*Pages 1--5 from Microsoft Word - 37506* PUBLIC NOTICE Federal Communications Commission 445 12 th St., S. W. Washington, D. C. 20554 News Media Information 202 / 418- 0500 Internet: http:// www. fcc. gov TTY: 1- 888- 835- 5322 DA 04- 1031 April 15, 2004 WIRELESS TELECOMMUNICATIONS BUREAU APPROVES SETTLEMENT AGREEMENT AND DIRECTS PARTIES TO DISMISS PLEADINGS WITHIN 30 DAYS On February 4, 2004, Mobile Relay Associates and Mobile Relay Associates, Inc. (collectively MRA), James A. Kay, Jr. (Kay), and Laurence J. Feinberg (Feinberg) (collectively Parties) filed a Joint Motion seeking approval of a Settlement Agreement entered into by the Parties on January 19, 2004. 1 After reviewing the Parties’ request, the Mobility Division and the Public Safety and Critical Infrastructure Division (PSCID) together 2 grant the Joint Motion and approve the Settlement Agreement to the extent indicated herein. Background Over the past few years, MRA and Kay have filed several pleadings against each other with respect to applications and licenses in the Las Vegas, Nevada area. On February 4, 2004, the Parties filed their Joint Motion and the associated Settlement Agreement expressing their intent to resolve these contested cases through the assignment of certain licenses, the cancellation of Feinberg’s license for Station WPUR333, and the withdrawal of a number of pleadings. 3 Feinberg has not filed any pleadings relevant to the contested issues, but cancellation of his license is required if the Parties are to have the relief requested by their Settlement Agreement, and he has agreed to submit his license for cancellation. On February 25, 2004, pursuant to the terms of the Settlement Agreement, Kay and MRA filed two assignment applications. One application, File No. 0001621776, sought consent to assign sixteen (16) Private Industrial/ Business Pool stations from MRA to Kay (MRA- Kay Application). 4 The second 1 Joint Motion For Approval of Settlement, Withdrawal or Amendment of Pleadings, Grant of Applications and Cancellation of License, filed by Mobile Relay Associates and Mobile Relay Associates, Inc., James A. Kay, Jr., and Laurence J. Feinberg (Feb. 4, 2004) (Joint Motion). 2 This Public Notice is issued by both Divisions because the Settlement Agreement covers both Private Land Mobile Radio and Commercial Mobile Radio Service licenses, which are, respectively, the responsibility of PSCID and the Mobility Division. 3 Schedules 4. 1 and 5.1 to the Settlement Agreement list a number of pleadings associated with 23 applications that the Parties intend to withdraw upon approval of the Agreement. The same lists are provided in Exhibits E and F to the Joint Motion. 4 FCC Application for Wireless Telecommunications Bureau Radio Service Authorization, Assignment of Authorization, File No. 0001621776 (Feb. 25, 2004). Thirteen (13) of the stations are authorized for conventional operations (IG): KDY374, KNQ678, KS9400, KWP438, KYJ582, WIB617, WII345, WIL252, WIL294, WIL433, WIL618, WIL694, and WSD94. The remaining three (3) stations listed on the application are authorized for trunked operations (YG): WIG828, WPQC332, and WPTF351. 1 application, File No. 0001629299, seeks consent to assign seven (7) Private Industrial/ Business Pool stations from Kay to MRA (Kay- MRA Application). 5 Both assignment applications were placed on public notice, and PSCID consented to the MRA- Kay Application on March 5, 2004. 6 The Kay- MRA Application remains pending because of an issue under consideration with regard to Kay’s Station WIL653, one of the stations included in the assignment application. For the same reasons, a renewal application filed by Kay for Station WIL653 is currently pending before the Commission. 7 As stated above, under the terms of the Settlement Agreement, to resolve the issue that involves Station WIL653, Feinberg has agreed to cancel his license for Station WPUR333 within five (5) business days of Commission approval of the Settlement Agreement. Discussion The Mobility Division and the Public Safety and Critical Infrastructure Division have reviewed the Joint Motion and find that it raises no substantial or material questions of fact under Section 309( d) of the Communications Act, as amended. 8 Each Party filed individual certifications in support of the Joint Motion for Approval of Settlement, including the withdrawal of all pleadings pursuant to Section 1.935 of the Commission’s rules. 9 Pursuant to Sections 0.331 and 1.935 of the Commission’s rules, and the statements contained in the Joint Motion for Settlement and in the related certifications, the Mobility Division and the Public Safety and Critical Infrastructure Division together are approving the Settlement Agreement entered into by the Parties on January 19, 2004. Pursuant to the terms of that Agreement, Kay and MRA have agreed to file motions to dismiss or withdraw all pleadings associated with the twenty- three (23) applications referenced in the Joint Motion. Accordingly, the Parties are directed to file requests for dismissal, with prejudice, of all pleadings, as required by Sections 4 and 5 of the Settlement Agreement, no later than thirty (30) days following release of this Public Notice. The request( s) for dismissal must identify each pleading with specificity, including at a minimum, the name of the party who filed the pleading, the full caption of the pleading, the date stamped on the pleading, and, if known, any file number associated with the pleading. The following table lists seven “sets” of pleadings that Kay and MRA have agreed to withdraw based on the information provided in Exhibits E and F to the Joint Motion. The list is intended to help parse out which pleadings are relevant to the Settlement Agreement and is not intended to constitute a complete list. We note that both Kay and MRA have agreed under Sections 4 and 5 of the Settlement Agreement to withdraw all pleadings that one has filed against the other, including but not limited to the pleadings listed in the Joint Motion. Our grant of the Joint Motion is specifically conditioned on withdrawal of all such pleadings, whether or not listed herein or in the Joint Motion or Settlement Agreement. The request( s) for dismissal of pleadings associated with File Numbers 0001420784 and 415714 must be filed with the Mobility Division. All other request( s) for dismissal must be filed with the Public Safety and Critical Infrastructure Division. In addition, once Feinberg has submitted the appropriate request and the license for Station WPUR333 is cancelled pursuant to that request, PSCID thereupon will process both Kay’s renewal application for Station WIL653, and the assignment application, File No. 5 FCC Application for Wireless Telecommunications Bureau Radio Service Authorization, Assignment of Authorization, File No. 0001629299 (Feb. 25, 2004). The stations listed on the application are authorized for conventional operations (IG): WIF759, WIJ867, WIK664, WIK951, WIL256, WIL625, and WIL653. 6 Wireless Telecommunications Bureau Assignment of License Authorization Applications, Transfer of Control of License Applications, De Facto Transfer Lease Applications and Spectrum Manager Lease Notifications Action, Public Notice, Report No. 1770 (Mar. 10, 2004). 7 FCC Application for Wireless Telecommunications Bureau Radio Service Authorization, Renewal Only, File No. 0001562810 (Dec. 31, 2003). 8 47 U. S. C. § 309( d). 9 47 C. F. R. § 1.935. 2 0001629299, associated with the Settlement Agreement seeking to assign Private Industrial/ Business Pool stations from Kay to MRA. 3 LIST OF PLEADINGS PLEADING FILER DATE APPLICATION NUMBER( S) First Set of Pleadings Petition for Enforcement Action against MRA; First Supplement; Second Supplement; Third Supplement Kay 12/ 4/ 01 3/ 5/ 02 4/ 24/ 02 10/ 3/ 02 PSPWD Order, DA 03- 2155, rel. 7- 8- 03, granted Petition to the extent MRA Stations WII622, WII664, and WIJ226 permanently discontinued operations and therefore automatically cancelled before the applications to assign the stations to MRA were filed; otherwise denied Petition to Deny Kay 10/ 11/ 02 0000526163, 0000530288, 0000628268; Applications dismissed, PSPWD Order, DA 03- 2155, rel. 7- 8- 03 Opposition to Petition to Deny MRA 10/ 30/ 02 0000526163, 0000530288, 0000628268 Petition for Reconsideration Kay 10/ 11/ 02 0001018807, 0001028296, 0001028303, 0001027579, 0001027595; Petition denied, PSPWD Order, DA 03- 2155, rel. 7- 8- 03 Opposition to Petition for Reconsideration MRA 10/ 30/ 02 0001018807, 0001028296, 0001028303, 0001027579, 0001027595 Consolidated Reply to Oppositions Kay 11/ 19/ 02 0000526163, 0000530288, 0000628268, 0001018807, 0001028296, 0001028303, 0001027579, 0001027595 Petition for Reconsideration Kay 5/ 12/ 03 0001280607, 0001280608, 0001280611; Petition denied, PSPWD Order, DA 03- 2155, rel. 7- 8- 03 Opposition to Petition for Reconsideration MRA 5/ 27/ 03 0001280607, 0001280608, 0001280611 Petition for Reconsideration (pending) MRA 8/ 7/ 03 0000526163, 0000530288, 0000628268, 0001018807, 0001028296, 0001028303, 0001027579, 0001027595, 0001280607, 0001280608, 0001280611; to be withdrawn only with respect to the request for reinstatement of MRA Stations WII622, WII664, and WIJ226 Opposition to Petition for Reconsideration (pending) Kay 10 8/ 21/ 03 0000526163, 0000530288, 0000628268, 0001018807, 0001028296, 0001028303, 0001027579, 0001027595, 0001280607, 0001280608, 0001280611 Petition for Reconsideration (pending) Kay 8/ 7/ 03 0000526163, 0000530288, 0000628268, 0001018807, 0001028296, 0001028303, 0001027579, 0001027595, 0001280607, 0001280608, 0001280611 Opposition to Petition for Reconsideration (pending) MRA 8/ 20/ 03 0000526163, 0000530288, 0000628268, 0001018807, 0001028296, 0001028303, 0001027579, 0001027595, 0001280607, 0001280608, 0001280611 Second Set of Pleadings Supplement to Petition for Reconsideration Kay 8/ 1/ 02 0000644810 Opposition to Petition for Reconsideration MRA 3/ 20/ 02 0000644810 10 We note that on August 22, 2003, National Science and Technology Network, Inc. (NSTN) also filed an Opposition to MRA’s Petition for Reconsideration, with respect to application file numbers 0000526163, 0000530288, 0000628268. Upon MRA’s withdrawal of its Petition for Reconsideration, as specified herein, NSTN’s Opposition will become moot and will be dismissed as such. 4 LIST OF PLEADINGS (Continued) PLEADING FILER DATE APPLICATION NUMBER( S) Third Set of Pleadings Motion to Strike Unauthorized Pleading MRA 8/ 5/ 02 0000400166 Opposition to Motion to Strike Kay 8/ 19/ 02 0000400166 Fourth Set of Pleadings Petition for Reconsideration, or Alternatively, Petition for Initiation of Revocation MRA 4/ 1/ 03 415714; Feinberg License WPUR333 Fifth Set of Pleadings Petition for Reconsideration Kay 4/ 28/ 03 GC Docket No. 02- 37; PFR denied after Joint Motion was filed by Commission order released 3/ 23/ 04, FCC 04- 65, Opposition to Petition for Reconsideration MRA 6/ 16/ 03 GC Docket No. 02- 37 Sixth Set of Pleadings Protest and Objection to Application Kay 5/ 29/ 03 0001238586, 0001293127, 0001308977, 0001278326, 00013167555, 0001316822 Objection to Protest and Objection to Application MRA 6/ 11/ 03 0001238586, 0001293127, 0001308977, 0001278326, 00013167555, 0001316822 Seventh Set of Pleadings Petition to Dismiss or Deny MRA 9/ 22/ 03 0001420784 Opposition to Petition to Dismiss or Deny Kay 10/ 7/ 03 0001420784 All licenses transferred or otherwise conveyed hereby remain subject to the conditions, if any, thereon. Action taken pursuant to Sections 0.331 and 1.935 of the Commission’s rules, 47 C. F. R. §§ 0.331, 1.935, by the Assistant Chief, Mobility Division, and Deputy Chief, Public Safety and Critical Infrastructure Division. For further information, contact Cyndi Thomas, Assistant Chief, Mobility Division at (202) 418- 2018 or Cyndi. Thomas@ fcc. gov; or Michael Wilhelm, Deputy Chief, Public Safety and Critical Infrastructure Division at (202) 418- 0680 or Michael. Wilhelm@ fcc. gov. 5