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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB DOCKET
NO. 00-156
)
Ronald Brasher )
Licensee of Private Land Mobile Stations )
WPLQ202, KCG967, WPLD495,WPKH771, )
WPKI739, WPKI733, WPKI707, WIL990, )
WPLQ475, WPLY658, WPKY903, WPKY901, )
WPLZ533, WPKI762, and WPDU262 )
Dallas/Fort Worth, Texas )
)
Patricia Brasher )
Licensee of Private Land Mobile Stations )
WPJI362, WPKY900, and WPLD570 )
Dallas/Fort Worth, Texas )
)
David Brasher )
Licensee of Private Land Mobile Stations )
WPBU651 and WPJR757 )
Dallas/Fort Worth, Texas )
)
D.L. Brasher )
Licensee of Private Land Mobile Station WPJR750 )
Dallas/Fort Worth, Texas )
)
Carolyn S. Lutz )
Licensee of Private Land Mobile Station WPJR763 )
Dallas/Fort Worth, Texas )
)
O.C. Brasher )
Licensee of Private Land Mobile Station WPJR761 )
Dallas/Fort Worth, Texas )
)
Jim Sumpter )
Licensee of Private Land Mobile Station WPJR725 )
Dallas/Fort Worth, Texas )
)
Norma Sumpter )
Licensee of Private Land Mobile Station WPJR739 )
Dallas/Fort Worth, Texas )
)
Melissa Sumpter )
Licensee of Private Land Mobile Station WPJS437 )
Dallas/Fort Worth, Texas )
)
Jennifer Hill )
Licensee of Private Land Mobile Station WPJR740 )
Dallas/Fort Worth, Texas ) Metroplex Two-Way Radio Service )
Licensee of Private Land Mobile Stations )
WPHS735, WPKP673, WPKM797, )
WPLZ841 and WPJR754 )
Dallas/Fort Worth, Texas )
)
DLB Enterprises, Inc. )
Licensee of Private Land Mobile Stations )
WPKM796, WPKL830, WPJY510, WPLU490, )
WPBH830, WPKP667, WPLY713, WPMH354, )
WPMH477, and WPKY978, )
Dallas/Fort Worth, Texas )
WNAH223 )
Cleora ,Oklahoma )
)
DLB Enterprises, Inc., )
Applicant for Conventional Industrial/Business ) File
Nos. AO17774,
Private Land Mobile Licenses ) AO20241 and AO19157
Dallas, Texas )
)
Applicant for Conventional Industrial/Business ) File
No. AO18555.
Private Land Mobile Licenses )
Crowley, Texas )
)
Applicant for Trunked Industrial/Business ) File No.
AO20755.
Private Land Mobile Licenses )
Crowley, Texas )
)
Applicant for Assignment of Private Land Mobile ) File
No. D110637
Station WPJR740 from Jennifer Hill )
Dallas, Texas )
)
Applicant for Assignment of Private Land Mobile )
Stations from Ronald Brasher (WPKI707, )
WPKI739, WPKI733 and WPLQ475), Norma ) File No.
D113240
Sumpter (WPJR739), D.L. Brasher (WPJR750), )
David Brasher (WPJR757), Jim Sumpter )
(WPJR725), Jennifer Hill (WPJR740), )
Metroplex Two-Way Radio Service (WPJR754), )
O.C. Brasher (WPJR761), Melissa Sumpter )
(WPJS437) Dallas, Texas )
)
Applicant for Assignment of Private Land Mobile ) File
No. D113242
Station )
)
Applicant for Modification of Private Land Mobile )
Stations WPKM796, and WPKL830, and ) File No.
D113241
Assignment of Private Land Mobile )
Stations WPKI733, WPLQ475, WPKI707 )
and WPKI739 from Ronald Brasher )
and Assignment of Private Land )
Mobile Station WPKM797 from Metroplex )
Dallas, Texas ) ORDER TO SHOW CAUSE, HEARING DESIGNATION ORDER
AND NOTICE OF OPPORTUNITY FOR HEARING
Adopted: August 23, 2000 Released:
August 29, 2000
By the Commission:
I. INTRODUCTION
1. In this Order, we commence a hearing proceeding to
determine whether the above-captioned licenses should be
revoked; whether the above-captioned applications should be
granted; and whether forfeitures should be imposed on one or
more of the captioned entities. The record before us
suggests that Ronald and Patricia Brasher, with the
assistance of David Brasher, Diane Brasher and Carolyn Lutz
(collectively, the ``Brashers''), may have submitted
fraudulent applications to the Commission in the name of
deceased persons, as well as in the name of persons who had
no knowledge of, or involvement in, the applications. We
also have evidence that some or all of the above-captioned
licensees may have misrepresented facts to, or lacked candor
with, the Commission and abused the Commission's processes.
Accordingly, we are commencing a proceeding to determine the
extent to which each captioned licensee has violated the
Commission's rules and to determine whether the above-
captioned licensees are qualified to remain or become
Commission licensees.
II. BACKGROUND
2. The captioned entities are, or seek to become,
private land mobile licensees. The Brashers operate DLB, a
business utilizing the captioned two-way private carrier and
commercial land mobile radio service stations. DLB, doing
business as Metroplex, offers subscription two-way radio
service to customers on these stations, a number of which
are operated together as a trunked system. On May 17, 1997,
Net Wave Communications, Inc. (``Net Wave'') filed a
Petition For Order To Show Cause (``Petition'') with the
Commission alleging, inter alia, that the captioned
licensees had misrepresented facts to the Commission and had
engaged in unauthorized transfers of control. In response
to Net Wave's petition, Commission staff commenced an
investigation.1 The staff's investigation revealed that
Ronald Brasher, on behalf of DLB, intended to construct and
to operate a large radio system. The frequency coordinator,
Personal Communications Industry Association, Ltd.
(``PCIA''), told him that it was PCIA/FCC policy not to
coordinate more than five channels per site, per license.
As a consequence, according to Ronald Brasher, he sought
others who might obtain licenses for stations that he could
manage. Jim Sumpter, Norma Sumpter, and Jennifer Hill have
declared that Ron Brasher told them that he wanted them to
obtain licenses, which they would then assign to him,
because he could not submit additional license applications
in his own name.
3. All of the above-captioned licensees or applicants
are related to and/or otherwise connected with Ronald and
Patricia Brasher. In this regard, David Brasher, also known
as D.L. Brasher, is a son of Ronald and Patricia Brasher.
Carolyn Lutz and Norma Sumpter are Patricia Brasher's
sisters. Norma Sumpter is also Jim Sumpter's wife; they, in
turn, are the parents of Melissa Sumpter and Jennifer Hill.
O.C. Brasher, deceased, was Ronald Brasher's father. Other
family members involved in this matter are Ruth Bearden, the
deceased mother of Ronald Brasher, and Diane Brasher, the
wife of David Brasher, and the corporate Secretary and a
Director of DLB.
4. In July 1996, Ronald Brasher, on behalf of DLB,
submitted applications to PCIA in the name of, and appearing
to bear the signatures of, O.C. Brasher, Ruth Bearden, Norma
Sumpter, Jim Sumpter, Melissa Sumpter and Jennifer Hill.
PCIA, in turn, submitted these applications to the
Commission and Commission staff subsequently granted each of
the applications.2 The filing fees for all of these
applications were paid with checks inscribed with the
``Brasher'' name and business address and purportedly signed
by Patricia Brasher.
5. Initially, Ronald Brasher claimed, with respect to
the stations licensed to entities or persons other than
himself, Metroplex and DLB, that he acted as manager
pursuant to oral agreements, now memorialized in writing,
with the named licensees, and that he was subject to their
supervision and control. However, O.C. Brasher had died in
1995 and Ruth Bearden had died in 1991, prior to the
submission of the applications in July 1996. When
specifically questioned regarding the submission of
applications in the name of his deceased parents, Ronald
Brasher asserted that he submitted the application of O.C.
Brasher to the frequency coordinator prior to the death of
O.C. Brasher on August 17, 1995 and that, as Executor of
O.C. Brasher's estate, he submitted an assignment
application in the name of O.C. Brasher in order to preserve
an asset of that estate.3 Ronald Brasher further stated
that the company he hired to prepare various applications
mistakenly filed Ruth Bearden's application in her name.4
With respect to the licenses issued to the Sumpters and Ms.
Hill, while they state that they were approached by Ronald
Brasher about applying for FCC licenses, they deny ever
knowing that they had stations licensed in their name until
after Net Wave filed its petition. The Sumpters and Ms.
Hill also state that the signatures on the applications
filed in their names are not theirs. They also deny having
any involvement in the construction or operation of their
respective stations. They claim that they have not received
any revenue or paid any expenses relating to those stations.
6. In response to a Commission inquiry letter to DLB,
Ronald Brasher reported that ``DLB is a family-owned
business . . . without a rigid hierarchy of authority and
responsibility.''5 Thus, it appears that other members of
the Brasher group participated in, knew of, or had reason to
know of possible misconduct. David Brasher is a Vice-
President of DLB and Carolyn Lutz is DLB's Office Manager.
In that capacity, each was involved in the operation of
these stations on a daily basis. Each of the Brashers was
also aware of the death of Ruth Bearden in 1991 and of O.C.
Brasher in 1995. Nevertheless, in 1999 David Brasher
executed a management agreement purportedly on behalf of
O.C. Brasher.6 In sum, each of the Brashers engaged in
activities that collectively raise questions about the
nature and extent of their involvement in the apparent
violations.
III. DISCUSSION
·
7. The circumstances described above raise substantial
and material questions as to whether the above-captioned
licensees and applicants are qualified to remain or to
become Commission licensees.7 It appears that the Brashers
have caused the filing of applications in the names of dead
people and in the names of persons who did not ever know of
the applications' existence. Furthermore, it appears that
the motive for this course of conduct was to avoid the
strictures of PCIA and/or Section 90.313(c) of the
Commission's rules,8 and that Ronald Brasher, on behalf of
DLB, obtained control of more channels than the number to
which they were, or he thought they were, entitled.
Finally, there are serious questions as to whether the
Brashers misrepresented facts to or lacked candor with the
Commission. If proven at hearing, this sort of intentional
and fraudulent conduct could compel the conclusion that the
perpetrators are not qualified to be Commission licensees.
8. Real Party-In-Interest/Control: In Trustees for
the University of Pennsylvania, 69
FCC 2d 1394, 1396 (1978), the Commission noted:
The Congress demonstrated its special concern that
ultimate responsibility for a station's operation
rests with the party licensed by this Commission
by imposing requirements that licensees notify the
Commission when a 'transfer of control' over a
station was proposed and by further requiring a
Commission finding that such a transfer will be in
the public interest, convenience, and necessity
before it can be consummated.
That sentence refers to Section 310(d) of the Communications
Act, 47 U.S.C. § 310(d). Section 310(d) prohibits de facto,
as well as de jure, transfers of control without Commission
approval. See Lorain Journal Co. v. FCC, 351 F.2d 824, 828
(D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966). The
phrase ``real party-in-interest'' is used in connection with
pending applications, while ``de facto control'' is used in
connection with a licensed station. In either case, the
pertinent concern is whether someone other than the named
applicant or licensee is in control. See Arnold L. Chase, 5
FCC Rcd 1642, 1648 n.5 (1990). The test for determining
whether an individual is a real-party-in-interest in an
application is whether that individual "has an ownership
interest or is or will be in a position to actually or
potentially control the operation of the station." High
Sierra Broadcasting, Inc., 96 FCC 2d 423, 427 (Rev. Bd.
1983). In determining whether de facto control of a non-
broadcast license or facility has been transferred in
violation of § 310(d), the Commission and the courts have
traditionally relied upon a six-part test announced in
Intermountain Microwave, 24 RR 983 (1963).9 The six indicia
of de facto control are:
(a) Does the licensee have unfettered use of
all facilities and equipment?
(b) Who controls daily operations?
(c) Who determines and carries out the policy
decisions, including
preparing and filing applications with
the Commission?
(d) Who is in charge of employment,
supervision, and dismissal of
personnel?
(e) Who is in charge of the payment of
financing obligations, including
expenses arising out of operating?
(f) Who receives monies and profits from the
operation of the facilities?
While Ronald Brasher claims that he was simply managing the
stations, subject to the control of others, it appears that
several of the named licensees were either dead or unaware
that they had licenses. Moreover, the Sumpters and Jennifer
Hill state that they neither received any monies from
station operations, nor paid any station expenses. Under
those circumstances, substantial and material questions of
fact exist concerning control of the stations. We will
therefore specify real-party-in-interest and de facto
control issues.
9. Abuse of Process: We will also specify an abuse of
process issue. Abuse of process is a broad concept that
includes use of a Commission process to achieve a result
that the process was not intended to achieve, or use of that
process to subvert the purpose the process was intended to
achieve. Broadcast Renewal Applicants, 3 FCC Rcd 5179, 5199
n. 2 (1988). ``It is an abuse of process to specify a
surrogate to apply for a station so as to deny the
Commission and the public the opportunity to review and pass
on the qualifications of that party.'' See Arnold L. Chase,
5 FCC Rcd at 1643. The information before us suggests that
the principals of DLB abused the Commission's processes by
filing applications under the names of others to acquire
licenses and stations that they may not have been able to
acquire, and did not think that they were able to acquire,
under their own names. The motive for doing so appears to
be to avoid PCIA's policy that it would coordinate only a
certain number of applications in an area at any given time
for any entity. Another possible motivation would have been
to avoid the limitations of Section 90.313(c) of the
Commission's rules, which states, ``A licensee will be
required to show that an assigned frequency pair is at full
capacity before it may be assigned a second or additional
frequency pair.'' Another possible abuse of process is the
alleged forgery of the signatures of the Sumpters and
Jennifer Hill to their applications. The Sumpters and
Jennifer Hill deny that they signed the applications filed
in their names. If one or more of the parties forged
signatures on an application or knowingly filed an
application with a forged signature, such conduct would be
an abuse of process because such conduct ``threatens the
integrity of the Commission's licensing processes.'' Policy
Statement on Character Qualifications in Broadcast
Licensing, 102 FCC 2d 1179, 1211 (1986).
10. Misrepresentation/Candor: Finally, we will
specify a misrepresentation/lack of candor issue.
Misrepresentation is a false statement made with intent to
deceive, while lack of candor is a concealment, evasion, or
other failure to be fully informative, accompanied by intent
to deceive. Fox River Broadcasting, Inc., 93 FCC 2d 127,
129 (1983). In Contemporary Media, Inc., et al. v. FCC, 214
F.3d 187, 193 (D.C. Cir. June 16, 2000), the court
recognized, ``The FCC relies heavily on the honesty and
probity of its licensees in a regulatory system that is
largely self-policing.'' The Court also stated, ``[I]t is
well recognized that the Commission may disqualify an
applicant who deliberately makes misrepresentations or lacks
candor in dealing with the agency.''10 The information
before us raises several substantial questions about the
honesty of the above-captioned licensees. First, the
Brashers' representations that the Sumpters and Ms. Hill
were actively involved in applying for their licenses and in
supervising the construction and operation of the stations
in their names is inconsistent with the Sumpters' denial
that they had any such involvement. Second, the Brashers
submitted apparently inconsistent responses to the
Commission regarding their involvement with the stations
authorized to O.C. Brasher and to Ruth Bearden. Despite the
fact that O.C. Brasher and Ruth I. Bearden were deceased
prior to submission of any application in their names,
Ronald Brasher claimed that he acted under their supervision
when he obtained their licenses and/or constructed and
managed their stations. He also stated that, as Executor of
his father's estate, he signed O.C. Brasher's name to an
assignment application, but the application did not reveal
that O.C. Brasher was deceased. David Brasher executed a
management agreement, purportedly on behalf of O.C. Brasher,
on March 29, 1999, three and one-half years after the death
of O.C. Brasher. DLB then submitted that agreement to the
Commission. Third, Patricia Brasher denies providing any
assistance or supervision regarding the preparation or
filing of any applications in the names of O.C. Brasher or
Ruth Bearden, yet checks bearing the name ``Brasher'' and
purporting to bear Patricia Brasher's signature accompanied
each application submitted to the Commission regarding these
licensees. The inconsistencies between the available
evidence and the licensees' statements require further
exploration in a hearing. Accordingly, we will specify
appropriate issues.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to
Sections 309(e), 312(a)(2), 312(a)(4), 312(c) and 503 of the
Act, 47 U.S.C. §§ 309(e), 312(a)(2), 312(a)(4), 312(c) and
503, the above?captioned licenses and applications are
designated for hearing in a consolidated proceeding before
an FCC Administrative Law Judge, at a time and place to be
specified in a subsequent Order, upon the following issues:
(a) To determine whether any of the above-
captioned licensees made misrepresentations
to, and/or lacked candor before, the
Commission in applications and/or responses
to Commission inquiries;
(b) To determine whether any of the above-
captioned licensees were undisclosed real-
parties-in-interest or willfully and/or
repeatedly violated § 310(d) of the
Communications Act of 1934, as amended, by
engaging in unauthorized transfers of
control involving their respective stations;
(c) To determine whether any of the
captioned parties abused the Commission's
processes in connection with the filing of
applications on behalf of O.C. Brasher,
Ruth I. Bearden, Jim Sumpter, Norma
Sumpter, Melissa Sumpter or Jennifer Hill;
(d) To determine, in light of the evidence
adduced pursuant to the foregoing issues,
whether the above-captioned licensees are
basically qualified to be and/or remain
Commission licensees;
(e) To determine, in light of the evidence
adduced pursuant to the foregoing issues,
whether any or all of the above-captioned
licenses should be revoked;
(f) To determine, in light of the evidence
adduced pursuant to the foregoing issues,
whether any or all of the above-captioned
applications should be granted.
12. IT IS FURTHER ORDERED that, irrespective of the
resolution of the foregoing issues, it shall be determined,
pursuant to Section 503(b)(3)(A) of the Act, 47 U.S.C. §
503(b)(3)(A), whether an Order of Forfeiture shall be issued
against any or each of the parties for having willfully
and/or repeatedly violated Section 310(d) of the Act. For
the violation of Section 310(d) of the Act, the maximum
potential forfeiture liability for each of the parties shall
be $82,500.00.11 This figure is set based upon the
seriousness of the alleged violations, the continuing nature
of the alleged violations, the apparent culpability of each
party, the information available to us concerning the
financial condition of each party, the ability of each party
to profit from the alleged rule violations, and the nature
of the stations in question.
13. IT IS FURTHER ORDERED that, in connection with the
potential forfeiture liability noted above, this document
constitutes notice, pursuant to Section 503(b)(3)(A) of the
Act.
14. IT IS FURTHER ORDERED that, to avail themselves of
the opportunity to be heard and to avail themselves of the
right to present evidence at a hearing in these proceedings,
pursuant to §§ 1.91(c) and 1.221(c) of the Commission's
Rules, 47 C.F.R. §§1.91(c) and 1.221(c), licensees Ronald
Brasher, Patricia Brasher, David Brasher, D.L. Brasher,
Carolyn S. Lutz, Jim Sumpter, Norma Sumpter, Melissa
Sumpter, Jennifer Hill, DLB Enterprises, Inc. and Metroplex
Two-Way Radio Service, in person or by their attorneys,
shall each file, within 30 days after receipt of this Order,
a written appearance stating that it will appear at the
hearing and present evidence on matters specified in that
Order. If any of the licensees fail to file a timely
written notice of appearance, the right to a hearing shall
be deemed to be waived. See Section 1.92(a) of the
Commission's rules. Where a hearing is waived the licensee
may submit a written, signed statement of mitigation or
justification within 30 days of receipt of the Order to Show
Cause. See Section 1.92(b) of the Commission's rules. In
the event the right to a hearing is waived, the Chief
Administrative Law Judge (or presiding officer if one has
been designated) shall, at the earliest practicable date,
terminate the hearing proceeding with respect to that
particular licensee and certify the case to the Commission,
and in the regular course of business, an order will be
entered. See Section 1.92(c) of the Commission's rules. If
a written notice of appearance is not timely filed on behalf
of DLB Enterprises within 20 days of the mailing of this
Hearing Designation Order, or it has not filed prior to the
expiration of the specified time a petition to dismiss
without prejudice or a petition to accept for good cause its
written appearance beyond the specified time, its
applications will be dismissed with prejudice. See Section
1.221 of the Commission's rules.
15. IT IS FURTHER ORDERED that pursuant to § 312(d) of
the Communications Act of 1934, as amended, 47 U.S.C.
§312(d) and § 1.91(d) of the Commission's Rules, 47 C.F.R. §
1.91(d), the burden of proceeding with the introduction of
evidence and the burden of proof shall be upon the
Enforcement Bureau as to the issues at ¶ 11 (a)-(e) and ¶
12, above, and that, pursuant to 47 U.S.C. Section 309(e)
and Section 1.254 of the Commission's rules, the burden of
proceeding with the introduction of evidence and the burden
of proof shall be upon the applicants as to the issues at ¶
11(f).
16. IT IS FURTHER ORDERED that the Commission's
Reference Information Center shall send a copy of this Order
via Certified Mail - Return Receipt Requested to the
captioned licensees and their counsel as follows:
Robert Schwaninger, Esq. John McVeigh, Esq.
1835 K Street, N.W., Suite 650 12101 Blue
Paper Trail
Washington, D.C. 20006 Columbia, MD 21044-
2787
.
DLB Enterprises, Inc. Jim Sumpter
2244 Larson Lane 18601 LBJ Freeway
Suite 104 Town East Tower,
Suite 500
Dallas, TX 75229 Mesquite, TX 75150
Metroplex Two-Way Radio Service Norma Sumpter
2244 Larson Lane, Suite 104 4008 Harbinger
Drive
Dallas, TX 75229 Mesquite, TX 75150
Ronald Brasher Melissa Sumpter
2244 Larson Lane, Suite 104 4008 Harbinger
Drive
Dallas, TX 75229 Mesquite, TX 75150
Patricia A. Brasher Jennifer Hill
2244 Larson Lane, Suite 104 4312 Gus
Thomasson Road, Apt. 721
Dallas, TX 75229 Mesquite, TX 75150
David L. Brasher Carolyn S. Lutz
2910 West Bend Drive 3000 Lambert
Drive
Irving, TX 75063-3113 Mesquite, TX
75150
D.L. Brasher Estate of O.C.
Brasher
222 Molina Drive 224 Molina Drive
Sunnyvale, TX 75182 Sunnyvale, TX
75182
17. IT IS FURTHER ORDERED that the Secretary of the
Commission shall cause to have this Order or a summary
thereof published in the Federal Register.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 The Commission does not recognize a formal right to seek
revocation of a license. See, e.g., Danbury Cellular
Telephone Company, Inc., 6 FCC Rcd 4186, 4188 n.2 (CCB
1991). The Commission, however, has treated such requests
as informal requests for action pursuant to Section 1.41 of
the Commission's Rules, 47 CFR §1.41. In this case, the
Petition was treated as an informal complaint. An
investigation was initiated to investigate the allegations
made in the Petition. This Order is based, not upon the
Petition, but upon the results of the Bureau's investigation
and, unless otherwise noted, the facts described in this
Order were developed in the course of that independent
investigation.
2 The license issued to Ruth Bearden for Station WPJR762
was cancelled in 1999 for failure to respond to a Commission
staff inquiry regarding station construction and operation.
3 O.C. Brasher died on August 17, 1995. However, the
application filed in his name, and purporting to bear his
signature, was dated June 17, 1996, was accompanied by a
check, purportedly signed by Patricia Brasher, that was
dated June 18, 1996 and was filed with the Commission on
July 16, 1996.
4 Ruth Bearden died on April 22, 1991. However, the
application filed in her name, and purporting to bear her
signature, was dated June 18, 1996, was accompanied by a
check, purportedly signed by Patricia Brasher, that was
dated June 18, 1996 and was filed with the Commission on
July 17, 1996.
5 Letter from Ronald D. Brasher to Thomas D. Fitz-Gibbon,
Esq., Compliance and Litigation Branch, Enforcement and
Consumer Information Division, Wireless Telecommunications
Bureau, submitted to the Commission by Dennis C. Brown, Esq.
with transmittal letter dated December 7, 1998 (¶2 of Answer
1).
6 See DLB's 308(b) Response letter from Michael L. Higgs,
Esq., Schwaninger & Associates, Attorneys at Law, to Richard
J. Arsenault, Esq., Compliance and Litigation Branch,
Enforcement and Consumer Information Division, Wireless
Telecommunications Bureau, dated April 5, 1999 (Bates page
nos. 0500-0510, Radio System Management and Marketing
Agreement made on March 29, 1999 between O.C. Brasher
(Licensee) and DLB Enterprises, Inc. (Agent) and executed by
David L. Brasher for Licensee and Patricia A. Brasher for
DLB.
7 The substantial-and-material-questions-of-fact standard of
Section 309(d) and (e) of the Communications Act of 1934, as
amended, 47 U.S.C. §309(d) and (e), applies to applications
and not revocation. See MCI Telecommunications Corporation,
3 FCC Rcd 509, n.17 (1988). We, nevertheless, use it for
convenience here in the revocation context as well.
8 47 C.F.R. § 90.313(c). That rule limits the eligibility
of any particular licensee to one channel until it
demonstrates that the channel assigned is fully loaded. In
this service, a channel is fully loaded when 90 mobiles are
operating on the channel.
9 See also Telephone and Data Systems, Inc. v. FCC, 19 F.3d
42 (1994), which arose from an appeal of the Commission's
decision in Ellis Thompson Corp., 7 FCC Rcd 3932 (1992);
LaStar Cellular Telephone Co., 5 FCC Rcd 3286 (1990); Norcom
Communications Corporation, 13 RCC Rcd 21483 (1998).
10 Id. at 196 (D.C. Cir. June 16, 2000), citing Schoenbohm
v. FCC, 204 F.3d 243. 247 (D.C. Cir. 2000). See also FCC v.
WOKO, Inc. 329 U.S. 223, 225-27 (1946); Swan Creek
Communications, Inc. v. FCC, 39 F.3d 1217, 1221-24 (D.C.
Cir. 1994); Garden State Broad. Ltd. v. FCC, 996 F.2d 386,
393-94 (D.C. Cir. 1993).
11 The figure contained in Section 503(b)(2)(c) of the Act,
47 U.S.C. § 503(b)(2)(c), is $75,000. Pursuant to the Debt
Collection Improvement Act of 1996, Public Law 104-134 (110
Stat. 1321-358), the maximum has been adjusted for inflation
up to $82,500. See Section 1.80(b)(5)(iii) of the
Commission's rules, 47 C.F.R. § 1.80(b)(5)(iii).