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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 )
) File No. EB-02-IH-0681
FRESNO MOBILE RADIO, INC. )
Licensee of Private Land Mobile )
Stations WYY797, WYY798, )
ORDER ON REVIEW
Adopted: March 10, 2005 Released:
March 14, 2005
By the Commission:
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
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.
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
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
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.
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
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
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.
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.
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.