1.   In this Order on Review, we deny the April 19, 2004, 
Application for Review1 filed by Nextel Communications, Inc. and 
Nextel Partners, Inc. (collectively referred to as ``Nextel''), 
of the Enforcement Bureau's decision2 denying Nextel's requests 
for the commencement of license revocation proceedings against 
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'').3 As 
discussed more fully below, we have thoroughly reviewed the 
record before us and find no basis for commencing license 
revocation proceedings against any of the Incumbent Licensees.  
Accordingly, we affirm the Bureau's MO&O.4 

II.     BACKGROUND

2.   During the mid-1990s, the Commission determined that a new 
framework for the licensing of some 800 MHz licenses was 
appropriate.5  The Commission recognized that the advent of new 
technologies would permit licensees of wide area systems to 
achieve greater efficiencies than those operating small, site-
based systems.6  As a result, the Commission concluded that it 
was in the public interest to allow licensees to operate wide 
area systems in certain geographic areas (referred to as 
``Economic Areas'' or ``EAs'') in the upper portion of the 800 
MHz band.  To accomplish this goal, the Commission adopted 
competitive bidding rules to award overlay wide area licenses and 
established a procedure for the auction winners of these EA 
licenses to relocate any incumbent site-based licensees operating 
within the Economic Area on the assigned upper 800 MHz 
frequencies to comparable spectrum.  By thus relocating any 
relatively small site-based licensees to other frequencies, the 
new EA licensee could utilize more efficient technologies and 
provide wide area service to more customers in competition with 
personal communications services (``PCS'') and cellular 
providers.7    The Commission determined that it was best to rely 
primarily on market forces to accomplish such relocation and, in 
instances in which the parties failed to reach an agreement and 
the EA licensee requested intervention, the Commission would 
become involved and order involuntary relocation.8 

3.   To this end, Section 90.699 of the Commission's rules9 sets 
forth a three step procedure 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 first phase of the relocation 
procedure consists 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 this 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.10 

4.   In 1997, Nextel obtained a number of EA licenses in the 
upper 800 MHz band in Auction No. 16, including licenses for 
channels used by the Incumbent Licensees.11  Nextel notified each 
of the Incumbent Licensees of its desire to relocate their 
respective systems to comparable frequencies.12  Nextel and each 
of the Incumbent Licensees thereafter engaged in negotiations 
during both the voluntary and mandatory periods; however, the 
negotiations proved unsuccessful.13  

5.   Subsequently, Nextel filed a motion for revocation of 
licenses against each of the three Incumbent Licensees.14  Nextel 
argued in each motion that it had 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.15  Nextel also claimed that it had made relocation 
offers that went unanswered or that were rejected without 
adequate explanation.16  Nextel claimed that the Incumbent 
Licensees engaged in intransigent behavior during the 
negotiations in order to force Nextel to purchase their systems 
at inflated prices.17  Each of the Incumbent Licensees countered 
that, while it may have failed to reach an agreement with Nextel, 
there was no absence of ``good faith'' on its part.18  Each 
Incumbent Licensee maintained that it engaged the services of 
counsel to negotiate with Nextel,19 and in fact did negotiate to 
sell and/or relocate their respective systems.20

6.   In its MO&O, released on March 18, 2004, the Bureau 
considered each of Nextel's motions in a consolidated decision 
and declined to commence license revocation proceedings against 
any of the Incumbent Licensees.  The Bureau noted that the 
Commission's discretion to institute revocation proceedings under 
section 312(a) of the Communications Act of 1934, as amended, is 
very broad.21  After considering the facts of each case, the 
Bureau concluded that, taken as a whole, the conduct of each of 
the Incumbent Licensees was not so grave as to raise questions 
about its respective basic qualifications to remain Commission 
licensees.22  Thereafter, on April 19, 2004, Nextel filed its 
Application for Review of the MO&O.

III.     DISCUSSION

7.   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 . . . .''23  We note, as 
did the Bureau below, that our discretion under section 312(a) to 
institute revocation proceedings is very expansive.  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 . . . 
.''24  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 determines that a 
violation of Commission rules exists.''25  With this 
discretionary standard in mind, we turn to Nextel's Application 
for Review. 

8.   At the outset, Nextel asserts that the Bureau failed to 
follow Commission policy and precedent by ruling that it would 
exclude the possibility of license revocation as a sanction 
available in cases involving violations of the ``good faith'' 
relocation negotiation requirement.26  In so doing, according to 
Nextel, the Bureau ignored Commission pronouncements that it 
intended to use the ``full realm of enforcement mechanisms'' 
available to it -- including license revocation -- to ensure that 
licensees bargain in good faith.27  Nextel mischaracterizes the 
MO&O.  The Bureau did not suggest, much less state, in the MO&O 
that it would exclude license revocation as a possible sanction 
in cases involving a failure to negotiate in good faith.  To the 
contrary, the Bureau discussed at length in the MO&O the merits 
of Nextel's allegations and determined that there was no basis in 
this instance for commencing license revocation proceedings 
against any of the Incumbent Licensees because their individual 
behavior did not impugn their respective basic qualifications.  
Revocation remains an available sanction in appropriate 
relocation cases; these are simply not appropriate cases.

9.   Nextel also claims that the Bureau failed to undertake a 
case-by-case analysis of its motions, in contravention of 
Commission policy, because the Bureau rejected license revocation 
as a possible sanction.28  In support, Nextel asserts that the 
Incumbent Licensees' misconduct was willful and repeated, and the 
MO&O improperly considered all three motions ``en masse in a 
single order''29 without any individual analysis.  Nextel's 
argument again lacks merit.  Nextel's suggestion that a 
determination of ``good faith'' requires a separate order in each 
instance has no basis in law.  All three of Nextel's motions 
discussed similar, if not identical, facts and raised similar 
allegations in many respects.  In the interest of administrative 
efficiency, it was entirely appropriate for the Bureau to have 
considered the motions in a consolidated order.  Such 
consolidation did not diminish the integrity of the Bureau's 
deliberative process, and it certainly was not barred 
procedurally by any rule, policy, or precedent.  The Bureau 
considered all the facts presented by Nextel, determined that 
revocation proceedings were not warranted, and, accordingly 
denied each of the motions in one order.  We have again reviewed 
the record before us and agree with the Bureau that the 
information presented does not reveal misconduct so egregious as 
to warrant the extraordinary sanction of license revocation 
proceedings.  This does not mean that we reject license 
revocation as a possible sanction in other cases involving 
alleged violation of section 90.699,30 only that, in the exercise 
of our discretion, we reject such a sanction as to each of the 
Incumbent Licensees in this instance, based upon the information 
before us.  

10.  Finally, Nextel also argues that the Bureau improperly 
suggested that involuntary relocation procedures contained in 
Section 90.699 of the Commission's rules may serve as an 
appropriate ``sanction'' in cases in which incumbent licensees 
failed to engage in good faith relocation negotiations. 31   
Nextel again mischaracterizes the MO&O.  The Bureau noted that 
the rules establish involuntary relocation procedures for 
parties, like those here, that have failed to reach an accord 
during the two negotiation periods.32  The Bureau expressed its 
belief that a request by Nextel to invoke such involuntary 
relocation procedures as to each of the three Incumbent 
Licensees, rather than the commencement of protracted license 
revocation proceedings, ``would produce the most expeditious 
result'' and serve the public interest.33  Contrary to Nextel's 
assertion, the MO&O in no way implied that the involuntary 
relocation procedures contemplated by section 90.699 are penal in 
nature or constitute ``sanctions.''34  

11.  In sum, we conclude that the commencement of revocation 
proceedings for alleged violations of section 90.699 of the 
Commission's rules,35 which may be an appropriate response under 
certain circumstances, is not appropriate here.  We therefore 
affirm the Bureau's decision below and deny Nextel's instant 
Application for Review.

 IV.     CONCLUSION

12.  ACCORDINGLY, IT IS HEREBY ORDERED THAT, the Application for 
Review, filed on April 19, 2004, by Nextel Communications, Inc. 
and Nextel Partners, Inc. IS HEREBY DENIED.

13.  IT IS FURTHER ORDERED THAT Nextel's May 6, 2004, request for 
an extension of the time for filing its replies to the 
oppositions filed by Fresno and Radio Service IS GRANTED, and the 
Motions to File Unauthorized pleadings filed by Fresno and Radio 
Service on May 18 and 19, 2004, respectively, ARE DENIED.


14.  IT IS FURTHER ORDERED THAT the Office of the Secretary SHALL 
SEND COPIES of this Order on Review, via First Class Mail, to: 
Albert J. Catalano, Esquire, Catalano & Plache, PLLC, 3221 M 
Street, N.W., Washington, DC  20007 (counsel for Nextel 
Communications, Inc. and Nextel Partners, Inc.); Michael F. 
Morrone, Esquire, Keller & Heckman, LLP, 1001 G Street, N.W., 
Suite 500 West, Washington, DC  20001 (counsel for C&W 
Communications, Inc. and Steve Gill); Dale D. Avery, Radio 
Service Company, P.O. Box 338, Burley, ID 83318;36 and Robert H. 
Schwaninger, Jr., Esquire, Schwaninger & Associates, P.C., 1331 H 
Street, N.W., Suite 500, Washington, DC  20005 (counsel for 
Fresno Mobile Radio, Inc.).

                         FEDERAL COMMUNICATIONS COMMISSION
                         


                         
                         Marlene H. Dortch
                         Secretary
                          
_________________________

1Application for Review filed by Nextel Communications, Inc. and 
Nextel Partners, Inc. against C&W Communications, Inc., Steve 
Gill, Radio Service Company, and Fresno Mobile Radio, Inc., on 
April 19, 2004 (``Application for Review'').

2In the Matter of C&W Communications, Inc. et al., Memorandum 
Opinion and Order, 19 FCC Rcd 4495 (EB 2004) (``MO&O'').

3Also before the Commission are the following related pleadings:  
Oppositions to Application for Review, filed on May 4, 2004, by 
C&W; Opposition to Application for Review, filed on April 30, 
2004, by Radio Service; Opposition to Application for Review, 
filed on April 30, 2004, by Fresno; Motion for Extension of Time 
to Consolidate Pleading Cycle, filed on May 6, 2004, by Nextel; 
Opposition to Extension of Time to Consolidate Pleading Cycle, 
filed on May 7, 2004, by Radio Service; Opposition to Extension 
of Time to Consolidate Pleading Cycle, filed on May 7, 2004, by 
Fresno; Reply to Opposition of C&W to Application for Review, 
filed on May 14, 2004, by Nextel; Reply to Opposition of Radio 
Service Company to Application for Review, filed on May 14, 2004, 
by Nextel; Reply to Opposition of Fresno Mobile Radio, Inc. to 
Application for Review, filed on May 14, 2004, by Nextel; Motion 
to Accept Unauthorized Pleading and Motion to Strike Reply to 
Opposition to Application for Review, filed on May 18, 2004, by 
Fresno, Motion to Accept Unauthorized Pleading and Motion to 
Strike Reply to Opposition to Application for Review, filed on 
May 19, 2004, by Radio Service; Opposition to Fresno Motion to 
Accept Unauthorized Pleading filed by Nextel on May 28, 2004; and 
Opposition to Radio Service Company Motion to Accept Unauthorized 
Pleading filed by Nextel on May 28, 2004.

4The Commission does not recognize a formal right to seek 
revocation of a license.  See, e.g., 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.

5Amendment 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'').

6First R&O, 11 FCC Rcd at 1476-77.

7Id., 11 FCC Rcd at 1475.

8Id., 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).

947 C.F.R. § 90.699.

1047 C.F.R. § 90.699(b) and (c).

11See 800 MHz Auction Closes: Winning Bidders in the Auction of 
525 Specialized Mobile Radio Licenses, Public Notice, 12 FCC Rcd 
20417 (1997).

12Nextel notified C&W, Fresno and Radio Service of its intent to 
relocate their respective systems by letters dated January 19, 
1999.  See Motion for Revocation of Licenses, filed on October 
16, 2001, by Nextel against C&W (``Nextel/C&W Motion'') at 4; 
Motion for Revocation of Licenses, filed on April 15, 2002, by 
Nextel against Radio Service (``Nextel/Radio Service Motion'') at 
5; and Motion for Revocation of Licenses, filed on June 14, 2002, 
by Nextel against Fresno (``Nextel/Fresno Motion'') at 5. 

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

14See Nextel/C&W Motion, Nextel/Radio Service Motion, and 
Nextel/Fresno Motion described in note 11, supra. 

15Nextel/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 October 31, 2001 (``C&W Opposition'') at 1.  

16Nextel/C&W Motion at 7-18; Nextel/Fresno Motion at 7-10; 
Nextel/Radio Service Motion at 6-8.

17Nextel/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 maintained 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 licensees with whom negotiations 
have failed. Nextel/C&W Motion at 3; Nextel/Fresno Motion at 4; 
and Nextel/Radio Service Motion at 4.

18C&W Opposition to Motion for Revocation of Licenses, filed 
October 31, 2001 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.

19Nextel/C&W Motion at 6; Nextel/Fresno Motion at 5; and Radio 
Service Opposition to Motion for Revocation of Licenses at 10. 

20C&W Opposition to Motion for Revocation of Licenses at 2-7, and 
10-18; Radio Service Opposition to Motion for Revocation of 
Licenses  at 10-18; and Fresno Opposition to Motion for 
Revocation of Licenses at 3-5.
 
21MO&O, 19 FCC Rcd at 4498.

22Id. at 4499.

2347 U.S.C. § 312(a).

24Tulsa Cable Television, 68 FCC 2d 869, 877 (1978).

25Humboldt Bay Video Co., 56 FCC 2d 68, 71 n. 9 (1975).  

26Application for Review at 7, et seq.
27
In support of this proposition, Nextel cites the Commission's 
holding involving an earlier relocation rule in Amendment of the 
Commission's Rules Regarding a Plan for Sharing the Costs of 
Microwave Relocation, First Report and Order and Further Notice 
of Proposed Rulemaking, 11 FCC Rcd 8825 (1996). Id. at 8.  Nextel 
notes that the Wireless Bureau had cited this microwave 
relocation decision in 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) to support the proposition that any decision as 
to whether revocation is appropriate for a violation of section 
90.699 will be made on a case-by-case basis. Id.

28Id. at 11, et seq. 

29Id. at 15.

3047 C.F.R. § 90.699.

31Application for Review at 11, et seq. 

32MO&O, 19 FCC Rcd at 4500.

33Id.

34We note that, on April 19, 2004, concurrent with the filing of 
its instant Application for Review, Nextel filed a ``Petition for 
Involuntary Relocation'' with respect to each of the captioned 
licensees.  These petitions are currently pending.
 
3547 C.F.R. § 90.699.

36On August 11, 2004, Schwaninger & Associates, P.C., filed a 
Notification of Withdrawal of Legal Representation stating it 
would no longer be representing Radio Service Company with 
respect to Nextel's Application for Review.