Federal Communications Commission      FCC 12-66
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Intelligent Transportation and Monitoring Wireless 
LLC and AMTS Consortium, LLC 
Petition for Declaratory Ruling and Motion for 
Stay of Auction No. 65 
Auction 65 Public Notice Regarding Long Form/
FCC Form 601 Applications Accepted for Filing
Application of AC BidCo LLC for Authorization 
To Provide Air-Ground Radiotelephone Service in 
the 800 MHz Band
Application of LiveTV LLC for Authorization To 
Provide Air-Ground Radiotelephone Service in the 
800 MHz Band
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FCC File No. 0002653156
FCC File No. 0002658043
MEMORANDUM OPINION AND ORDER
Adopted:  June 20, 2012 Released:  June 21, 2012
By the Commission:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we deny an application for review of the Wireless 
Telecommunications Bureau’s denial of a Petition for Declaratory Ruling filed jointly by two Auction 65
applicants controlled by Warren Havens, as well as their challenge to the auction itself.
1
  The two 
applicants seek reversal of a series of staff-level decisions responding to their request for clarification of 
section 22.853 of our rules.  This rule prohibits any individual or entity from holding a controlling interest 
in more than three megahertz of spectrum in the 800 MHz commercial aviation Air-Ground 
Radiotelephone Service frequency bands, the spectrum available in Auction 65.  The two applicants 
further seek to overturn the results of the auction, and they challenge the long-form applications of the 
winning bidders.  We find that the staff correctly rejected the applicants’ earlier requests for relief and 
conclude that further clarification of section 22.853 is unnecessary and that the challenge to Auction 65 is 
without merit.
                                                          
1
See Intelligent Transportation and Monitoring Wireless LLC and AMTS Consortium LLC, Application for 
Review, filed April 8, 2007 (“Application for Review”).
Federal Communications Commission      FCC 12-66
II. BACKGROUND
2. On February 22, 2005, the Commission released the Air-Ground Order, in which it adopted a 
flexible regulatory approach to determine the future band configuration of the four megahertz of spectrum 
in the 800 MHz commercial Air-Ground Radiotelephone Service.
2
  Based on the band configuration 
proposals submitted by interested parties in the proceeding, the Commission decided to assign nationwide 
air-ground licenses under one of three alternative band configurations, to be determined by the band plan 
receiving the highest gross aggregate bid in an auction.
3
  In light of specific circumstances relating to this 
spectrum, the Commission prohibited any party from obtaining a controlling interest, either at auction or 
by a post-auction transaction, in more than three megahertz of spectrum in the 800 MHz air-ground band,
4
thereby preventing a party from holding a controlling interest in more than one of the two licenses offered 
in Auction 65.
5
3. The Commission incorporated this eligibility restriction, along with guidance for determining 
controlling interest, into its rules for the Air-Ground Radiotelephone Service as section 22.853:
6
No individual or entity may hold, directly or indirectly, a controlling interest in licenses 
authorizing the use of more than three megahertz of spectrum (either shared or exclusive) 
in the 800 MHz commercial aviation Air-Ground Radiotelephone Service frequency 
bands (see § 22.857). Individuals and entities with either de jure or de facto control of a 
licensee in these bands will be considered to have a controlling interest in its license(s). 
For purposes of this rule, the definitions of “controlling interests” and “affiliate” set forth 
in paragraphs (c)(2) and (c)(5) of § 1.2110 of this chapter shall apply.
7
4. On December 9, 2005, the Commission released the Air-Ground Reconsideration Order and
Report and Order, resolving petitions for reconsideration of the Air-Ground Order and adopting
competitive bidding rules for the 800 MHz commercial Air-Ground Radiotelephone Service.
8
  On January 
10, 2006, the Wireless Telecommunications Bureau (“Bureau”) announced that Auction 65, the auction of 
                                                          
2
Amendment of Part 22 of the Commission’s Rules to Benefit the Consumers of Air-Ground Telecommunications 
Services, Biennial Regulatory Review – Amendment of Parts 1, 22, and 90 of the Commission’s Rules, Amendment 
of Parts 1 and 22 of the Commission’s Rules to Adopt Competitive Bidding Rules for Commercial and General 
Aviation Air-Ground Radiotelephone Service, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 
4403, 4403 ¶ 1 (2005) (“Air-Ground Order”). 
3
Id. at 4405-06 ¶ 1, 4418-22 ¶¶ 24-32. 
4
Id. at 4423-27 ¶¶ 37-44.   
5
Id. at 4405-07 ¶ 1, 4420-21 ¶ 29, 4426-27 ¶ 43.  The Commission also requested comment on competitive bidding 
rules for the 800 MHz commercial Air-Ground Radiotelephone Service.  Id. at 4464-69 ¶¶ 169-79.
6
Id. at 4482.  See id. at 4427 ¶ 44; 47 C.F.R. § 1.2110(c)(2), (c)(5).
7
47 C.F.R. § 22.853.
8
Amendment of Part 22 of the Commission’s Rules to Benefit the Consumers of Air-Ground Telecommunications 
Services, Biennial Regulatory Review – Amendment of Parts 1, 22, and 90 of the Commission’s Rules, Amendment 
of Parts 1 and 22 of the Commission’s Rules to Adopt Competitive Bidding Rules for Commercial and General 
Aviation Air-Ground Radiotelephone Service, Order on Reconsideration and Report and Order, 20 FCC Rcd 19663 
(2005). 
Federal Communications Commission      FCC 12-66
new licenses in the 800 MHz Air-Ground Radiotelephone Service, would begin on May 10, 2006, and 
sought comment on various procedures for the auction.
9
5. On February 21, 2006, the Bureau released its Auction 65 Procedures Public Notice,
announcing procedures and deadlines for applicants wishing to participate in Auction 65.
10
  The Bureau
explained that two nationwide commercial licenses in the 800 MHz band would be offered in each of 
three alternative band configurations
11
and that two licenses in only one of the three mutually 
incompatible band configurations would be awarded.
12
  The Bureau established a short-form application 
filing deadline of March 24, 2006, and an upfront payment deadline of April 17, 2006.
13
  On April 28, 
2006, the Bureau released a public notice identifying the nine bidders that had qualified to participate in 
Auction 65, among which were Intelligent Transportation and Monitoring Wireless LLC and AMTS 
Consortium LLC (together, the “Havens Parties”),
14
both controlled by Warren Havens.
15
6. Auctions Division Order.  On May 1, 2006, nine days prior to the scheduled start date for 
Auction 65, the Havens Parties filed a combined petition for declaratory ruling regarding Auction 65 and 
motion to stay the auction (“Petition for Declaratory Ruling” and “Motion for Stay”).
16
  They requested
an explanation of section 22.853 and portions of the Air-Ground Order discussing the license eligibility 
restriction, as well as a stay of the auction until at least 21 days after the release of a public notice 
providing the explanation or the release of any subsequent related public notice.  The Havens Parties
posed four questions about the license eligibility restriction. Two of the questions asked how the 
restriction would affect bidding agreements among otherwise qualified Auction 65 applicants,
17
and the 
other two questions concerned the meaning of “controlling interest” as used in section 22.853 and in the 
Air-Ground Order’s discussion of the license eligibility restriction.
18
7. On May 4, 2006, the Bureau released the Auction 65 Supplemental Procedures Public Notice,
explaining that the computerized competitive bidding system for Auction 65 would not select as 
provisionally winning more than one bid placed by any single applicant or by multiple applicants that, 
                                                          
9
“Auction of 800 MHz Air-Ground Radiotelephone Service Licenses Scheduled for May 10, 2006; Comment 
Sought on Reserve Prices or Minimum Opening Bids and Other Procedures for Auction No. 65,” Public Notice, 21 
FCC Rcd 4 (WTB 2006).
10
  “Auction of 800 MHz Air-Ground Radiotelephone Service Licenses Scheduled for May 10, 2006; Notice and 
Filing Requirements, Minimum Opening Bids, Upfront Payments and Other Procedures for Auction No. 65,” Public 
Notice, 21 FCC Rcd 1278 (WTB 2006) (“Auction 65 Procedures Public Notice”).  
11
Id. at 1280 ¶ 2, 1281 ¶¶ 5-6, 1303 ¶ 88, 1305 ¶ 101, 1312 ¶ 136.
12
Id. at 1281 ¶¶ 5-6, 1303 ¶ 88, 1312 ¶ 136.
13
Id. at 1300 ¶ 76, 1301 ¶ 81.
14
“Auction of 800 MHz Air-Ground Radiotelephone Service Licenses; 9 Bidders Qualified to Participate in Auction 
No. 65,” Public Notice, 21 FCC Rcd 4266, 4275-76 (WTB 2006).
15
See Auction 65 FCC Form 175 filed by AMTS Consortium LLC, file no. 0002543227, and Auction 65 FCC Form 
175 filed by Intelligent Transportation & Monitoring Wireless, file no. 0002543254.  See also Petition for 
Declaratory Ruling and Motion for Stay and Rescheduling of Auction 65 of Intelligent Transportation & Monitoring 
Wireless LLC and AMTS Consortium, LLC, filed May 1, 2006, at 4-5 n.6 (“Petition for Declaratory Ruling” and 
“Motion for Stay”).
16
Petition for Declaratory Ruling and Motion for Stay. 
17
Petition for Declaratory Ruling at 6, 8-9.
18
Id. at 6, 7-8, 9-10.
Federal Communications Commission      FCC 12-66
based on their short-form auction applications, shared a common controlling interest.
19
  The Bureau 
observed that the Havens Parties had reported on their short-form applications that they shared a common 
controlling interest.
20
8. The Havens Parties then filed a supplement to their Petition for Declaratory Ruling (“Petition 
Supplement”), dated May 8, 2006, contending that, although the Auction 65 Supplemental Procedures 
Public Notice had, “in minor part,” addressed the issues that they had raised in their Petition, it had raised 
additional questions requiring clarification.
21
  They claimed that the requested additional clarification 
would be subject to the requirements of the Administrative Procedure Act and said that, for this reason, 
they were now seeking a 30-day stay of the auction rather than the previously requested 21 days.
22
  The
Havens Parties also suggested for the first time that section 22.853 was, without the additional 
clarification or amendment they demanded, unconstitutionally vague and therefore unenforceable.
23
9. On May 9, 2006, the Auctions and Spectrum Access Division (“Auctions Division”) denied 
the Havens Parties’ Petition for Declaratory Ruling and dismissed their Motion for Stay.
24
The Auctions 
Division discussed the four questions raised in the Petition for Declaratory Ruling, noting that it would be 
premature to make any decision regarding the application of the rules to the particular circumstances of
the Havens Parties or any other applicants.
25
  The Havens Parties’ Petition Supplement, dated only the 
day before, was not directly addressed in the Auctions Division Order.
10. Bureau MO&O.  On May 10, 2006, the Havens Parties submitted a request for 
reconsideration of the Auctions Division Order (“Reconsideration Petition”) in which they argued that the 
Commission lacked authority to hold Auction 65, because, they said, the Auctions Division had failed to 
fully address their issues.
26
  Also on May 10, 2006, Auction 65 bidding began, with both Havens Parties 
participating.  The auction closed on June 2, 2006, with two winning bidders, AC BidCo LLC (“BidCo”) 
and LiveTV, LLC (“LiveTV”).
27
11. On August 7, 2006, the Havens Parties filed a “Petition for Clarification, and Action Deemed 
Appropriate, Under Sections 1.939, 1.2108, and 1.41” (“Auction 65 Applications Petition”) in which they 
                                                          
19
“Auction of 800 MHz Air-Ground Radiotelephone Service Licenses Scheduled for May 10, 2006; Clarification of 
Treatment of Bids by Bidders Sharing a Controlling Interest,” Public Notice, 21 FCC Rcd 5058, 5058-60 (WTB 
2006) (“Auction 65 Supplemental Procedures Public Notice”).
20
Id. at 5058 n.4.
21
AMTS Consortium LLC, and Intelligent Transportation and Monitoring Wireless LLC, Supplement to Petition for 
Declaratory Ruling, and Supplement and Amendment of Motion for Stay and Rescheduling of Auction 65 Expedited 
Action Requested (filed May 8, 2006) at 2 (“Petition Supplement”).
22
Id. at 5, 7, 9-10.
23
Id. at 5 and 10 & n.13.
24
Intelligent Transportation & Monitoring Wireless LLC and AMTS Consortium, LLC, Petition for Declaratory 
Ruling and Motion for Stay of Auction No. 65, Order, 21 FCC Rcd 5117 (WTB/ASAD 2006) (“Auctions Division 
Order”).
25
Id. at 5119-22 ¶¶ 7-13.
26
Intelligent Transportation & Monitoring Wireless LLC and AMTS Consortium, LLC, Response to and Informal 
Request for Reconsideration of Order Regarding Petition for Declaratory Ruling, and Supplement and Amendment 
of Motion for Stay and Rescheduling of Auction 65 Expedited Action Requested, filed May 10, 2006 
(“Reconsideration Petition”).
27
“Auction of 800 MHz Air-Ground Radiotelephone Service Licenses Closes; Winning Bidders Announced for 
Auction No. 65,” Public Notice, 21 FCC Rcd 6304, 6312 (2006).
Federal Communications Commission      FCC 12-66
reiterated their request for clarification of the rules as applied to Auction 65, “including with regard to the 
long forms of the parties who won Auction 65 licenses[,]” i.e., BidCo and LiveTV.
28
  The Havens Parties
attached and incorporated by reference their prior petitions and supplement in this proceeding.
29
  BidCo 
and LiveTV filed oppositions to the Auction 65 Applications Petition,
30
and the Havens Parties filed a 
reply.
31
12. The Bureau’s Mobility Division dismissed the Auction 65 Applications Petition on October 
31, 2006, determining that because the petition raised the same issues as did the pending Reconsideration 
Petition, the Bureau would address these Havens Parties’ concerns when it resolved the Reconsideration
Petition.
32
  The Commission concurrently issued a public notice granting the BidCo and LiveTV long-
form applications.
33
  On November 30, 2006, the Havens Parties sought reconsideration of the Mobility 
Division order (“Auction 65 Applications Reconsideration Petition”),
34
and BidCo and LiveTV filed 
oppositions.
35
  On March 9, 2007, the Bureau, in the Bureau MO&O, denied both the Reconsideration 
Petition and the Auction 65 Applications Reconsideration Petition.
36
13. Pending pleadings.  On April 8, 2007, the Havens Parties filed an application for review of 
the Bureau MO&O (“Application for Review”),
37
which we address today.  We also consider oppositions 
filed by LiveTV
38
and BidCo
39
and the Havens Parties’ reply to BidCo’s opposition.
40
                                                          
28
Intelligent Transportation & Monitoring Wireless LLC and AMTS Consortium LLC, Petition for Clarification, 
and Action Deemed Appropriate, Under Sections 1.939, 1.2108 and 1.41, filed Aug. 7, 2006 (“Auction 65 
Applications Petition”).
29
Id.
30
AC BidCo LLC, Opposition to Petition for Clarification, and Action Deemed Appropriate, filed Aug. 14, 2006; 
LiveTV, LLC, Opposition to Petition for Clarification and Action, filed Aug. 14, 2006.
31
Intelligent Transportation and Monitoring Wireless LLC and AMTS Consortium LLC, Reply to Oppositions to 
Petition for Clarification and Action Deemed Appropriate, Under Section 1.939, 1.2108 and 1.41, filed Aug. 21, 
2006.
32
Auction 65 Public Notice Regarding Long Form/FCC Form 601 Applications Accepted for Filing, Order, 21 FCC 
Rcd 13010, 13011-12 ¶¶ 5-7 (WTB/MD 2006).
33
“Wireless Telecommunications Bureau Grants 800 MHz Air-Ground Licenses, Auction No. 65,” Public Notice, 
21 FCC Rcd 13022 (WTB 2006).
34
See Intelligent Transportation & Monitoring Wireless LLC and AMTS Consortium LLC, Petition for 
Reconsideration, filed Nov. 30, 2006 (“Auction 65 Applications Reconsideration Petition”); FCC File Nos. 
0002653156, 0002658043.
35
AC BidCo LLC, Opposition to Petition for Reconsideration, filed Dec. 7, 2006, FCC File No. 0002653156; 
LiveTV, LLC, Opposition to Petition for Reconsideration, filed Dec. 12, 2006, FCC File No. 0002658043.
36
Intelligent Transportation & Monitoring Wireless LLC and AMTS Consortium, LLC, Petition for Declaratory 
Ruling and Motion for Stay of Auction No. 65, Memorandum Opinion and Order, 22 FCC Rcd 4788, 4793-94 
¶¶ 16-17 (WTB 2007) (“Bureau MO&O”).
37
See supra note 1.
38
LiveTV, LLC, Opposition to Application for Review (filed April 23, 2007) (“LiveTV Opposition”).
39
AC BidCo LLC, Opposition of AC BidCo LLC to Application for Review (filed April 20, 2007) (“AC BidCo 
Opposition”).
40
Intelligent Transportation and Monitoring Wireless LLC and AMTS Consortium LLC, Reply to Opposition to 
Application for Review (filed May 3, 2007) (“Havens Parties Reply to BidCo”).
Federal Communications Commission      FCC 12-66
14. In their Application for Review, the Havens Parties allege that the staff orders in this 
proceeding have not adequately responded to their request for clarification.
41
  They argue that, in the
absence of further clarification, section 22.853 is unconstitutionally vague and unenforceable.
42
  They 
dispute the Bureau’s characterization of their Reconsideration Petition as a belated effort to obtain 
reconsideration of the Air-Ground Order.
43
  They maintain their challenge to the Auction 65 results.
44
  
Finally, they charge that the Commission’s powers regarding licensing “and other matters ‘in the public 
interest’” are unconstitutional.
45
III. DISCUSSION
15. The Commission will grant an application for review of a final action taken on delegated 
authority only when the action under review conflicts with statute, regulation, precedent, or established 
Commission policy; involves a question of law or policy which has not previously been resolved by the 
Commission; involves application of a precedent or policy that should be overturned; makes an erroneous 
finding as to an important or material factual question; or involves prejudicial procedural error.
46
  As we 
explain, the Havens Parties’ Application for Review fails to establish any of these grounds.
16. Requested clarification.  The Havens Parties allege that the staff orders in this proceeding 
have not adequately responded to some of the issues they posed in their previous pleadings.
47
In their 
Petition for Declaratory Ruling, the Havens Parties presented their issues as four questions, which the 
Auctions Division addressed in the Auctions Division Order.
48
  Questions 2 and 3 concerned the effect of 
the air-ground eligibility restriction on the participation in the auction of applicants with a bidding 
agreement.
49
  The Reconsideration Petition did not raise any issues regarding the responses provided in 
the Auctions Division Order to these two questions, and neither does the Application for Review. We 
thus conclude that the responses to only Questions 1 and 4 are being challenged here and accordingly do 
not consider Questions 2 and 3 in this order.
50
                                                          
41
Application for Review at 1-6.
42
Id. at 3. 
43
Id. at 5-6.
44
The Havens Parties suggest in their Application for Review that they are willing to abandon their challenge to 
Auction 65 and to the auction’s winning bidders, so long as they can still pursue their claim that section 22.853 is 
unconstitutionally vague.  Id. at 7; see infra para. 25.  However, they withdraw this suggestion in a subsequent 
pleading.  Havens Parties Reply to BidCo at 1.
45
Application for Review at 6-7.
46
See 47 C.F.R. § 1.115.  See also Application for Review of Declaratory Ruling Issued by the Chief, Cable 
Services Bureau, In re Jay Lubliner and Deborah Galvin, Potomac, Maryland, Memorandum Opinion and Order, 13 
FCC Rcd 16107, 16109 ¶ 4 (1998).
47
Application for Review at 2, 6.
48
See Auctions Division Order, 21 FCC Rcd at 5119-22 ¶¶ 7-13. 
49
Petition for Declaratory Ruling at 6, 8-9.
50
Our decision today addresses only the arguments explicitly raised by the Havens Parties in their Application for 
Review.  Although the Havens Parties assert that “[t]here is no need in an administrative appeal to recite the actual 
language of issues previously clearly presented, and [that they] do not do so[,]” our rules do in fact require that they 
plainly state in their application for review the questions they are presenting for review and all relevant arguments 
and facts.  See Application for Review at 2; 47 C.F.R. § 1.115(b)-(c).  The Commission has made clear that 
incorporation by reference of pleadings and other filings in the same or other proceedings by an applicant for review 
is not sufficient to meet the requirements of section 1.115.  See Tama Radio Licenses of Tampa, Florida, Inc., 
Memorandum Opinion and Order, 25 FCC Rcd 7588, 7589 ¶ 2 (2010) (“The Commission is not required to sift 
(continued....)
Federal Communications Commission      FCC 12-66
17. The remaining two questions, Questions 1 and 4, concerned the definition of “controlling 
interest”:
1.  Does “controlling interest” in Section 22.853 include all “affiliates” as defined [in] 
Section 1.2110?
51
. . . .
4.  In the Air-Ground Order, paragraph 44 . . ., what is meant by:  “together with the other 
provisions of Sections 1.2110(c)(2) and 1.2110(c)(5), these provisions will ensure that no 
entity will hold a controlling interest in more than three megahertz of spectrum (shared or 
exclusive) in the 800 MHz air-ground band”?
52
18. The Auctions Division Order explained that section 22.853 and the Air-Ground Order
provided extensive detail about what constitutes a controlling interest, as well as specific guidance on 
when entities are considered to have control on the basis of their affiliation.
53
  The order then addressed 
Questions 1 and 4 insofar as they presented issues that could be relevant to Auction No. 65.  The Auctions 
Division explained that to the extent that the Havens Parties were seeking an explanation of how the 
Auction 65 eligibility rules would apply to them, the question had already been answered.
54
  The Auction 
65 Supplemental Procedures Public Notice had specified that the Havens Parties could not be assigned 
more than one license in the auction, because they had both reported on their Auction 65 short-form 
applications that they were controlled by Warren Havens.
55
  The Auctions Division further explained that 
to the extent that the Havens Parties were trying to extract a ruling in advance of the auction on how these 
rules would apply to other auction applicants, a pre-auction ruling based on information required to be 
submitted by the winning bidders only after the auction closed would be premature.
56
  Rather, as detailed 
in the Auction 65 Procedures Public Notice, the appropriate time to challenge the eligibility of other 
applicants would come after the conclusion of bidding, at the long-form application stage.
57
  Accordingly, 
                                                          
(Continued from previous page)
through an applicant's prior pleadings to supply the reasoning that our rules require to be provided in the application 
for review.”); Red Hot Radio, Inc., Memorandum Opinion and Order, 19 FCC Rcd 6737, 6745 n.63 (2004) (“Such 
incorporation by reference is not allowed under our rules.  Our rules do not allow for a ‘kitchen sink’ approach to an 
application for review, rather the burden is on the Applicant to set forth fully its argument and all underlying 
relevant facts in the application for review.”).
51
Petition for Declaratory Ruling at 6, 7-8.
52
Id. at 6, 9-10.  
53
Auctions Division Order, 21 FCC Rcd at 5119 ¶ 8.
54
Id. at 5120 ¶ 9. 
55
Id. at 5119 ¶ 6, 5120 ¶ 9; see Auction 65 Supplemental Procedures Public Notice, 21 FCC Rcd at 5058 & n.4.  
Both Havens Parties reported on their short forms that Warren Havens held a 100 percent interest in them.  See 
Auction 65 FCC Form 175 filed by AMTS Consortium LLC, file no. 0002543227, and Auction 65 FCC Form 175 
filed by Intelligent Transportation & Monitoring Wireless, file no. 0002543254.
56
Auctions Division Order, 21 FCC Rcd at 5119 ¶¶ 6, 10.  The Commission is not obligated to issue advisory 
opinions in response to a request for declaratory ruling and in numerous cases has found it inappropriate to do so.  
See, e.g., Adapso, the Computer Software and Services Industry Ass’n, Inc. et al., 10 FCC Rcd 12128, 12128-29 ¶ 5 
(1995); Petition of Motorola Satellite Communications for Declaratory Ruling Concerning Participation of Comsat 
Corporation in a New Inmarsat Satellite System Designed To Provide Service to Handheld Communications 
Devices, 9 FCC Rcd 7693, 7699 ¶ 20 (1994).
57
See Auctions Division Order, 21 FCC Rcd. at 5119-21 ¶ 7-11.  The Auctions Division observed that the Bureau 
had rejected a similar eligibility-based petition and associated motion for stay filed by another Havens-controlled 
entity in advance of Auction 39.  Id. at 5120-22 ¶ 11 (citing Auction of Licenses for VHF Public Coast and Location 
and Monitoring Service Spectrum, Order, 17 FCC Rcd 19746, 19749-50 ¶ 7 (WTB 2002)).  The Auctions Division 
(continued....)
Federal Communications Commission      FCC 12-66
the Auctions Division Order denied in part and otherwise dismissed the Havens Parties’ “Petition for 
Declaratory Ruling” and “Motion for Stay.”
58
19. In affirming the Auctions Division Order, the Bureau MO&O augmented the answer to
Question 1 by explaining that, contrary to the assertion of the Havens Parties, nothing in the Air-Ground 
Order or in section 22.853 required all affiliates to be considered per se controlling interests of an entity 
for purposes of air-ground license eligibility.
59
  The Bureau likewise disagreed with the Havens Parties’ 
claim that section 22.853 was unconstitutionally vague and therefore unenforceable.
60
  The Bureau 
MO&O observed, moreover, that not only was the Air-Ground Order’s explanation of the provision 
unambiguous, but the Auction 65 Supplemental Public Notice described exactly how the section 22.853 
eligibility restriction would affect bidders in Auction 65.
61
  
20. We affirm the Bureau’s determination that the Air-Ground Order sufficiently explains the 
meaning of section 22.853
62
and that the Auction 65 Supplemental Procedures Public Notice articulated 
for commonly controlled applicants, like the Havens Parties, precisely how section 22.853 would affect 
their eligibility to win licenses in Auction 65.
63
  We further believe that the Bureau’s answer to Question 
1 – that not every “affiliate,” as defined in section 1.2110, is necessarily a “controlling interest,” as the 
term is used in section 22.853 – should have eliminated any lingering uncertainty on the part of the 
Havens Parties about the meaning of the latter term as applied to air-ground license eligibility.
64
  
Nevertheless, we restate that the terms “controlling interests” and “affiliate,” for purposes of the air-
ground eligibility restriction, mean the same thing as they do for purposes of determining designated 
entity eligibility under section 1.2110.  
21. The Havens Parties should not have required this additional guidance.  Their common 
controlling interest, Warren Havens, is an experienced spectrum auction participant with knowledge of 
the operation of the rules in question.  Since 2000, when the Commission adopted the controlling interest 
standard as its general attribution rule for determining designated entity eligibility, Havens or parties he 
controls have applied to participate as designated entities in eleven of our auctions and, using designated 
entity benefits, have won several hundred licenses.
65
  Throughout this period, the definitions of 
                                                          
(Continued from previous page)
noted further that “other Havens-controlled entities [had] also sought a stay of Auction No. 57, but [had] 
subsequently [withdrawn] that request.”  Id. (citing Motions for Stay of Auction No. 57 and Requests for Dismissal 
or Disqualification, Order, 19 FCC Rcd 20482 (WTB 2004)).
58
Id. at 5123 ¶ 17.
59
Bureau MO&O, 22 FCC Rcd at 4791-92 ¶ 11 (explaining also that, “by noting that the definition of ‘affiliate’ 
would apply to determinations of Air-Ground eligibility, the Commission was merely indicating that a ‘controlling 
interest’ in an entity – the operative standard under the Air-Ground Order – may arise from certain relationships 
described under the affiliation definition”).
60
Id. at 4792-93 ¶¶ 12-13.  The Havens Parties first presented this issue in their Petition Supplement and reiterated it 
in their Reconsideration Petition.  See Petition Supplement at 5, 10; Reconsideration Petition at 4; see also 
Application for Review at 3-6.
61
Bureau MO&O, 22 FCC Rcd at 4792 ¶ 12.
62
See id. at 4790-93 ¶¶ 11-13.
63
See id. at 4792 ¶ 12; Auctions Division Order, 21 FCC Rcd at 5120 ¶ 9; Auction 65 Supplemental Procedures 
Public Notice, 21 FCC Rcd at 5058 & n.4.
64
See supra note 59 and accompanying text.
65
See the Federal Communications Commission’s Auctions website,  
http://wireless.fcc.gov/auctions/default.htm?job=auctions_home (Auctions 39, 43, 48, 57, 59, 61, 65, 72, 73, 76 and 
87).  
Federal Communications Commission      FCC 12-66
“controlling interests” and “affiliate” in paragraphs (c)(2) and (c)(5) of section 1.2110 have remained in 
essentially their current form.
66
  Thus, for more than a decade, applicants and licensees controlled by 
Warren Havens have chosen to subject themselves to – and have been legally required to comply with –
eligibility restrictions based on the very concepts of controlling interest and affiliation that are 
incorporated into the eligibility restriction of section 22.853.  Moreover, the Air-Ground Order, section 
22.853, the Auction 65 public notices, and the staff orders in this proceeding left no room for reasonable 
doubt that the Havens Parties were commonly controlled applicants and that, between the two of them, 
they would be eligible to win no more than one license in Auction 65.
67
22. In addition, we find no basis for the implication in the Havens Parties’ Question 4 that the last 
sentence of paragraph 44 of the Air-Ground Order is ambiguous.
68
  Paragraph 44 states that, in 
connection with 800 MHz air-ground licensing, the Commission will use the section 1.2110(c)(2) 
definition of “controlling interests” and the section 1.2110(c)(5) definition of “affiliate.”
69
  Both 
definitions are multi-faceted, each covering various aspects of its respective subject.  In paragraph 44, the 
Commission highlighted three specific aspects discussed in section 1.2110(c)(2), the “controlling 
interests” definition – full dilution, management agreements, and joint marketing agreements.  When the 
Commission ended paragraph 44 by concluding that these highlighted elements, together with “the other 
provisions of Section 1.2110(c)(2) and Section 1.2110(c)(5),” would ensure that no entity would exceed 
the limit on controlling interest,
70
there could be no doubt about the meaning, namely that, in determining 
whether control exists for purposes of 800 MHz air-ground band license eligibility, parties should rely on 
all facets of the two definitions and not just on the specific elements highlighted in paragraph 44.
                                                          
66
See 47 C.F.R. § 1.2110; Amendment of Part 1 of the Commission’s Rules – Competitive Bidding Procedures, 
Order on Reconsideration of the Third Report and Order, Fifth Report and Order, and Fourth Further Notice of 
Proposed Rule Making, 15 FCC Rcd 15293, 15323-27 ¶¶ 58-67 (2000).
67
Moreover, the Havens Parties have never claimed that their professed uncertainty about section 22.853 relates to 
any concerns about the eligibility of the other Auction 65 applicants, including the two Auction 65 winners.  See 
infra text accompanying note 73.
68
Paragraph 44 of the Air-Ground Order reads as follows:
We also will apply the definitions of “controlling interests” and “affiliate” currently set 
forth in Sections 1.2110(c)(2) and 1.2110(c)(5) of the Commission's rules.  These provisions have 
worked well to identify individuals and entities that have the ability to control applicants for 
Commission licenses and therefore are well-suited to our goal here of ensuring that no party will 
hold a controlling interest in more than three megahertz of spectrum (shared or exclusive) in the 
800 MHz air-ground band.  We note that Section 1.2110(c)(2) includes the requirement that 
ownership interests generally be calculated on a fully diluted basis, and also provides that any 
person who manages the operations of an applicant pursuant to a management agreement, or 
enters into a joint marketing agreement with an applicant, shall be considered to have a controlling 
interest in the applicant if such person, or its affiliate, has authority to make decisions or otherwise 
engage in practices or activities that determine, or significantly influence, the types of services 
offered, or the terms or prices of such services.  We find that, together with the other provisions of 
Sections 1.2110(c)(2) and 1.2110(c)(5), these provisions will ensure that no entity will hold a 
controlling interest in more than three megahertz of spectrum (shared or exclusive) in the 800 
MHz air-ground band.
20 FCC Rcd at 4427 ¶ 44 (citations omitted).
69
Id.  We note that Section 1.2110(c) comprises a list of defined terms – albeit detailed ones – and that all the details 
in a given subsection (c) term form the definition of that term.
70
See supra note 68.
Federal Communications Commission      FCC 12-66
23. We also uphold the Bureau’s rejection of the Havens Parties’ argument that the provision is 
vague and therefore unconstitutional.
71
  While the Havens Parties cited in their Petition Supplement a few 
federal decisions to support the general proposition that rules need to be clear,
72
they made no attempt to 
demonstrate that the rule at issue here – section 22.853 – is analogous to the rules that those decisions 
would classify as impermissibly vague. The Havens Parties’ Application for Review similarly asserts that 
section 22.853 is unconstitutionally vague but provides no support for this assertion.  Contrary to the 
Havens Parties’ assertion, we conclude that section 22.853 sets forth a very clear and specific limitation 
on the amount of spectrum in which individuals and entities may hold a controlling interest in the 800 
MHz commercial aviation Air-Ground Radiotelephone Service band, using terms defined in the rules and 
Commission precedent.
24. Auction 65 challenge.  Having found no basis on which to grant the Application for Review, 
we have no basis on which to overturn Auction 65 or disturb the licenses of the winning bidders.  As the 
Mobility Division Order observed, the Havens Parties never questioned the propriety of granting the 
LiveTV and BidCo long-form applications, acknowledging to the contrary that they did “not seek to 
challenge the winning bidders per se[.]”
73
  Thus, we agree with the Bureau’s refusal to reverse the 
Mobility Division Order
74
and, accordingly, deny the Application for Review as to the validity of Auction 
65 and the license grants to BidCo and LiveTV
75
25. Constitutional challenge to Commission.  In their Application for Review, the Havens 
Parties assert that the Auctions Division Order and the Bureau MO&O reflect the Commission’s use of 
“nearly unbridled powers” to decide “licensing and other matters ‘in the public interest.’”
76
  They allege 
further that these powers are “unconstitutional as codified and as used” and that their exercise has 
“arbitrary and capricious and other unlawful effects. . . .”
77
  These grievances, which the Havens Parties 
never presented in their pleadings to Commission staff and for which they do not seek specific relief, have 
not been properly raised in this proceeding.
78
  The challenge thus fails on several counts to satisfy our 
requirements for grant of an application for review, and we therefore deny it.
79
As an alternative and 
independent ground for rejecting the argument, because we find above that section 22.853 is not vague 
and we reject the Havens Parties’ claim that the rule is unconstitutional, we need not reach their broader 
                                                          
71
See Bureau MO&O, 22 FCC Rcd at 4792-93 ¶¶ 12-13; Petition Supplement at 5 and 10.  See also Application for 
Review at 4-6.
72
Petition Supplement at 10 n.13.
73
Mobility Division Order, 21 FCC Rcd at 13011 ¶ 4; see Auction 65 Applications Petition at 2.
74
See Bureau MO&O, 22 FCC Rcd at 4793 ¶ 15.
75
See BidCo Opposition at 2, LiveTV Opposition at 3.  BidCo and LiveTV each assert that the claims raised in the 
Application for Review should have no effect on their licenses won in Auction 65.
76
Application for Review at 6-7.  The Havens Parties state that they intend to bring this “broader problem to the 
courts for review.”  Id.
77
Id.
78
See 47 C.F.R. § 1.115(b)(3)-(4), (c); Application of Pacific Telesis Mobile Services for a License to Provide 
Broadband PCS Service on Block B in the Los Angeles – San Diego Major Trading Area, Order, 11 FCC Rcd 
19090, 19094-95 ¶ 9 (1996) (“Cox failed to substantiate its claims ‘with particularity,’ as required under our rules.” 
(citing 47 C.F.R. § 1.115[(b)](3))); Vodafone AirTouch, Plc and Bell Atlantic Corporation, Memorandum Opinion 
and Order, 20 FCC Rcd 6439, 6446 ¶ 18 & n.50 (citing 47 C.F.R. § 1.115(b)(4)); Federal-State Joint Board on 
Universal Service, Memorandum Opinion and Order, 27 FCC Rcd 1706, 1709 n.14 (“[P]ursuant to section 1.115(c) 
of our rules, we are barred here from considering this issue because the Bureau was not previously afforded an 
opportunity to consider this matter.”)
79
See 47 C.F.R. § 1.115(b)(3)-(4), (c).
Federal Communications Commission      FCC 12-66
claim that the Commission has unconstitutionally broad powers, as codified in the Act and as exercised in 
licensing and other matters.
80
IV. CONCLUSION
26. For the reasons discussed above, we conclude that the Havens Parties have not shown that the 
Bureau MO&O was in error, and we accordingly deny their Application for Review.
V. ORDERING CLAUSE
27. Accordingly, IT IS ORDERED that, pursuant to section 5(c)(5) of the Communications Act 
of 1934, as amended, 47 U.S.C. § 155(c)(5), and section 1.115(g) of the Commission’s rules, 47 C.F.R.
§ 1.115(g), the Application for Review of Intelligent Transportation and Monitoring Wireless LLC and 
AMTS Consortium LLC, filed April 8, 2007, is DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch 
Secretary
                                                          
80
See, e.g., Implementation of Section 11(c) of the Cable Television Consumer Protection and Competition Act of 
1992, Third Report and Order, 14 FCC Rcd 19098, 19127 ¶ 70 (1999).