*Pages 1--6 from Microsoft Word - 38215* PUBLIC NOTICE FEDERAL COMMUNICATIONS COMMISSION 445 TWELFTH STREET, S. W. WASHINGTON, D. C. 20554 DA 04- 1289 News media information 202/ 418- 0500 Fax- On- Demand 202/ 418- 2830 Internet: http:// www. fcc. gov ftp. fcc. gov Released: May 10, 2004 ARCH WIRELESS, INC. AND METROCALL HOLDINGS, INC. SEEK FCC CONSENT TO TRANSFER CONTROL OF LICENSES AND AUTHORIZATIONS WT Docket No. 04- 171 PLEADING CYCLE ESTABLISHED Petitions to Deny Due: June 9, 2004 Oppositions Due: June 21, 2004 Replies Due: June 28, 2004 I. INTRODUCTION Arch Wireless, Inc. (“ Arch”) and Metrocall Holdings, Inc. (“ Metrocall”) (collectively, “the Applicants”) have filed applications pursuant to Section 310( d) of the Communications Act of 1934, as amended. 1 In these applications, the Applicants seek Commission approval of the transfer of control of licenses and authorizations held by subsidiaries of Arch and Metrocall to a newly- formed company, Wizards- Patriots Holdings, Inc. (“ Newco”). 2 This transfer of control will take place as a result of a proposed transaction between Arch and Metrocall, whereby the licensee entities of the Applicants will become wholly- owned subsidiaries of Newco, which will be majority owned and controlled by Arch’s existing shareholders. 3 These transfer of control applications pertain to licenses for the Part 22 Paging and Radiotelephone Service, the Part 24 Narrowband Personal Communications Service, the Part 25 Satellite Earth Station Service, the Part 90 Private Carrier Paging, Industrial/ Business Pool and Public Safety Services, and the Part 101 Public Safety and Private Operational Fixed Point- to- Point Microwave Services. 1 47 U. S. C. §§ 214, 310( d). 2 The name of the company will be chosen sometime prior to closing; for the time being, it has been incorporated under the name Wizards- Patriots Holdings, Inc. See Application No. 0001701168, Exhibit One, at 4 n. 6. 3 See Wizards- Patriots Holdings, Inc., FCC Ownership Disclosure Form 602 (filed Apr. 14, 2004); Metrocall USA, Inc., FCC Ownership Disclosure Form 602 (filed Apr. 13, 2004). The Applicants state that Arch’s license- holding subsidiaries will file pro forma transfer of control notifications in connection with certain wireless licenses, pursuant to the Commission’s forbearance procedures, after the transaction is consummated. 1 2 II. DESCRIPTION OF TRANSACTION These transfer of control applications were filed in connection with the proposed merger of Arch’s and Metrocall’s operations. The Applicants state that, pursuant to the Agreement and Plan of Merger, the shareholders of Metrocall will receive $150 million in cash and shares in Newco in exchange for their existing Metrocall shares. Post- transaction, the Applicants state that Arch’s existing shareholders will own approximately 72.5% of Newco, and Metrocall’s shareholders will own the remaining 27.5%. 4 The Applicants further state that no shareholder currently owns more than 10% of Arch, and no shareholder of Arch or Metrocall will own more than 10% of Newco. 5 With respect to governance, the Applicants state that Newco’s board of directors will be initially composed of four members each from the current Arch and Metrocall boards, and one individual who is now a substantial shareholder of Arch. The Applicants state that there is no voting rights agreement or any other extraordinary restriction on the board’s composition. Following consummation of the proposed transaction, management of Newco will be led by Metrocall’s current President and CEO, who will serve as President, CEO, and as a member of the board. III. SECTION 310( d) APPLICATIONS A. Non- Pro Forma Applications The following applications for consent to the transfer of control of the licenses from Metrocall to Newco have been assigned the file numbers listed below. File No. Licensee Lead Call Sign 0001701168 6 Metrocall USA, Inc. KAA276 0001701432 Metrocall USA, Inc. KNNF697 50005CWTC04 7 Metrocall USA, Inc. KNKV210 4 The percentages may vary slightly, based on the extent of cash elections made by Metrocall’s shareholders at or prior to the closing of the transaction. Nonetheless, the Applicants represent that Arch’s existing shareholders will hold majority equity in, and control of, Newco. 5 The shares of both Arch and Metrocall are both publicly traded, and their ownership therefore remains subject to change. 6 File No. 0001701168 has been designated as the lead application, and all pleadings and other submissions filed in this matter that pertain generally to the transaction and not to a particular application will be available through this file number in the Wireless Telecommunications Bureau’s Universal Licensing System (“ ULS”) at http:// wireless. fcc. gov/ uls/. 7 This application is attached to File No. 0001701168. This application seeks consent for the transfer of control of licenses, from Metrocall to Newco, currently held by PageMart II Holdings, LLC and PageMart PCS Holdings, LLC, each of which are subsidiaries of WebLink Wireless, Inc. (“ WebLink”). As background, the WebLink licenses are the subject of two pending assignment of license applications pursuant to which WebLink seeks Commission consent to assign its licenses to Metrocall. See ULS File Nos. 0001525608 and 0001525609. Since the applications assigning licenses from Weblink to Metrocall have been consented to by the Commission but have not been consummated by the parties, the licenses are not shown as belonging to Metrocall in ULS. Thus, this 2 3 These applications will not be subject to the Wireless Telecommunications Bureau’s streamlined processing procedures. 8 B. Non- Pro Forma Application – Part 25 Satellite Earth Station Services The following application for consent to the non- pro forma transfer of control of various Satellite Earth Station licenses from Metrocall to Newco has been assigned the file number listed below. File No. Licensee Lead Call Sign SES- T/ C- 20040413- 00586 Metrocall USA, Inc. E980497 9 C. Pro Forma Applications – Part 25 Satellite Earth Station Services The following applications for consent to the pro forma transfer of control of various Satellite Earth Station licenses from Arch to Newco have been assigned the file numbers listed below. File No. Licensee Lead Call Sign SES- T/ C- 20040413- 00547 Arch Wireless License Co., LLC E960014 SES- T/ C- 20040413- 00546 Arch Wireless License Co., LLC E980420 These applications appeared on Public Notice on April 21, 2004. 10 This Public Notice extends the pleading cycle established in the April 21, 2004 Public Notice to the pleading cycle dates established herein. IV. EX PARTE STATUS OF THIS PROCEEDING Pursuant to section 1.1200( a) of the Commission’s rules, 11 the Commission may adopt modified application was filed manually with a request for waiver of the ULS electronic filing requirement, pursuant to section 1.913( b) of the Commission’s rules. 47 C. F. R. § 1.913( b). We grant the parties’ request for waiver of the ULS filing requirement. Inasmuch as the Applicants anticipate that the WebLink transaction will close before the instant transaction, the purpose of this application is to obtain Commission consent to transfer control of the WebLink licenses from Metrocall to Newco. 8 See 47 C. F. R. § 1.948( j). 9 This pro forma transfer application also includes Earth station call sign E960163; however, this authorization was surrendered on June 6, 2002 and cancelled by the Commission on June 12, 2002. See Satellite Communications Services Information Re: Actions Taken, Public Notice, Report No. SES- 00400 (IB rel. June 12, 2002). We note that Metrocall subsequently sought reconsideration of the cancellation of E960163, but no action was taken by the Commission to reinstate the authorization. We advise the parties to file a new application requesting authorization for this Earth station. 10 See Satellite Communications Services Re: Satellite Radio Applications Accepted for Filing, Public Notice, Report No. SES- 00597 (IB rel. Apr. 21, 2004) 11 47 C. F. R. § 1.1200( a). 3 4 or more stringent ex parte procedures in particular proceedings if the public interest so requires. We announce that this proceeding will be governed by permit- but- disclose ex parte procedures that are applicable to non- restricted proceedings under section 1.1206 of the Commission’s rules. 12 Parties making oral ex parte presentations are directed to the Commission’s statement re-emphasizing the public’s responsibility in permit- but- disclose proceedings and are reminded that memoranda summarizing the presentation must contain the presentation’s substance and not merely list the subjects discussed. 13 More than a one- or two- sentence description of the views and arguments presented is generally required. 14 Other rules pertaining to oral and written presentations are set forth in section 1.1206( b) as well. 15 We urge parties to use the Electronic Comment Filing System (“ ECFS”) to file ex parte submissions. 16 V. GENERAL INFORMATION The transfer of control applications referenced herein have been found, upon initial review, to be acceptable for filing. The Commission reserves the right to return any application if, upon further examination, it is determined to be defective and not in conformance with the Commission’s rules or policies. Final action on these applications will not be taken earlier than thirty- one days following the date of this Public Notice. 17 Interested parties must file petitions to deny no later than June 9, 2004. Persons and entities that file petitions to deny become parties to the proceeding. They may participate fully in the proceeding, including seeking access to any confidential information that may be filed under a protective order, seeking reconsideration of decisions, and filing appeals of a final decision to the courts. Oppositions to such pleadings must be filed no later than June 21, 2004. Replies to such pleadings must be filed no later than June 28, 2004. All filings concerning matters referenced to in this Public Notice should refer to DA 04- 1289 and WT Docket No. 04- 171, as well as the specific file numbers of the individual applications or other matters to which the filings pertain. Under the Commission’s current procedures for the submission of filings and other documents, 18 submissions in this matter may be filed electronically (i. e., though ECFS) or by hand delivery to the Commission’s Massachusetts Avenue location. 12 Id. § 1.1206. 13 See Commission Emphasizes the Public’s Responsibilities in Permit- But- Disclose Proceedings, Public Notice, 15 FCC Rcd. 19,945 (2000). 14 See 47 C. F. R. § 1.1206( b)( 2). 15 Id. § 1.1206( b). 16 See discussion infra Part V. 17 See 47 U. S. C. § 309( b). 18 See Implementation of Interim Electronic Filing Procedures for Certain Commission Filings, Order, 16 FCC Rcd. 21,483 (2001); see also FCC Announces a New Filing Location for Paper Documents and a New Fax Number for General Correspondence, Public Notice, 16 FCC Rcd. 22,165 (2001); Reminder: Filing Locations for Paper Documents and Instructions for Mailing Electronic Media, Public Notice, 18 FCC Rcd. 16,705 (2003). 4 6 the Commission’s rules are available electronically through ULS, which may be accessed on the Commission’s Internet website. Additional information regarding the transaction will be available on the FCC's Office of General Counsel's website, http:// www. fcc. gov/ ogc, which will contain a fully indexed, unofficial listing and electronic copies of all materials in this docket. Alternate formats of this public notice (computer diskette, large print, audio recording, and Braille) are available to persons with disabilities by contacting Brian Millin at (202) 418- 7426 (voice), (202) 418- 7365 (TTY), or send an e-mail to access@ fcc. gov. For further information, contact Erin McGrath, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau, at (202) 418- 2042, or Susan Singer, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau, at (202) 418- 1340. -FCC- 6