Federal Communications Commission DA 07-1087 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of PAGING SYSTEMS, INC. Application for Renewal of Automated Maritime Telecommunications System Stations in Hawaii Application for New Automated Maritime Telecommunications System Stations in Hawaii Petitions for Reconsideration filed by Warren C. Havens, Intelligent Transportation & Monitoring Wireless LLC, AMTS Consortium LLC, Telesaurus-VPC LLC, and Telesaurus Holdings GB LLC ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) File No. 0002257822 File No. 0002296956 ORDER ON RECONSIDERATION Adopted: March 7, 2007 Released: March 8, 2007 By the Chief, Mobility Division, Wireless Telecommunications Bureau: 1. Introduction. In this Order on Reconsideration, we address two petitions filed jointly by Warren C. Havens (Havens), Intelligent Transportation & Monitoring Wireless LLC (ITL), AMTS Consortium, LLC (ACL), Telesaurus-VPC, LLC (TVL), and Telesaurus Holdings GB LLC (THL) (collectively, Petitioners) requesting reconsideration of decisions by the Public Safety and Critical Infrastructure Division1 (Division) regarding Petitioners’ petitions to deny the above-captioned applications filed by Paging Systems, Inc. (PSI). Specifically, on August 7, 2006, Petitioners requested reconsideration of an order2 granting in part and denying in part Petitioners’ petition to deny PSI’s application to renew the license for Automated Maritime Telecommunications System (AMTS) Station WHG545 in Hawaii. On September 5, 2006, Petitioners requested reconsideration of an order3 denying Petitioners’ petition to deny PSI’s long-form application for an AMTS license in the Hawaii region, filed at the conclusion of Auction No. 61. The two petitions for reconsideration raise overlapping issues, and will be addressed together in the interest of administrative efficiency.4 For the reasons discussed below, 1 Pursuant to a reorganization effective September 25, 2006, certain duties of the Public Safety and Critical Infrastructure Division were assumed by the Mobility Division. See Establishment of the Public Safety and Homeland Security Bureau, Order, 21 FCC Rcd 10867 (2006). 2 Paging Systems, Inc., Order, 21 FCC Rcd 7225 (WTB PSCID 2006) (WHG545 Order). 3 Marine Communications/Land Mobile LLC, and Paging Systems, Inc., Order, 21 FCC Rcd 8794 (WTB PSCID 2006) (Auction No. 61 Order). Petitioners’ request for reconsideration of the denial in the Auction No. 61 Order of their petition to deny the Auction No. 61 long-form application of Maritime Communications/Land Mobile, LLC, will be addressed in a separate order. 4 See, e.g., Clarendon Foundation, Memorandum Opinion and Order, 18 FCC Rcd 13437, 13438 ¶ 1 (2003); Comcast Cablevision of Dallas, Inc., Order, 20 FCC Rcd 14299, 14299 ¶ 3 (MB PD 2005). Federal Communications Commission DA 07-1087 2 we deny both petitions for reconsideration. 2. Background. In 1981, the Commission designated spectrum for AMTS operations at the request of tug, towboat, and barge operators, who had complained that the existing ship-shore communications service was not adequate to meet their needs.5 The Commission has designated two spectrum channel blocks for AMTS operations.6 3. PSI’s license for Station WGH545 was granted on June 1, 1995, for a facility at Wailuku (Mt. Haleakala), Hawaii. The license was modified on July 16, 1997, to authorize a second site at Honolulu, Hawaii. The sites were authorized to operate on Channel Block B. Under Section 80.475(a) of the Commission’s Rules as in effect when the license was granted, AMTS applicants proposing to serve a portion of the Atlantic, Pacific, or Gulf of Mexico coastline were required to provide continuity of service to a “substantial navigational area.”7 Under the Commission's Rules, AMTS facilities must be constructed within a specified time and must remain operational in order for the license to remain valid.8 PSI notified the Commission that the Wailuku and Honolulu sites were constructed on August 7, 1997 and May 18, 1998, respectively. The license for Station WHG545 was renewed in 2000. 4. In 2002, the Commission adopted a geographic licensing approach for AMTS stations.9 The Commission also determined to use competitive bidding to license geographic area AMTS stations.10 On August 17, 2005, the Commission completed the auction of ten AMTS licenses in Auction No. 61.11 ACL was the high bidder for the Block A license for Hawaii, and PSI was the high bidder for the Block B license for Hawaii.12 5 See Amendment of Parts 2, 81 and 83 of the Commission’s Rules to Allocate Spectrum for an Automated Inland Waterways Communications System (IWCS) along the Mississippi River and Connecting Waterways, GEN Docket No. 80-1, 84 F.C.C. 2d 875, 876 ¶ 2 (1981), on recon., Memorandum Opinion and Order, 88 F.C.C. 2d 678 (1982), aff’d sub nom. WJG Tel. Co. v. FCC, 675 F.2d 386 (D.C. Cir. 1982). The Commission originally allocated spectrum for AMTS use on the Mississippi River, then expanded the authorized service area to the Gulf Intracoastal Waterway in 1982, the Gulf of Mexico in 1984, and nationwide in 1991. See Amendment of Parts 2 and 80 of the Commission’s Rules Applicable to Automated Maritime Telecommunications Systems (AMTS), First Report and Order, GEN Docket No. 88-372, 6 FCC Rcd 437 (1991); Amendment of Parts 2, 81 and 83 of the Rules to Add the Gulf of Mexico to the Authorized Service Areas of Maritime Mobile Systems Operating in the 216-220 MHz Band, Report and Order, GEN Docket No. 84-18, 56 Rad. Reg. 2d (P & F) 1613 (1984); Amendment of Parts 2, 81 and 83 of the Rules to Add the Gulf Intracoastal Waterway to the Authorized Service Area of Inland Waterways Communications Systems, Report and Order, GEN Docket No. 81-822, 51 Rad. Reg. 2d (P & F) 440 (1982). 6 AMTS Channel Blocks A (217.5-218/219.5-220 MHz) and B (217-217.5/219-219.5 MHz). See 47 C.F.R. § 80.385(a)(2). 7 47 C.F.R. § 80.475(a) (1998). 8 See 47 C.F.R. §§ 1.955(a), 80.49(a)(3). 9 See Amendment of the Commission’s Rules Concerning Maritime Communications, Second Memorandum Opinion and Order and Fifth Report and Order, PR Docket No. 92-257, 17 FCC Rcd 6685, 6686 ¶ 2 (2002). 10 Id. at 6687 ¶ 2. 11 See Auction of Automated Maritime Telecommunications System Licenses Closes: Winning Bidders Announced for Auction No. 61, Public Notice, 20 FCC Rcd 13747 (WTB 2005) (Auction Closing PN). The licenses available in Auction No. 61 were those for which there was no winning bidder in the first AMTS auction, Auction No. 57, which closed on September 15, 2004. See Auction of Automated Maritime Telecommunications System Licenses Scheduled for August 3, 2005, Public Notice, 20 FCC Rcd 7811, 7816 (WTB 2005). 12 See Auction Closing PN, 20 FCC Rcd at 13755. ACL also was the high bidder for the Block A license for the Northern Pacific region; another Petitioner, ITL, was the high bidder for the Block A licenses for the Northern Atlantic, Southern Atlantic, and Alaska regions. Id. Federal Communications Commission DA 07-1087 3 5. On September 2, 2005, Petitioners filed a petition to deny PSI’s application to renew its license for Station WHG545, which had appeared on public notice as accepted for filing on August 3, 2005.13 On November 10, 2005, Petitioners filed a petition to deny PSI’s Auction No. 61 long-form application, which had appeared on public notice as accepted for filing on October 31, 2005.14 6. On July 7, 2006, the Division granted in part and denied in part Petitioners’ petition to deny PSI’s application to renew its license for Station WHG545. As an initial matter, the Division declined to address PSI’s challenge to Petitioners’ standing, deciding instead to treat the petition as an informal request for relief pursuant to Section 1.41 of the Commission’s Rules15 in the event Petitioners lacked standing to file a formal petition to deny.16 On the merits, the Division granted the petition with respect to the Wailuku site because PSI, in a supplement to its opposition to the petition to deny, indicated that it had decided to abandon the site and no longer sought to renew the authorization for it.17 The Commission consequently canceled the authorization for the Wailuku site,18 and concluded that it did not need to resolve Petitioners’ assertion, which PSI disputed, that the Wailuku facility had never been constructed.19 However, the Division found that Petitioners’ additional arguments did not demonstrate that the renewal application should be denied with respect to the Honolulu facility.20 The Division concluded that Petitioners did not timely raise their arguments that that the authorization for the Honolulu site cannot stand alone because that facility does not cover a “substantial navigational area” and has never offered service to the public,21 but also explained that the arguments were not persuasive.22 7. On August 3, 2006, the Division denied Petitioners’ petition to deny PSI’s Auction No. 61 long-form application. The Division rejected Petitioners’ argument that the application should be denied because PSI fraudulently concealed the invalidity of license for Station WHG4545, which fraudulently dissuaded Petitioners from bidding more aggressively for the Block B geographic license for Hawaii. The Division noted that it had rejected Petitioners’ assertion that the license automatically terminated in the WHG545 Order.23 It also noted that it had rejected Petitioners’ contention that a long- form application should be denied based on the asserted invalidity of the applicant’s incumbent site-based 13 See Public Notice, Report No. 2217 (rel. Aug. 3, 2003). 14 See Wireless Telecommunications Bureau Announces that Applications for Automated Maritime Telecommunications System Licenses Are Accepted for Filing, Public Notice, 20 FCC Rcd 17066 (WTB 2005). 15 47 C.F.R. § 1.41. 16 See WHG545 Order, 21 FCC Rcd at 7228 n.28. 17 See id. at 7228 ¶ 10. PSI requests that the WHG545 Order be modified to reflect that the petition to deny was dismissed as moot, rather than granted, with respect to the Wailuku site. See Request for Correction of Clerical and Other Errors in Order (filed July 24, 2006). We decline this request. At the time the WHG545 Order was released, the Wailuku site was listed on the license for Station WHG545, and was within the scope of the pending renewal application (which was not amended so as to exclude renewal of the authorization for the Wailuku site). Consequently, the Division correctly characterized it action as a grant of the petition to deny with respect to the Wailuku site, and the renewal application was granted in part. PSI also points out errors in the WHG545 Order with respect to certain dates. Because the errors do not go to the merits of the WHG545 Order, we will not revise it. However, we note that PSI is correct that the petition to deny was filed on September 2, 2005, and PSI’s extension request was filed on September 13, 2005. 18 See WHG545 Order, 21 FCC Rcd at 7729 ¶ 13, 7730 ¶ 15. 19 See id. at 7228 ¶ 10. 20 Id. 21 Id. at 7229 ¶ 12. 22 Id. at 7229 n.41. 23 See Auction No. 61 Order, 21 FCC Rcd at 8800 ¶ 12 (citing WHG545 Order, 21 FCC Rcd at 7729 ¶ 12). Federal Communications Commission DA 07-1087 4 stations in the geographic area at issue in its previous decision denying Petitioner’s petition to deny PSI’s Auction No. 57 application, on the grounds that bidders such as the Petitioners are solely responsible for exercising due diligence in investigating geographic licenses for which they bid.24 Finally, the Division concluded that the Petitioners had not substantiated their allegations that PSI and Maritime Communications/Land Mobile, LLC (MC/LM), another participant in Auction No. 61, colluded or conspired against the Petitioners.25 8. On August 7, 2006, Petitioners filed a petition for reconsideration of the WHG545 Order.26 On September 5, 2006, the Petitioners filed a petition for reconsideration of the Auction No. 61 Order.27 9. Discussion. Petitioners argue that the Division previously determined that they had standing to file formal petitions to deny AMTS applications, and thus should have afforded them standing to file a petition to deny PSI’s application to renew its license for Station WHG545 rather than treating it as an informal request for relief.28 PSI repeats its assertion that Petitioners lacked standing to file the petition.29 Given that Petitioners were not prejudiced by the Division’s decision to treat the petition as an informal request for relief in lieu of addressing the disputed issue of whether Petitioners had standing, we see no need to address the issue.30 It is particularly unnecessary to resolve the question because the petition to deny PSI’s application to renew its license for Station WHG545 and the petition to deny PSI’s Auction No. 61 long-form application, which Petitioners undisputedly had standing to file, raised interrelated issues, which will thus be addressed in any event. 10. Petitioners also argue that the Division should not have allowed PSI to supplement its opposition to the petition to deny PSI’s application to renew its license for Station WHG545 to indicate that PSI had decided to abandon the Wailuku site and no longer sought to renew the authorization for it.31 Petitioners assert that it was inequitable for the Division to consider the late information supplied by PSI but not the information that Petitioners submitted regarding the site.32 They argue that the Division should have reached a conclusion regarding whether the Wailuku facility was ever constructed, rather than assuming that it had been.33 They also argue that, because the Wailuku site was not constructed, the license for Station WGH545 should be deemed to have canceled automatically.34 11. We first note that the Division did not assume that PSI constructed the Wailuku facility. 24 See id. (citing Paging Systems, Inc., Order, 20 FCC Rcd 8145, 8148-49 ¶ 11 (WTB PSCID 2005), aff’d, Order on Reconsideration, 21 FCC Rcd 5848 (WTB PSCID 2006), review pending). 25 Id. 26 Petition for Reconsideration (filed Aug. 7, 2006) (WHG545 Petition for Reconsideration). 27 Petition for Reconsideration (filed Sept. 5, 2006) (Auction No. 61 Petition for Reconsideration). 28 See WHG545 Petition for Reconsideration at 3-4 (citing, e.g., Mobex Network Services, LLC, Order, 18 FCC Rcd 12305, 12307 ¶ 5 (WTB PSPWD 2003)). But see Paging Systems, Inc., Memorandum Opinion and Order, 22 FCC Rcd 1294, 1296-97 ¶ 7 (WTB BD 2007) (holding that Petitioners lacked standing to file a petition to deny an application for PSI to assign a Broadband Radio Service license), recon. pending. 29 See Opposition to WHG545 Petition for Reconsideration at 3-4. 30 See AMTS Consortium, LLC, Order on Reconsideration, 22 FCC Rcd 1597, 1598 ¶ 4 (WTB MD 2007), review pending. 31 See WHG545 Petition for Reconsideration at 9-10; Auction No. 61 Petition for Reconsideration at 7. 32 See WHG545 Petition for Reconsideration at 13-14. 33 See id. at 7-8, 15-16; Auction No. 61 Petition for Reconsideration at 5-6. 34 See WHG545 Petition for Reconsideration at 10-12. Federal Communications Commission DA 07-1087 5 Rather, it concluded that it, in light of PSI’s representation that it no longer sought renewal of the authorization for the site, the issue did not need to be addressed in order to resolve the renewal application. Moreover, we agree with PSI that the Division was under no duty to reach a conclusion on an unnecessary issue.35 Nor do we believe that the supplement should have been rejected as untimely because PSI arguably could have provided the information in its opposition rather than in a supplement filed after Petitioners filed their reply. As the Division noted, PSI’s choice to submit the information in a further pleading relating to the petition to deny, rather than as an amendment to the renewal application or an application to modify the license, should not be affect whether the Division could properly consider it.36 Finally, even if the Wailuku site was not constructed, it does not follow that the license for Station WGH545 should be deemed to have canceled automatically.37 As the WHG545 Order explained, and Petitioners do not dispute on reconsideration, the Honolulu site could be deemed to satisfy the “substantial navigational area” requirement of former Section 80.475(a).38 12. Petitioners also reassert that they would have bid more aggressively on the Block B license for Hawaii had the license for Station WHG545 been terminated, and assert that forewarning them of their due diligence obligation should not require them to uncover PSI’s alleged fraud.39 As the Division noted, however, Petitioners were solely responsible for their own due diligence, and the Commission made no representations or guarantees regarding the accuracy or completeness of incumbency information in the licensing database.40 Petitioners’ current argument goes only to the degree of uncertainty that they believe they encountered, but does not change these basic notions.41 13. Petitioners also argue that PSI’s misrepresentations regarding the status of Station WHG545 demonstrate that PSI should be disqualified to hold a Commission license due to a lack of character qualifications.42 We note, however, that the petitions to deny did not present this argument. 35 See Opposition to WHG545 Petition for Reconsideration at 7; Opposition to Auction No. 61 Petition for Reconsideration at 7 (citing Wireless Telecommunications Bureau Dismisses Petitions as Moot, Public Notice, 16 FCC Rcd 3848 (WTB CWD PRB 2001); Rosebud Sioux Tribe, Order, 12 FCC Rcd 1333 (WTB CWD 1997)). 36 See WHG545 Order, 21 FCC Rcd at 7727 ¶ 9. 37 See Quatron Communications, Inc., Memorandum Opinion and Order, 15 FCC Rcd 4749, 4752 ¶ 10 (2000) (failure to construct one site on multi-site license does not cause entire license to terminate for failure to construct). 38 See WHG545 Order, 21 FCC Rcd at 7229 n.41. Petitioners do dispute the Division’s conclusion that Part 80 does not provide that a commercial mobile radio service station will not be deemed to have commenced operation until it provides service to at least one unaffiliated party, see id., but our review of the decisions Petitioners cite reveals that they do not address the issue. See WHG545 Petition for Reconsideration at 19 (citing Warren C. Havens, Order, 18 FCC Rcd 7006 (WTB PSPWD 2003); Warren C. Havens, Letter, 17 FCC Rcd 15903 (WTB PSPWD 2002)). 39 WHG545 Petition for Reconsideration at 13-14; Auction No. 61 Petition for Reconsideration at 5-6. 40 See Auction No. 61 Order, 21 FCC Rcd at 8800 ¶ 12. 41 Cf. Smith-Bagley, Inc. & WWC License L.L.C., Order, 20 FCC Rcd 2361, 2373-74 ¶ 30 (WTB MD 2005) (“The due diligence public notices remind potential bidders in the competitive bidding process of two things. The first is that certain filings may remain pending before the Commission after the auction closes, the resolution of which may affect the availability of the spectrum in any given market. Second, the Commission makes no representations or guarantees regarding the accuracy or completeness of information in its databases, including the accuracy or completeness of information that incumbent licensees have provided. The public notices are intended to seek out information from the public to correct errors in the Commission databases and to assist potential bidders in taking steps that might help them determine the actual value of the white space in the market in which they are bidding. Importantly, the Commission issues subsequent due diligence public notices to update information regarding both filings and corrections to database information as that information becomes available before the auction. We find no reason, and McElroy provides none, to mandate that suggestions intended to assist potential bidders in the context of competitive bidding be used as a pre-condition to eligibility as an applicant in this proceeding.”). 42 See WHG545 Petition for Reconsideration at 8-9; Auction No. 61 Petition for Reconsideration at 8. Federal Communications Commission DA 07-1087 6 Rather, the petitions to deny asserted that various alleged transgressions by PSI “had anti-competitive effects for bidding on the License in Auction No. 61”43 and “led to false encumbering of the geographic spectrum that gave PSI an unfair competitive advantage in Auction No. 61.”44 This argument relates to PSI’s actions with respect to its license for Station WHG545. The body of the petitions to deny did not argue that PSI lacks the character to hold any Commission license, as the petitions for reconsideration now ask us to hold.45 We therefore conclude that the Division did not err in not addressing an argument not presented in the petitions to deny.46 We also reject the suggestion that the Division’s decision to deny PSI’s petition to deny Petitioners’ request to partially assign AMTS frequencies to Northeast Utilities Service Company47 demonstrates a pattern of frivolous tactics designed to delay and harm the Petitioners and thus calls PSI’s character qualifications into question.48 Nothing in that order, or the recent decision affirming that order, indicates that PSI’s positions therein were frivolous. 14. Finally, Petitioners argue that the subsequent filing by PSI and MC/LM of virtually identical petitions to deny ACL’s and ITL’s Auction No. 61 long-form applications is additional evidence that PSI and MC/LM colluded or conspired against them.49 We conclude, however, that the fact that PSI and MC/LM both opposed Petitioners’ applications, and coordinated these and other post-auction pleadings, does not evidence improper collusion or conspiracy.50 43 See Petition to Deny FCC File No. 0002296956 at 2. 44 See Petition to Deny FCC File No. 0002257822 at 7. 45 The petitions to deny made only sparse references to PSI’s character qualifications. Specifically, the last sentence of the “Conclusion” section of the petition to deny PSI’s Auction No. 61 long-form application states that “[t]he Commission should also proceed to punish PSI for its auction and licensing violations per its established precedents regarding misrepresentations, including rescission of its licenses, penalties and fines and disqualification as a licensee.” Petition to Deny File No. 0002296956 at 8. This single, late reference is not sufficient to raise a character issue. Cf. Echostar Communications Corporation, Hearing Designation Order, 17 FCC Rcd 20559, 20579 n.139 (2002) (“Commission precedent often requires past FCC rule violations to be coupled with legitimate ‘evidence in the record to contravene the Applicants’’ assertions that they are currently running their businesses in a ‘responsible matter’ in order to raise a real character issue.”) (quoting Southern New England Telecommunications Corporation, Memorandum Opinion and Order, 13 FCC Rcd 21292, 21306-07 ¶ 27 (1998)). The petition to deny PSI’s application to renew its license for Station WHG545 mentions the issue only in the context of incorporating by reference Petitioners’ petition for reconsideration of the denial of Petitioners’ petition to deny PSI’s Auction No. 57 long-form application. See Petition to Deny FCC File No. 0002257822 at 2. The Division subsequently held, however, that the character issue was not adequately raised in that proceeding. See Paging Systems, Inc., Order on Reconsideration, 21 FCC Rcd 5848, 5851 ¶ 9 (WTB PSCID 2006), review pending. 46 With respect to the merits of the argument, we note that Havens has raised similar arguments with respect to another AMTS licensee that he contends lacks the requisite character because it filed defective activation notices, renewal applications, and similar filings with respect to its site-based AMTS licenses, and that the Division previously held that these allegations (even assuming that the filings were inaccurate) do not raise a character issue meriting denial of a license application. See Mobex Network Services, LLC, Order, 20 FCC Rcd 17957, 17957-58 ¶ 2 (WTB PSCID 2005) (citing Mobex Network Services, LLC, 19 FCC Rcd 24939, 24941-43 ¶¶ 6-9 (WTB PSCID 2004), aff’d, Order on Reconsideration, 22 FCC Rcd 665 (WTB MD 2007), review pending), aff’d, Order on Reconsideration, 22 FCC Rcd 665 (WTB MD 2007), review pending. 47 See AMTS Consortium, LLC, Order, 20 FCC Rcd 17975 (WTB PSCID 2005), aff’d, Order on Reconsideration, 22 FCC Rcd 1597 (WTB MD 2007), review pending. 48 See Auction No. 61 Petition for Reconsideration at 4. 49 See id. at 2. 50 See Sarkes Tarzian, Inc., Memorandum Opinion and Order, 65 F.C.C. 2d 127, 127 n.4 (1977) (“The reply asserts that two licensees ‘conspired to defeat’ petitioners, pointing to identical language used by two applicants' pleadings in disputing petitioner's individual standing. However, there is no Commission rule or policy precluding two or more applicants from retaining the same counsel-as occurred here-or from filing consolidated pleadings.”). Federal Communications Commission DA 07-1087 7 15. Conclusion. After reviewing the instant petitions, we believe that Petitioners have failed to demonstrate that the Auction No. 61 Order or the WHG545 Order contains a material error or did not fully and fairly consider the arguments raised therein. Petitioners also fail to present additional material facts not known or not existing until after their last opportunity to present such matters. In view of the foregoing, we deny Petitioners’ petitions for reconsideration and affirm the actions denying Petitioners’ petitions to deny the applications. 16. Accordingly, IT IS ORDERED pursuant to Sections 4(i), 303(r), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, and Section 1.106 of the Commission’s Rules, 47 C.F.R. § 1.106, that the petitions for reconsideration filed by Warren C. Havens, Intelligent Transportation & Monitoring Wireless LLC, AMTS Consortium, LLC, Telesaurus-VPC, LLC, and Telesaurus Holdings GB LLC on August 7 and September 5, 2006 ARE DENIED. 17. IT IS FURTHER ORDERED that the Request for Correction of Clerical and Other Errors in Order filed by Paging Systems, Inc. on July 24, 2006 is GRANTED IN PART and DENIED IN PART to the extent indicated above. 18. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission’s Rules, 47 C.F.R. §§ 0.131, 0.331. FEDERAL COMMUNICATIONS COMMISSION Roger S. Noel Chief, Mobility Division Wireless Telecommunications Bureau