Federal Communications Commission	DA 23-215


Before the
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554


In the Matter of

VERDE SYSTEMS, LLC
Assignor

WEC BUSINESS SERVICES, LLC
Assignee

Application to Assign the Licenses for AMTS Stations WQCP808 and WQCP815
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File No. 0010053134

ORDER

Adopted:  March 14, 2023	Released:  March 14, 2023

By the Chief, Mobility Division, Wireless Telecommunications Bureau:

I. INTRODUCTION
1. We have before us an application to partially assign, through partitioning and disaggregation, the licenses for Automated Maritime Telecommunications System (AMTS) stations WQCP808 (AMT005-Great Lakes) and WQCP815 (AMT004-Mississippi River) from Verde Systems, LLC (Verde) to WEC Business Services, LLC (Application). FCC File No. 0010053134 (filed May 23, 2022) (Application).  The Application appeared on Accepted for Filing Public Notice on June 1, 2022.  See Wireless Telecommunications Bureau Assignment of License Authorization Applications, Transfer of Control of Licensee Applications, and De Facto Transfer Lease Applications, and Designated Entity Reportable Eligibility Event Applications Accepted For Filing, Report No. 16837, at 2 (WTB rel. June 1, 2022).
  We also have a petition to deny or dismiss the Application, accompanied by requests for other relief, filed by Warren Havens (Havens) on June 15, 2022 (Petition). The Petition is captioned “(A) PETITION TO DENY OR DISMISS UNDER (1) FCC RULES 1.939, 1.48, and 1.41, and EX PARTE RULES; (2) 47 USC §§ 309, 310, and 405; (2)[sic] FRAUD; (4) FCC ULTRA VIRES ACTIONS; (5) CONSTITUTIONAL VIOLATIONS; and (6) OTHER BASIS.  And (B) PETITION FOR A DECLARATORY RULING ON FCC ARBITRATION (Separately filed).”  We refer to it as the Petition throughout this order in both the text, including the ordering clauses, and the footnotes.  In addition, we treat supplemental filings made by Havens after the initial filing of the Petition as part of the Petition.  Verde Systems LLC (Verde) filed an Opposition to Petition to Deny on June 27, 2022. 
  We conclude that Havens lacks standing to challenge the Application and therefore dismiss the Petition.  Independent of Havens’s standing, we grant the Application and an associated request to waive certain part 80 rules (Waiver Request).
II. BACKGROUND
2. It is useful, by way of background, to briefly discuss some antecedent events related to this Application.  Over time, various Havens-controlled entities – one of which is Verde – acquired numerous licenses across multiple services.  A former partner of Havens, Dr. Arnold Leong, sued him in the Superior Court of Alameda County, California (Court) regarding their respective ownership interests in these various entities and the conduct of the partnership between Havens and Leong.  On November 16, 2015, the Court entered an order appointing Susan L. Uecker (Receiver) as Receiver to take control of all of Havens’s license-holding entities, including Verde. See Arnold Leong v. Warrens Havens, et al., Case No. 2002-070640, Order Appointing Receiver After Hearing and Preliminary Injunction (Nov. 16, 2015), aff’d, Case No. A147027, 2017 WL 3633282 (Cal. Ct. App. Aug. 23, 2017).  After the California Court of Appeal affirmed the Court’s order appointing the Receiver to take control of these entities, and the Supreme Court of California denied review, the Court’s decision that the Receiver should control the entities became final.  See Leong v. Havens, Case Nos. A149113 et al., 2019 WL 5557524, at *2 (Cal. Ct. Ap. Oct. 23, 2019).
  In early 2016, the Commission accepted applications filed by the Receiver for the involuntary transfer of control of their licenses to her, pursuant to the court order, and no timely petition for reconsideration of these acceptances was filed. See ULS File Nos. 0007060862, 0007060898, 0007061808, 0007061828, 0007061847, 0007061898 (all filed Dec. 17, 2015).  Because no petition for reconsideration was filed within the statutorily mandated 30-day period beginning with public notice of the acceptance of the applications, the Commission’s action is administratively final.  See 47 U.S.C. § 405.  Havens, however, has filed numerous pleadings collaterally attacking the acceptance of the applications.  A non-exhaustive list of the pleadings is available at https://wireless2.fcc.gov/UlsApp/ApplicationSearch/applAdminPleadings.jsp?applID=9367669.
  As a consequence, all of the licenses that were issued to Verde and the other entities formerly controlled by Havens are now under the exclusive control of the Receiver.  Further details about this litigation and the appointment of the Receiver are available in the Wireless Telecommunications Bureau’s (Bureau) decision rejecting Havens’s various petitions challenging Leong’s qualifications to hold Commission licenses and the appointment of the Receiver. See Skybridge Spectrum Foundation, Telesaurus Holdings GB LLC, Verde Systems LLC, Environmentel LLC, Environmentel-2 LLC, Intelligent Transportation & Monitoring Wireless LLC, V2G LLC, EB Docket No. 11-71, Memorandum Opinion and Order, DA 22-376 (WTB rel. Apr. 11, 2022) (Bureau Order). 
  The Bureau Order also granted Leong’s declaratory ruling to remove any uncertainty about the Receiver’s ability to effectuate assignment of the licenses to third parties in order to distribute the proceeds in accordance with the court’s judgment. See id.  Pursuant to the Court’s judgment, these proceeds are to be distributed between Leong and Havens.  We have previously ordered that any proceeds intended for Havens be placed into escrow pending the resolution of the Commission’s assessment of Havens’s character qualifications to be a licensee.  See id. at para. 34.  

3. In the current Application, the Receiver reached agreement with WEC Business Services, LLC (WEC) to partition and disaggregate the licenses for AMTS stations WQCP808 and WQCP815.  The Application includes a “Description of the Transaction and Public Interest Statement” (PI Statement), in which the parties explain that WEC is obtaining the 217.025-217.5 MHz and 219.025-219.5 MHz frequencies of the licenses in certain counties in the midwestern United States. PI Statement at 1, available at https://wireless2.fcc.gov/UlsEntry/attachments/attachmentViewRD.jsp?applType=search&fileKey=2020428348&attachmentKey=21487142&attachmentInd=applAttach.
  The parties note that “WEC is a wholly owned subsidiary of WEC Energy Group, one of the nation's largest electric generation and distribution and natural gas delivery companies,” providing energy services to more than 4.6 million customers in Wisconsin, Illinois, Michigan and Minnesota. Id. 
  They add that WEC already holds Commission licenses authorizing its existing private wireless communications network, and so has previously been deemed qualified to be a Commission licensee. Id.
  The applicants also represent that WEC will utilize the assigned spectrum for Supervisory Control and Data Acquisition (SCADA) operations, which will enhance public safety. Id.  WEC’s SCADA system “enables it to  monitor generation and distribution operations in real time; quickly identify potential or actual problems (such as outages); adjust voltages and deenergize lines to efficiently manage load levels; prevent and contain outages, and ensure the safety of the public (e.g., from downed power lines, etc.),…”  Id.
  To facilitate the use of the part 80 AMTS spectrum for operations to be integrated with its existing SCADA operations, which are governed by the part 90 rules applicable to private land mobile radio systems, WEC requests waivers of several part 80 rules. See “Request for Rule Waivers,” attached to the Application (Waiver Request).

4. In his 103-page Petition, Havens argues that his standing to file the Petition “is abundantly clear in FCC records for decades” and is supported by the Bureau Order, an email exchange with the Commission’s Office of General Counsel, and a pleading he filed with the Bureau. Petition at i; see also id. at 34-35.
  He also argues, inter alia, that he should be accorded a period of at least 30 days after he is personally served with certain documents before a petition to deny is due; Id. at i-ii.
 that the Application is defective in part because it was not served on him; Id. at ii.
 that his dispute with the applicants should be resolved through arbitration before the Commission; Id.
 and that unnamed Commission staff have colluded with his state court adversary to commit a host of Constitutional, statutory, and regulatory violations that have harmed him. Id. at iii-iv.
  
III. DISCUSSION
5. We find that Havens lacks standing to pursue his Petition, and we therefore do not address his arguments on the merits.  Commission precedent clearly establishes that, to demonstrate party-in-interest standing, a petitioner to deny an application must allege facts sufficient to demonstrate that grant of the subject application would cause it to suffer a direct injury. See Wireless Co., L.P., et al., Order, 10 FCC Rcd 13233, 13235 ¶ 7 (WTB 1995) (Wireless Co.), citing Sierra Club v. Morton, 405 U.S. 727, 733 (1972).
  For these purposes, the injury must be concrete and particularized and also actual or imminent, not conjectural or hypothetical. Conference Group, LLC v. FCC, 720 F.3d 956 (D.C. Cir. 2013), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
  In addition, a petitioner must demonstrate a causal link between the claimed injury and the challenged action. Wireless Co., 10 FCC Rcd at 13235 ¶ 7.
  To demonstrate a causal link, the petitioner must establish that the injury can be traced to the challenged action and the injury would be prevented or redressed by the relief requested. Id.
  It is the petitioner’s burden to make the necessary showings. See T-Mobile License LLC, 29 FCC Rcd 6350, 6355  ¶ 12 (2014); see also Lujan, 504 U.S. at 561 (explaining that, in the parallel context of a party invoking federal judicial jurisdiction, “[t]he party invoking . . . jurisdiction bears the burden of establishing [the] elements” of standing).
  
6. Havens does not satisfy his burden under the standard set forth above.  He has not alleged facts sufficient to show that he will suffer a direct injury as a result of grant of the Application, or explained why denying the Application would prevent or redress any such injury.  Havens no longer controls the licenses at issue in the Application.  Both the Court’s decision appointing the Receiver and the FCC’s decision to allow involuntary transfer of the licenses to the Receiver are now final. See supra para. 2 & notes 3, 4.
  Under the circumstances, it is not apparent (and Havens does not explain) why granting the Application here to partially assign the licenses for WQCP808 and WQCP815 from Verde (an entity Havens does not control) to WEC (a different entity Havens does not control) would injure Havens. Cf. Kapur v. FCC, 991 F.3d 193, 197 (D.C. Cir. 2021) (petitioners lacked standing when, even if they prevailed on all claims, they would at best wind up minority owners of a license-holding entity, without power to prevent an equivalent license transfer in the future). 

7. Insofar as Havens collaterally attacks the judicial and regulatory proceedings that resulted in the Receiver’s acquiring control of the licenses that Havens formerly controlled, we are not empowered to review those already final determinations here. See, e.g., Petition at 26-27, 29, 31-34.
  And, in any event, as the agency has suggested in other contexts, “untimely challenges to actions in other proceedings” cannot “form the basis for a cognizable injury directly caused from [a] grant” of the Application here. Choctaw Holdings LLC, Order, 33 FCC Rcd 1783, 1787, para. 16 (WTB MD 2018) (Choctaw), recon. pending.
   
8. Havens additionally cites a prior ruling in which an entity that he controlled was found to have standing to file a petition to deny based on potential competitive harm to its licensed operations, apparently suggesting that the same reasoning applies here. See Petition at 34-35, citing Mobex Network Services, LLC, 18 FCC Rcd 12305 (WTB PSPWD 2003) and Mobex Network Services, LLC, 18 FCC Rcd 12309 (WTB PSPWD 2003).
  Such an assertion, however, ignores the fact that Havens is no longer in control of any Commission licensee See, e.g., Helen Wong-Armijo, Skybridge Spectrum Foundation, Telesaurus Holdings GB, LLC, Order, 32 FCC Rcd 9458, 9471, para. 29 (WTB MD 2017).
 and so he can suffer no competitive harm from this or any other assignment of AMTS (or other) spectrum licenses; Havens’s lack of control refutes any claim that he has a present interest that would be injured by assignment of a license. See, e.g., Choctaw, 33 FCC Rcd at 1786-87, paras. 15-16 (WTB MD 2018) (holding that Havens and Polaris PNT PBC – an entity Havens formed after the entities he owned in partnership with Leong were placed into receivership – lacked standing to challenge the assignment of certain AMTS licenses when “[n]either Havens nor Polaris [held] a Commission license,” and they thus could not contend that assignment would cause them “competitive harm of any sort, direct or otherwise” (footnote omitted)); see also id. at 1786 n.38 (“The Receiver is now the sole authorized representative before the Commission of the entities formerly controlled by Havens, and Havens individually has no standing to assert duplicative interests”); Maritime Communications/Land Mobile, LLC, Debtor-in-Possession, Order, 32 FCC Rcd 3907, 3910-12, paras. 8-11 (holding that Havens and Polaris PNT PBC did not have standing to petition to dismiss or deny four applications to renew geographic AMTS licenses, noting that the petitioners did not demonstrate competitive harm and rejecting their arguments that their standing could be predicated on a showing of standing in other proceedings and that they should be allowed to supplement their showing of standing in the instant proceeding)) (WTB MD 2017), recon. pending.

9. We note, too, that, to the extent Havens purports to challenge the Application “for [the] Skybridge [Spectrum Foundation]” based on Skybridge’s asserted control of certain licenses and Havens’s control of Skybridge, Petition at 35.
 the Court and the FCC have similarly divested Skybridge of its interest in those licenses.  Furthermore, shareholders are “generally prohibit[ed] . . . from initiating actions to enforce the rights of the corporation unless the corporation’s management has refused to pursue the same actions for reasons other than good-faith business judgment.” Franchise Tax Bd. v. Alcan Aluminium, 493 U.S. 331, 336 (1990). “[N]ot even a sole shareholder . . . has standing in the usual case to bring suit in his individual capacity on a claim that belongs to the corporation.”  Cherry v. FCC, 641 F.3d 494, 497 (D.C. Cir. 2011); see also KAXT, LLC, Memorandum Opinion and Order, 35 FCC Rcd 638, 641, para. 6 (2021) (shareholders with noncontrolling ownership interest lacked standing), appeal dismissed for lack of standing alternate grounds, Kapur, 991 F.3d 193.

10. In addition, Havens’s arguments that certain documents and emails demonstrate his standing are without merit.  As noted supra, Havens relies on the Bureau Order, which addressed petitions for declaratory ruling filed by himself and Leong, to establish standing. Petition at i.  Havens’s sole clear reference to the Bureau Order, which he refers to as “DA 22-376,” is in a single sentence in the introductory section of the Petition, in which Havens states that his standing to file the Petition “is abundantly clear in FCC records for decades, and most recently made additionally clear in DA 22-376….”  In the section of the Petition devoted specifically to his arguments regarding standing, however, Havens simply states in the opening sentence that “This [referring to his standing] is sufficiently asserted in the Introduction and Summary Above.”  He then provides a brief discussion of competitor standing, followed by the statement that “Standing is further shown by the WB Order captioned above.”  See Petition at 34-35.
  But Havens fails to offer any analysis as to why that order supports his assertion of standing here or anywhere.  Indeed, the Bureau Order did not discuss Havens’s standing at all.  Furthermore, the Bureau’s willingness to resolve Havens’s petitions for declaratory ruling cannot be read to establish his standing in any other context because “the Commission can and does adjudicate petitions for declaratory rulings . . . when the requirements of the standing and ripeness doctrines are not strictly met.” American Services Communications Inc., Memorandum Opinion and Order, 14 FCC Rcd 21579, 21589, para. 19 (1999), citing Operator Services Providers of America Petition for Expedited Declaratory Ruling, Memorandum Opinion and Order, 6 FCC Rcd 4475 (1991).

11. Havens’s additional arguments that he has established his standing to file the Petition based on email to and from the Commission’s Office of General Counsel and on his own recent filing in another proceeding are frivolous.  The relevant email exchange, Havens tells us, is contained within the 807-page “Exhibit 1,” filed separately from the Petition. Petition at i.
  While there appear to be some email snippets as a small percentage of its content, Havens does not explain to which emails he is referring or how any such email supports his standing to file the Petition. To the extent Havens may be suggesting that the Office of General Counsel’s acceptance as timely of a pleading relating to one of his petitions for declaratory ruling acknowledges his standing to file a petition to deny, that argument fails because, as discussed above, the strict standing requirements that govern petitions to deny do not apply to declaratory ruling proceedings.  See E-mail from David Senzel, Attorney-Advisor, Office of General Counsel, to Warren Havens (May 13, 2022 at 2:15 p.m.) (page 305 of Exhibit 1).  Furthermore, the exchange in question addresses timeliness and compliance with filing procedures, not standing.
  And Havens’s contention that he has established his standing in this proceeding by virtue of a filing he has made in another proceeding is equally unavailing. Petition at i, 35.  The referenced pleading, a Conditional Petition [for] Reconsideration Under 47 USC § 405 of FCC 18-168 Errata Copy, attached as Exhibit 2 to the Petition (Exhibit 2), seems to argue, without meaningful discussion, that the “Polaris entities,” who are not petitioners in the instant proceeding, should have been accorded standing in that separate proceeding as “statutory public benefit (‘public interest’) entities focused on radio spectrum services.”  Exhibit 2 at 7 n.6.
  For all of these reasons, Havens’s Petition is dismissed.  
12. Independently of Havens’s Petition, we have reviewed the Application and conclude that grant of the Application will serve the public interest.  Therefore, we turn to WEC’s Waiver Request, which we grant for the reasons discussed below.
13. Section 1.925(b)(3) of the Commission’s rules states that the Commission may grant a waiver when either (i) “[t]he underlying purpose of the rule(s) would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest,” or (ii) “[i]n view of unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative.” 47 CFR § 1.925(b)(3).

14. We find that grant of the requested Part 80 rule waivers, with conditions proposed by WEC, is warranted under the first prong of this standard.  Both in the PI Statement and in the Waiver Request, WEC has explained the significant public safety and efficiency benefits of integrating the assigned AMTS spectrum into its existing part 90 private land mobile radio operations, in particular its SCADA system. See PI Statement at 1-2; Waiver Request at 1-2.
  It also has explained why the requested waivers are necessary to that effort. See Waiver Request at 4-5.
  The Commission has permitted the use of AMTS spectrum for private land mobile communications under certain conditions, MariTel, Inc. and Mobex Network Services, LLC, Report and Order, 22 FCC Rcd 8971, 8976-79, paras. 8-12 (2007), subsequent history omitted.
 established specific guidance regarding requests for part 80 waivers in connection with applications to use AMTS frequencies for private land mobile communications, Id. at 8986, para. 26.
 and has considerable precedent for granting such part 80 waivers to electric utilities and other critical communications infrastructure entities. See, e.g., Vermont Transco, Order, 26 FCC Rcd 8820 (WTB MD 2011); PHI Service Company, Order, 29 FCC Rcd 8176 (WTB MD 2014); Chesapeake Operating, Inc., Order, 29 FCC Rcd 9272 (WTB MD 2014); National Railroad Passenger Corporation (d/b/a Amtrak), Order, 30 FCC Rcd 2038 (WTB MD 2015).
  The WEC request falls squarely within the parameters of that precedent.  The WEC request seeks waivers of the same rules and for the same reasons as other applicants whose requests have been granted in full. In addition, we believe that grant of the requested waiver relief is necessary to ensure that the spectrum is efficiently put to its best use in the near term.

15. We also recognize that WEC has committed to implement measures to protect other users of the AMTS band and “operate its proposed base stations at low output power and ERP levels that are well below the maximum threshold permitted for AMTS subscriber units.” Waiver Request at 5.
  WEC says that it will employ directional antennas on remote units to avoid exceeding the permitted signal strength, and that its proposed base stations will not be located within 120 kilometers of any incumbent co-channel site-based AMTS base stations. Id. 
  WEC also commits to not providing service to maritime vessels. Id.
  Finally, WEC expressly acknowledges the Commission’s interference protection criteria for Channel 10 and Channel 13 DTV stations and agrees to observe those criteria. Id.  See 47 C.F.R. § 80.215(h).
  We condition our grant of WEC’s requested waiver of section 80.385(a)(2) of the Commission’s rules – a waiver that allows WEC to operate base stations and remote units on both the AMTS coast station frequencies (217-218 MHz) and the AMTS ship station frequencies (219-220 MHz) – on WEC’s continued compliance with the foregoing commitments.
16. We accordingly grant WEC waivers of the following part 80 rules, as requested:  sections 80.92(a) (which requires Part 80 licensees to monitor a frequency prior to transmitting); 47 CFR § 80.92(a).
 80.105 (which requires coast stations to receive calls from ship and aircraft stations); Id. § 80.105.
 80.106 (which requires coast stations to exchange radio communications with ship and aircraft stations); Id. § 80.106.
 80.123(a) (which requires AMTS land stations to secure a letter authorizing the land station to communicate with the coast station); Id. § 80.123(a).
 80.123(b) (which requires coast stations to afford priority to marine-originating communications); Id. § 80.123(b).
 80.123(f) (which provides that AMTS land stations may only communicate with public coast stations); Id. § 80.123(f).
 and, as conditioned above, 80.385(a)(2) (which divides AMTS spectrum into coast (base) station frequencies (217-218 MHz) and ship (mobile) station frequencies (219-220 MHz)). Id. § 80.385(a)(2).

IV. CONCLUSION AND ORDERING CLAUSES
17. For the reasons discussed above, we dismiss the Petition for lack of standing, grant the Application, and grant the Waiver Request.
18. ACCORDINGLY, IT IS ORDERED that, pursuant to sections 4(i) and (j), 303(r), 309, and 310(d) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 303(r), 309, 310(d), and section 1.939 of the Commission’s rules, 47 CFR § 1.939, the petition to deny filed on June 15, 2022 by Warren Havens, IS DISMISSED. 
19. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and (j), 303(r), 309, and 310(d) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 303(r), 309, 310(d), the application filed on May 23, 2022 to assign licenses from Verde Systems, LLC to WEC Business Services, LLC, FCC File Number 0010053134, IS GRANTED.
20. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and (j) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), and sections 1.3 and 1.925 of the Commission’s rules, 47 CFR §§ 1.3, 1.925, the waiver request filed on May 23, 2022 by WEC Business Services, LLC, IS GRANTED as conditioned in paragraph 15, herein. 
21. IT IS FURTHER ORDERED that, pursuant to sections 4(i) and (j), 303(r), 309, and 310(d) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 303(r), 309, 310(d), consent to this application is subject to all requirements, conditions and limitations set forth in Skybridge Spectrum Foundation, Telesaurus Holdings GB LLC, Verde Systems LLC, Environmentel LLC, Environmentel-2 LLC, Intelligent Transportation & Monitoring Wireless LLC, V2G LLC, EB Docket No. 11-71, Memorandum Opinion and Order, DA 22-376 (WTB rel. Apr. 11, 2022), including but not limited to the following: (1) the buyer must submit a sworn statement that Warren Havens will not be involved in the operations of the spectrum associated with this application; (2) the Receiver must file a sworn statement attesting that any proceeds of the sale intended for Havens will go into escrow, in accordance with all applicable state and local laws, pending the resolution of the Commission’s assessment of Havens’s character qualifications to be a licensee; and (3) post-closing of the transaction, the Receiver must file under seal an accounting of the proceeds collected from the sale of the licenses involved.
22. This action is taken under delegated authority pursuant to sections 0.131 and 0.331 of the Commission’s rules, 47 CFR §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS  COMMISSION


Roger S. Noel
Chief, Mobility Division
Wireless Telecommunications Bureau
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