$// Order, Nextel Communications/OneComm Corporation, DA 95-263//$ $/ Transfer of control/$ RECORD ONLY Before the FEDERAL COMMUNICATIONS COMMISSION DA 95-263 Washington, D.C. 20554 In the Matter of ) ) Applications of ) NEXTEL COMMUNICATIONS, INC. ) ) For Transfer of Control of ) ONECOMM CORPORATION, N.A., and ) C-CALL CORP. ) ORDER Adopted: February 17, 1995 Released: February 17, 1995 By the Chief, Wireless Telecommunications Bureau: Table of Contents Paragraph I. Overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-4 II. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-8 III. Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-15 IV. Procedural Issues . . . . . . . . . . . . . . . . . . . . . . . .16-22 V. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . .23-44 A. Impact of Merger on Competition . . . . . . . . . . . . . .23-33 B. Transfer of Unconstructed Licenses . . . . . . . . . .34-39 C. Interoperability of Equipment . . . . . . . . . . . . .40-41 D. Failure to Inform Commission of 1993 Letter of Intent .42-44 VI. Ordering Clauses. . . . . . . . . . . . . . . . . . . . . . . .45-47 I. Overview 1. On August 12, 1994, OneComm Corporation, N.A. ("OneComm") submitted an FCC Form 703 application seeking consent to transfer control of certain 800 MHz Specialized Mobile Radio ("SMR") licenses to Nextel Communications, Inc. ("Nextel") pursuant to 47 C.F.R.  90.153. As part of the same transaction, OneComm also requested consent to transfer control of licenses held by a OneComm affiliate, C-Call Corp., to Nextel. These licenses will be transferred as part of a merger in which OneComm will become a wholly-owned subsidiary of Nextel. 2. The Private Radio Bureau ("PRB") solicited comments from the public to assist in determining whether the proposed transfer of control is in the public interest. Opponents of the transfer argue that Nextel's spectrum consolidation would not serve the public interest because it would decrease the number of competitors and increase prices. Supporters of the transfer contend that it will enhance competition in the Commercial Mobile Radio Services ("CMRS") market among SMR, cellular, and Personal Communications Services ("PCS") providers. After considering the record, we decide that the public interest is best served by approving the transfer, which we believe will promote competition in the broader CMRS marketplace. 3. OneComm's application includes the proposed transfer of unconstructed SMR licenses to Nextel. Although we generally approve the transfer of control, we limit the transfer of authorizations for unconstructed facilities to stations with service contours that do not extend beyond the "footprint" of already constructed facilities. Thus, our approval is contingent on a showing by OneComm, within thirty (30) days of the date of this Order, that all applications for unconstructed facilities being transferred to Nextel have service contours that fall within the footprint of its existing wide-area system. Those authorizations for unconstructed stations that fall outside of OneComm's footprint may not be transferred unless OneComm can establish that they are incidental to the larger transaction. We further condition the transfer on notification from the parties that the underlying transaction between Nextel and OneComm has been consummated within one-hundred eighty days (180) days from the release date of this Order. 4. In addition, certain authorizations that OneComm proposes to transfer to Nextel have been challenged by various parties. OneComm may transfer such authorizations, but they remain subject to the Bureau's decision on the validity of the underlying authorizations. Therefore, OneComm's successor in interest, Nextel, will receive the assigned licenses subject to challenges against these specific authorizations. II. Background 5. OneComm is a Denver-based, publicly-traded corporation which owns and operates SMR systems throughout the Western United States. OneComm, formerly CenCall Communications Corporation, was established in 1989 and completed an initial public offering of shares in 1993. On May 26, 1994, the company received shareholder approval to change its name formally from CenCall to OneComm Corporation. OneComm's services include mobile telephone, alpha-numeric paging, and two-way radio service. OneComm has implemented advanced digital technology using the Motorola Integrated Radio System ("MIRS") in the Colorado Front Range and the I-5 corridor from Seattle, Washington to Portland, Oregon. 6. Nextel is a publicly-traded U.S. corporation, based in Rutherford, New Jersey, which owns numerous subsidiaries that hold SMR licenses throughout the United States. Nextel intends to implement a nationwide, seamless, all-digital integrated network capable of providing services similar to existing cellular and future PCS offerings. Nextel currently provides and also expects to continue to offer dispatch service. To complete its nationwide system, Nextel has entered into several agreements to acquire 800 MHz regional SMR licenses, one of which is with OneComm. 7. In addition to acquiring regional companies, Nextel entered into an "Agreement and Plan of Contribution and Merger" ("Agreement") with Motorola, Inc. ("Motorola") on August 4, 1994. The Agreement involves, inter alia, the transfer of Motorola's SMR licenses to Nextel in exchange for approximately 24% of Nextel's voting stock. In addition, Nextel has agreed to use Motorola's MIRS technology to establish its wide-area digital network. MIRS can produce approximately a fifteen-fold increase in SMR system capacity over an analog system and provide the infrastructure for a seamless nationwide SMR system. 8. The U.S. Department of Justice ("DOJ") has reviewed the Nextel-Motorola Agreement, as well as the OneComm and Dial Page transactions, to determine whether Nextel's acquisitions violate U.S. antitrust laws. DOJ approved the Nextel acquisitions in a proposed Final Judgment, subject to Nextel's divestiture of forty-two 800 MHz channels in Atlanta once the Dial Page transaction is completed. The DOJ Proposed Final Judgment also imposes a cap on the amount of 900 MHz spectrum that may be owned and controlled by Nextel and Motorola in thirteen specific cities. On October 27, 1994, the United States, Motorola, and Nextel filed a stipulation in the United States District Court for the District of Columbia consenting to the entry of the Proposed Final Judgment. III. Pleadings 9. Pursuant to Section 90.153 of the Commission's rules, PRB issued a Public Notice on October 3, 1994, soliciting comments on OneComm's application for transfer of control to assist in a determination of whether the proposed transfers are in the public interest, convenience or necessity. In response to the Public Notice, Clark's Electronics, Teton Communications, Radio Service Company, Zundel's Radio, Business Radio, and Accu Comm (hereinafter collectively "Clark") filed joint comments, and E.F. Johnson Company ("E.F. Johnson") and Pittencrieff Communications, Inc. ("Pittencrieff") filed individual comments. OneComm, Nextel, Motorola, and Earl's Distributing Company ("Earl's") filed reply comments. Kentec Communications, Inc., et al., ("Kentec") filed a motion for extension of time, which was denied on October 21, 1994. 10. On November 3, 1994, OneComm amended its application to include additional licenses omitted in its August 12, 1994 application. Also on November 3, 1994, Motorola requested that the record be reopened to include the Proposed Final Judgment between Motorola, Nextel, and the Department of Justice. In consideration of the new filings, we reopened the comment period for one week, from November 14-21, 1994, requesting additional comments on OneComm's amended applications and the relevance, if any, of the DOJ Proposed Final Judgment to the OneComm/Nextel transfer. 11. In response to the Second Notice, OneComm and Motorola filed comments. Clark filed two sets of comments relating to the DOJ Proposed Final Judgment after the November 21, 1994 deadline. Along with its late-filed comments, Clark filed a Motion to Accept Pleading. Clark claims that we should accept its late-filed comments because the one-week period that PRB allotted to comment on the DOJ Proposed Final Judgment was insufficient. In addition, Clark asserts that Motorola failed to provide the Commission with two documents that are relevant to this proceeding, namely the Complaint and the Competitive Impact Statement ("CIS"), both of which were filed in District Court along with the Proposed Final Judgment. Clark provided copies of both of these documents for the record along with its comments. 12. Although typically we do not accept late filings, we agree with Clark that the Complaint and the CIS are relevant to this proceeding. The additional documents provide the context and reasoning behind the DOJ Proposed Final Judgment. Therefore, we accept Clark's late-filed comments, and we have considered Clark's arguments to the extent they apply to the OneComm transfer of control to Nextel. 13. In a separate but related context, Clark filed a Petition for Reconsideration and Special Relief, and Idaho Communications, L. P., et al., ("ICLP") filed a Petition for Reconsideration. Both Clark and ICLP request that we rescind certain OneComm 800 MHz SMR authorizations in light of the proposed transfer to Nextel. ICLP asserts that the Commission granted OneComm two new SMR licenses in violation of the August 9, 1994 freeze Order. Although we do not address rescission issues in this Order, we consider the arguments raised by Clark and ICLP to the extent that they relate to the OneComm transfer of control to Nextel. 14. Clark and E.F. Johnson, opponents of the transfer of control, contend that the transfer is not in the public interest because it would permit Nextel to monopolize SMR radio frequencies. They claim that OneComm's transfer of authorizations for unconstructed facilities to Nextel violates Commission rules. Several commenters also assert that the transfer of control is not in the public interest because Nextel's agreement to use Motorola's MIRS technology will exclude manufacturers other than Motorola from the wide-area SMR marketplace. Clark's comments on the DOJ Proposed Final Judgment attack both DOJ's and the Commission's definition of the product market. Clark claims that the relevant product market for analyzing competition issues is the 800 MHz SMR market. Clark therefore concludes that Nextel's domination of the 800 MHz SMR market -- which Clark contends will be exacerbated by Nextel's acquisition of OneComm -- is anti-competitive and against the public interest. 15. OneComm, Nextel, Motorola, and Pittencrieff, supporters of the transfer, argue that SMR licensees must be permitted to aggregate spectrum and employ digital technologies in order to compete with both cellular providers and broadband PCS providers. Supporters conclude that the transfer of control is in the public interest because it will promote competition in the CMRS marketplace, thereby increasing the number of services and reducing prices for consumers. Motorola also responded to the equipment issue by stating that it has already agreed to license MIRS technology to other manufacturers under commercially reasonable terms and conditions, so that other manufacturers will not be excluded from providing equipment for wide-area SMR systems. With respect to the DOJ Proposed Final Judgment, OneComm and Motorola argue that the Commission should expeditiously approve the transfer of control because DOJ has already reviewed the antitrust implications, including the equipment aspects, and has approved the overall transaction. IV. Procedural Issues A. Request to Consolidate Proceedings 16. Background. Clark requests that we consolidate this proceeding with Motorola's request for assignment of licenses to Nextel, which Motorola filed on December 9, 1994. Clark claims that both of these transactions involve the same issues and therefore should be resolved in one action. Clark also argues that consolidation is appropriate because DOJ joined the two transactions in its analysis. 17. Section 1.227 of the Commission's rules provides for consolidation where "such action will best conduce to the proper dispatch of business and to the ends of justice." Section 1.227 further provides that consolidation is appropriate when the same applicant or substantially the same issues are involved. In the past, the Commission has denied requests for consolidation when the business transactions involved are independent, and neither is conditioned on the consummation of the other. 18. Discussion. We agree with Nextel and Motorola that in this instance consolidation is not appropriate. OneComm and Motorola, the two applicants involved here, are distinct entities. They both happen to have entered into agreements with the same party, Nextel, but the agreements involve different business terms, are structured differently, and are neither interrelated nor dependent on one another. We believe it would not serve the public interest to delay consummation of the OneComm transaction simply because Motorola also requested permission to transfer licenses to Nextel four months later. 19. We also agree with Motorola that, for our purposes, it is irrelevant whether or not DOJ considered the transactions together. The purpose of DOJ's analysis was to examine the cumulative competitive impact of a number of proposed acquisitions by Nextel. DOJ's antitrust analysis is separate from the Commission's duty to ascertain whether a particular transfer or assignment proposal is in the public interest, convenience, and necessity. 20. Furthermore, although some of the issues overlap between the OneComm and Motorola assignments, the transfer applications also raise distinct issues that are properly dealt with separately. For example, Clark claims that OneComm failed to inform the Commission of a prior proposed merger with Nextel in violation of Section 1.65 of the Commission's rules. No such allegations have been made with respect to Motorola. Also, the licenses OneComm seeks to transfer are concentrated mostly in the Northwestern region of the United States, whereas Motorola's licenses are geographically more dispersed. Because different issues are involved, we could grant one application, both applications, or neither application. Therefore, we will determine whether to grant each application in the order in which it was filed, based on the facts current at the time the application is processed. B. Request for Special Relief from Technical Interference 21. Clark requests special relief from technical interference, which it claims will be caused to its licensed facilities in Idaho by OneComm/Nextel proposed operations. According to Clark, PRB's Licensing Division ignored the similarity of terrain conditions in Southern Idaho to those of California and Washington -- both of which are afforded greater co-channel separations because of their mountainous terrain -- when granting OneComm authorizations. 22. We agree with OneComm that the Commission has adopted special rules for mountainous regions only for California and Washington, not Idaho. OneComm is therefore in compliance with the Commission's existing short-spacing rules for Idaho. We also agree with OneComm that the appropriate forum for addressing interference in mountainous areas is a rule-making proceeding, not a request for special relief. Thus, if Clark would like the Commission to change the short-spacing rules for Idaho, Clark should file a petition for rule making requesting a rule change. We will not delay the transfer of control to Nextel because of potential technical interference. V. Discussion A. Impact of Merger on Competition 23. Background. The most contentious issue raised in this proceeding involves the impact of the OneComm/Nextel merger on competition. Nextel proposes to build a nationwide, all-digital, integrated mobile communications network which will compete with existing wireless and future PCS offerings. In its quest to establish a nationwide system, Nextel has acquired or is in the process of acquiring local and regional SMR systems throughout the United States. In the current transaction, Nextel seeks to acquire approximately 568 OneComm authorizations, many of which are concentrated in the Pacific Northwest. Nextel's present system overlaps with OneComm's system in relatively few markets. If the Dial Page and Motorola transactions are also approved and consummated, Nextel will control more 800 MHz SMR channels in the United States than any other single company. 24. Opponents of the Nextel/OneComm transaction vociferously complain that Nextel's acquisition of such a large percentage of 800 MHz SMR spectrum will prevent independent operators from being able to expand their systems and will result in increased prices, a reduction in the quality of service, and employee layoffs. Clark's assertions are based on the premise that the 800 MHz SMR market is a discrete product market that offers a low-cost alternative to cellular. These independent SMR operators conclude that Nextel's dominance of the 800 MHz SMR market will eventually squeeze them out of business. OneComm, Nextel, and Motorola, on the other hand, argue that Nextel's nation-wide network will increase competition within the wireless marketplace as a whole. 25. Discussion. When examining a transfer of control under the public interest standard of Section 310(d) of the Communications Act, we consider the effect of the transfer on competition. We agree with OneComm, Nextel, and Motorola that Nextel's network, if successful, will foster overall competition in the flourishing CMRS marketplace. Increased competition throughout the broader CMRS market serves the public interest because it promotes technological innovation and acts as a check on price increases. 26. In the CMRS Third Report and Order, the Commission conducted an extensive market analysis of CMRS services to determine how best to protect and encourage competition among mobile service providers. The Commission determined that all CMRS services -- including paging, SMR, PCS, and cellular -- are actual or potential competitors with one another, and should therefore be regarded as substantially similar for regulatory purposes. In addition, to prevent CMRS providers from restricting competition by aggregating spectrum, the Commission established a 45 MHz cap for combined PCS, cellular, and SMR licenses classified as CMRS in which an entity may have an attributable interest in any geographic area at any point in time. The Commission determined, however, that more stringent limitations on aggregation of SMR spectrum were unnecessary to ensure a competitive CMRS market. 27. Given the Commission's analysis in the CMRS Third Report and Order, we conclude that Nextel's acquisition of OneComm is pro-competitive. The Commission views 800 MHz SMR as just one of many competitive services within the larger CMRS marketplace. Even after the OneComm transfer, Nextel's holdings will be well within the Commission's 45 MHz spectrum cap. In addition, because of the advent of new services and the anticipated deregulation of the cellular industry, Nextel will be forced to compete aggressively with many other providers. 28. We also reject Clark's contention that the Nextel/OneComm merger would violate anti-trust principles. Application of these principles begins with an analysis of the relevant product market in which competition may be threatened. Clark asserts that the relevant product market is limited to SMR service at 800 MHz. OneComm, Nextel, and Motorola, on the other hand, argue for a product market consisting of mobile wireless services as a whole. We find that the evidence presented herein supports the latter conclusion. Contrary to Clark's contentions, licensed 800 MHz SMR is not a self-contained market; rather, as we concluded in the CMRS Third Report and Order, SMR service is one of many competitive wireless services striving to meet the needs of consumers who desire mobile communications. Although technical variations exist among wireless services, their functions frequently overlap with one another or functional overlap can be created easily with moderate investment. For example, SMRs have the flexibility to offer interconnected voice or non-interconnected dispatch services. Cellular and PCS providers also have substantial flexibility to offer a multiplicity of wireless services. For consumers, this results in a wide array of competitive alternatives to choose from, regardless of the service in which a particular provider is licensed. Thus, we reject Clark's view that Nextel should not be viewed as competing with cellular unless it chooses to provide "cellular-like" service. Even if Nextel offers non-cellular services such as dispatch, the product market in which it competes includes cellular and PCS as well as other SMR providers. 29. In addition to determining the product market, antitrust analysis requires examination of the relevant geographic market in which competition potentially is affected by the transaction. We received relatively little comment on the definition of the relevant geographic market. Clark states that it generally agrees with DOJ's definition of the geographic market as the area within a 25-mile radius of a particular city center. We do not decide this issue, but accept Clark's definition for purposes of our analysis here. While a broader geographic market definition may be more appropriate (e.g. a Major Trading Area), our conclusion is not affected by this issue. 30. Based on the above market definitions, we find the Nextel/OneComm merger to be fully consistent with antitrust principles. We find unpersuasive the claims of opponents that the proposed acquisition will result in increased prices and a reduction in the quality of service. If Nextel increases prices and lowers the quality of service, it will lose business; the proposed merger cannot, on that ground, be deemed anti-competitive. Equally unpersuasive is the claim that the proposed merger will eventually squeeze small SMR systems out of business. The Commission's priority is to protect competition, not competitors, for the benefit of consumers. 31. In short, we find no evidence to support the view that competition in the mobile services market will be reduced by this merger. In fact, the merger will have relatively little effect on the concentration of SMR spectrum because Nextel's and OneComm's systems do not significantly overlap. For example, in nearly two thirds of the 67 markets in which OneComm holds licenses, Nextel is currently licensed on or controls fewer than 20 channels prior to the merger. Thus, the acquisition of OneComm's systems by Nextel in these markets will not materially reduce the availability of spectrum to other potential entrants. More broadly, we agree with the applicants and Motorola that the proposed acquisition will have pro-competitive effects in the mobile telecommunications marketplace as a whole by promoting technological innovation and new or improved service offerings for consumers, and acting as a check on price increases by other SMRs and cellular carriers. 32. We note that our analysis of the competitive impact of the Nextel/Onecomm merger differs from that of DOJ, which defined the relevant product market as consisting of trunked SMR service in the 800 MHz, 900 MHz, and 220 MHz bands. Nevertheless, DOJ's analysis also supports our conclusion. Despite its different definition of the product market, DOJ has approved Nextel's combined acquisition of OneComm, Dial Page, and Motorola subject only to certain restrictions affecting 900 MHz SMR and the divestiture of forty-two 800 MHz channels in Atlanta after the Dial Page transaction is completed. We agree with DOJ that the Nextel/OneComm merger can be supported on this basis, because Nextel will continue to face competition from 220 MHz, 800 MHz, and 900 MHz providers. We also disagree with Clark's argument that 220 MHz and 900 MHz SMR should be excluded from the relevant product market on the grounds that they are "unlicensed" services. Limiting the product market in this manner ignores the potential for new entry on frequencies that have not been licensed but are available for licensing. 33. Clark's real concern appears to be the lack of availability of new spectrum for its own growth requirements and those of similarly situated small SMR operators. Clark ignores the fact, however, that the spectrum licensed to OneComm is already occupied and therefore unavailable to competing service providers. Hence, OneComm's transfer of control to Nextel will not exacerbate any spectrum shortage as Clark contends, nor will denial of OneComm's transfer application provide these entities with the spectrum they desire. The issue of spectrum availability raised by Clark is a serious one, which the Commission is already considering in the context of the 800 MHz SMR wide-area licensing proceeding. The decisions made in that proceeding to alleviate spectrum scarcity, however, will apply equally regardless of whether OneComm or Nextel holds the licenses at issue here. Therefore, we see no reason to deny the OneComm transfer of control to Nextel on the basis of scarce spectrum. B. Transfer of Unconstructed Licenses 34. Background. OneComm's application includes the proposed transfer of unconstructed SMR licenses to Nextel. Section 90.609 of the Commission's rules prohibits an applicant from assigning or transferring a license to operate a conventional or trunked radio system prior to the completion of construction of the facility. Section 90.609 does not apply, however, to the transfer of unconstructed authorizations for low-power, digital stations that are ancillary to underlying constructed high-power analog SMR licenses if the analog system is being converted to a wide-area system. Such authorizations for low-power base stations are not for unconstructed facilities in previously unserved areas; we consider them instead to be components of an existing system that is in the process of being reconfigured. Therefore, during the initial stages of a conversion, we grant de facto temporary frequency exclusivity to a licensee throughout its "footprint." We have defined the footprint of a system as "the contiguous and overlapping service areas of stations that are (1) constructed and placed in operation, and (2) currently licensed to or managed by the applicant." We emphasize that the licensee has already been granted exclusivity throughout its footprint, based on the area covered by its constructed and operating base stations. 35. In addition, the Commission's new rules, which went into effect on January 2, 1995, provide a limited exception to the prohibition against transferring unconstructed stations. The CMRS Third Report and Order states that the transfer of unbuilt stations is permitted if the transfer is part of a "bona fide sale of an ongoing business to which the licenses are incidental." The "incidental" exception is embodied in agency case law, which holds that such instances present little risk of speculation. Therefore, legitimate mergers or acquisitions should not be disrupted simply because the acquired company has an unbuilt facility. Thus, to the extent that a licensee wants to transfer authorizations that are truly unconstructed -- e.g. their service contours extend beyond the licensee's existing footprint -- the licensee may be able to establish that the unconstructed authorizations are incidental to a larger merger or acquisition. 36. Discussion. We agree with OneComm and Nextel that established Bureau policy permits a licensee to transfer underlying unconstructed SMR licenses with service contours that do not extend beyond the footprint of the analog licenses with which they are affiliated. In the past, for example, PRB has approved similar transfers of unconstructed wide-area SMR stations of Dispatch Communications, Powerfone, and Questar Telecom Communications to Dial Call. 37. We agree with Clark, however, that OneComm has not provided us with enough information to determine whether the service contours of all of its authorizations for unconstructed facilities are contained within its footprint. Earl's and Clark both claim that at least some of OneComm's authorizations extend beyond OneComm's footprint. Nextel states that OneComm's authorizations, "with few exceptions," fall within its footprint. OneComm asserts that none of its unconstructed authorizations extend beyond its existing footprint. Thus, we approve the transfer of unconstructed authorizations with service contours contained within OneComm's existing footprint; however, we condition our approval on a showing by OneComm that the service contour for each unconstructed authorization does not extend beyond OneComm's existing footprint. 38. With respect to those unconstructed authorizations with service contours that extend beyond OneComm's footprint, OneComm may be permitted to transfer them to Nextel under the Commission's new rules if OneComm can establish that they are incidental to a larger transaction. Clark argues that the transfer of such a large number of unconstructed channels cannot be considered merely "incidental" to the OneComm/Nextel merger. Again, OneComm has not provided us with enough information to enable us to draw any conclusions about whether it has any unconstructed authorizations outside of its footprint and, if so, whether they are incidental to a larger transaction. 39. Therefore, we require the following information from OneComm, within thirty (30) days of the release date of this Order, before we will approve the transfer of any authorizations for unconstructed stations: (1) documentation showing the location and service contour of each authorization for an unconstructed facility in relation to the operating analog base station with which it is affiliated; and (2) if any authorizations for unconstructed licenses have contours that extend beyond OneComm's existing footprint, a showing that they are incidental to a larger merger or acquisition. Any authorizations for which a showing has not been made will cancel automatically. C. Interoperability of Equipment 40. Background. E.F. Johnson requests that the Commission require interoperability between equipment intended for wide-area SMR service, so that Nextel's customers are able to employ equipment produced by manufacturers other than Motorola. According to E.F. Johnson, Nextel requires its customers to use only MIRS equipment, which incorporates a proprietary closed signalling protocol. E.F. Johnson asserts that Motorola is unwilling to license MIRS technology under commercially reasonable terms and conditions to other equipment manufacturers. Furthermore, Clark asserts that OneComm's transfer of control to Nextel will increase the use of MIRS throughout the Pacific Northwest, further limiting the ability of other equipment manufacturers to compete. Motorola and Nextel both claim that E.F. Johnson mischaracterizes their Agreement, which contains explicit open architecture provisions that will encourage the participation of alternative subscriber and infrastructure equipment manufacturers. Motorola specifically states that it has already made a commitment to make MIRS proprietary technology available to other manufacturers on commercially reasonable terms and conditions. 41. Discussion. We agree with Nextel that interoperability standards do not directly relate to OneComm's application for transfer of control to Nextel. The Commission recently considered the interoperability issue in the CMRS Third Report and Order and decided not to adopt interoperability standards for CMRS. E.F. Johnson's request that we change this policy is a rule-making issue that should be addressed in the appropriate rule- making proceeding. Our concern here is limited to whether the public interest is served by OneComm's transfer of control to Nextel. Because OneComm already employs MIRS technology, transfer of control to Nextel should not have a dramatic impact on the equipment manufacturing industry. We therefore see no reason to deny or delay the merger on this basis. D. Failure to Inform Commission of 1993 Letter of Intent 42. Background. Clark contends that OneComm violated Section 1.65 of the Commission's rules because it failed to inform the Commission of a prior proposed merger with OneComm that was not consummated. The transaction in question was initiated on October 18, 1993, when Nextel entered into a letter of intent with OneComm to transfer certain SMR assets in exchange for a minority interest in OneComm. Subsequently, the parties renegotiated the merger in the form that is now before us. 43. Discussion. We disagree with Clark that OneComm violated Section 1.65 of the Commission's rules by failing to report to the Commission the proposed transfer of control to Nextel within thirty days of entering into the letter of intent. The general rule, as stated in Section 1.65, requires applicants to apprise the Commission of material changes affecting their pending applications. Section 1.65 provides in relevant part: [e]ach applicant is responsible for the continuing accuracy and completeness of information furnished in a pending application . . . whenever there has been a substantial change as to any . . . matter which may be of decisional significance in a Commission proceeding involving the pending application . . . . This rule does not require parties to notify the Commission of a proposed transaction that is still being negotiated. 44. As Nextel asserts, the letter's terms and agreements were never finalized because the October 18, 1993 proposed agreement was abandoned in favor of a different transaction entered into on July 13, 1994. Under the proposed 1993 deal, Nextel planned to transfer SMR assets to OneComm. Under the 1994 deal, OneComm is transferring control of its corporate entity to Nextel and becoming a wholly-owned subsidiary. Even if the two deals were identical, the parties had no obligation to report a change until after the deal was fully negotiated and ready to be consummated. Standing alone, the letter of intent is not information of "decisional significance" to the Commission, because it neither changed the status of OneComm nor transferred control of OneComm facilities to Nextel. VI. Ordering Clauses 45. Accordingly, IT IS ORDERED that OneComm's application seeking consent to transfer control to Nextel is GRANTED to the extent described herein and DENIED in all other respects. 46. IT IS FURTHER ORDERED that OneComm has thirty (30) days from the release date of this Order to make the showings discussed in  39. 47. IT IS FURTHER ORDERED that OneComm and Nextel have one- hundred eighty days (180) days from the release date of this Order to provide notification that the underlying transaction has been consummated. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney Chief, Wireless Telecommunications Bureau Appendix A TRANSFER OF CONTROL Comments October 18, 1994 Opposition Comments filed by Clark's Electronics, Teton Communications, Radio Service Company, Zundel's Radio, Business Radio, and Accu Comm ("Clark Comments") E.F. Johnson Company ("E.F. Johnson Comments") Kentec Communications, Inc. and Pro-Tec Mobile Communications, Inc., filing jointly Motion For Extension of Time ("Kentec Motion") Pittencrieff Communications, Inc. ("Pittencrieff Comments") Reply Comments October 25, 1994 Motorola, Incorporated ("Motorola Reply Comments") Nextel Communications, Incorporated ("Nextel Reply Comments") OneComm Corporation ("OneComm Reply Comments") Amendment of Transfer of Control Application of C-Call Corp. November 3, 1994 Nextel ("Nextel Amendment") Proposed Final Judgment Between the United States, Motorola, and Nextel November 3, 1994 Motorola ("DOJ Proposed Final Judgment") Additional Comments November 21, 1994 Motorola ("Motorola DOJ Comments") OneComm ("OneComm DOJ Comments") Late-Filed Comments November 30, 1994 Clark, Motion to Accept Pleading; Preliminary Comments on Proposed Antitrust Final Judgment ("Clark Preliminary DOJ Comments") December 7, 1994 Motorola, Opposition to Motion to Accept Pleading December 9, 1994 OneComm, Opposition and Motion to Strike Motion to Accept Pleading December 14, 1994 Clark, Additional Comments on Proposed Antitrust Final Judgment ("Clark DOJ Comments") December 20, 1994 Clark, Opposition to OneComm's Motion to Strike January 23, 1995 Clark, Response to OneComm's Supplement to its December 9, 1994 Opposition and Motion to Strike Clark's Comments Motion to Consolidate Actions January 13, 1995 Clark Motion to Consolidate Actions January 20, 1995 Nextel Reply Comments (DA 94-1567) Motorola Opposition to Motion to Consolidate Actions (DA 94-1567) February 1, 1995 Clark Reply to Oppositions of Motorola and OneComm to Clarks' Motion to Consolidate Actions Ex Parte Filing January 26, 1995 Nextel ("Nextel ex parte") PETITIONS TO RESCIND ONECOMM AUTHORIZATIONS Petitions October 7, 1994 Earl's Distributing Inc. and Earl's Wireless Communications ("Earl's Petition") October 18, 1994 Clark, et al., Petition for Special Relief and Comments Requesting Rescission of SMR Authorizations Issued to OneComm ("Clark Petition") November 18, 1994 Idaho Communications Limited Partnership and Radio Service Company, filing jointly, Petition for Reconsideration ("ICLP Petition") Opposition to Petitions October 20, 1994 OneComm Opposition to Earl's Petition for Reconsideration ("OneComm Opposition to Earl's") November 2, 1994 OneComm Opposition to Clark Petition for Special Relief ("OneComm Opposition Clark") January 11, 1995 OneComm Letter to Rosalind K. Allen Re: ICLP Petition for Reconsideration Reply to OneComm Opposition October 28, 1994 Earl's Distributing Company, Inc. Reply to OneComm Opposition to Petition for Reconsideration ("Earl's Reply to OneComm Opposition") November 21, 1994 Clark Reply to Opposition to Petition for Reconsideration ("Clark Reply to OneComm Opposition") January 24, 1995 ICLP Opposition to OneComm's Informal Response to Petition for Reconsideration (ICLP Reply to OneComm Opposition") Appendix B Commission Documents Issued In This Proceeding Public Notice, DA 94-1087, "Private Radio Bureau Seeks Comments on OneComm Corporation's Request For Commission Consent to Transfer Control to Nextel Communications, Inc." October 3, 1994. Public Notice, DA 94-1256, "Private Radio Bureau Seeks Further Comment on OneComm Corporation's Request for Commission Consent to Transfer Control to Nextel Communications, Inc." November 14, 1994. Order, DA 94-1185, Denying Motion for Extension of Time filed by Kentec Communications, Inc., et al., October 21, 1994.