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A. 1. a.(1)(a) i) a)T,0*ÍÍ,*Í ., US!!!! ! #:}D4P XP#     X` hp x (#%'0*,.8135@8:<    #:}D4P XP#,0*ÍÍ,*Í ., US!!!! ! #:}D4P XP#footnote tex#X'p #FxX  Pg9CXP#referenceY;#FxX  Pg9CXP#itemizeX1Z&V 8F ` hp xr#FxX  Pg9CXP#2zs[im\ ao]npK/qheader2[I ` hp x`    #FxX  Pg9CXP# CitatorFormat Secretary's Citator Output File\W r5-#d6X@`7Ͽ@# XX  X B r5-S  BFormat DownloadFormat Downloaded Document]iޛ r5- XX    \ #d6X@`7Ͽ@#"i~'^:DTddDDDd4D48ddddddddddDDd||||DXp||dp||ppL8LTdDddXdX8dd88X8ddddLL8dXXXLP8PlD4lTDDD4DDDDDDdDd8|d|d|d|d|dX|X|X|X|XD8D8D8D8dddddddddpX|ddddpXd|d|d|d|dXXlXx|X|X|X|XdddldldD8DdDDDddllXp8pHpDp@p8dtdddd|L|L|LdLdLdLllpHp8pTddddddplpLpLpLdpDddLpDpdx4ddC,CWddddddddddddddddddddddddddddddddddddddddNHxxHhdLdddddd8@d<@d<DDppdDDxddzHxxHkddDpd<"dxtldxxd2UzKsZuJ'"i~'^09]SS999S]+9+/SSSSSSSSSS99]]]Sxnxxng?Snxgx]nxxxxn9/9aS9S]I]I9S]/9]/]S]]I?9]SxSSIC%CW9+Wa999+999999S9]/xSxSxSxSxSxxInInInInI>/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNP#э #X\  P6G;>P#The Commission subsequently redesignated FOB as the "Compliance and Information Bureau." the issuance of a Notice of Apparent Liability to Capitol, and continued complaints, the Commission"(X,,,'" designated Capitol's PCP and radio common carrier ("RCC") paging licenses for revocation,"(X,,,'"  X-as well as finding Capitol apparently liable for forfeitures, to be determined at hearing.FJb {Oy-#X\  P6G;>P#э#X\  P6G;>P# See Capitol Radiotelephone, Inc., Hearing Designation Order, Order to Show Cause and Notice of  {OC-Opportunity for Hearing, 8 FCC Rcd 6300 (1993) ("HDO").F After  X-the hearing, the Administrative Law Judge ("ALJ") released an Initial Decision,.$Jb {O-#X\  P6G;>P#э#X\  P6G;>P# Capitol Radiotelephone, Inc., PR Docket No. 93231, Initial Decision of Administrative Law Judge Joseph  {O-Chachkin, 9 FCC Rcd 6370 (1994) ("I.D."). finding, inter  X-alia, that Capitol had not violated the Commission's rules and was qualified to remain a  X-Commission licensee.~Jb {O -#X\  P6G;>P#э See I.D. at  115.~  The Private Radio Bureau ("PRB")Jb yO -#X\  P6G;>P#э On December 1, 1994, the PRB was reorganized and renamed the "Wireless Telecommunications Bureau." filed exceptions to the I.D.,  X-which are now pending before the Review Board.  X-  X|- III. CONTENTIONS OF THE PARTIES  XN- x4. Capitol argues that RAM, the proposed assignee, has been found after evidentiary  X7-hearing to lack the requisite character qualifications to be a Commission licensee.o7Jb yO-#X\  P6G;>P#э Capitol Petition at 24.o Specifically, Capitol cites to certain of the ALJ's statements suggesting that RAM engaged in anticompetitive conduct in filing complaints against Capitol and that RAM, not Capitol,  X -violated the Commission's rules governing the use of shared frequencies.x 2 Jb {O-#X\  P6G;>P#э Id. at 3.x Capitol alleges  X -that, since RAM did not file exceptions to the I.D., the ALJ's findings concerning RAM's  X -licensee qualifications are conclusive upon RAM. Capitol also argues that the subject application is incomplete, in that it fails to explain the proposed transaction or any of its  X-material terms or conditions.l Jb {O -#X\  P6G;>P#э Id. at 2.l  Xj-x5. In response, AMI and RAM submit that Capitol lacks standing to protest the  XS-subject assignment application.q SV Jb yOZ -#X\  P6G;>P#э AMI/RAM Joint Opposition at 23.q  AMI and RAM contend that, since the Commission did not  X<-designate any issues in the hearing against RAM, any "findings" in the I.D. concerning  X'-RAM's qualifications are dicta and are not relevant to the Commission's disposition of this  X-application.i Jb {O$-#X\  P6G;>P#э Id. at 710.i AMI and RAM further state that the application contains all the information required by the Commission's rules and that they have no obligation to disclose additional  X-information at the behest of a competitor.a xJb {O (-#X\  P6G;>P#э Id.at 56.a Finally, the Applicants allege that Capitol's  X-Petition is a "strike" pleading, intended only to delay an assignment of licenses from one of"  ,**"  X-Capitol's competitors to another.j Jb {Oy-#X\  P6G;>P#э Id. at 1012.j  X-x6. In its Reply, Capitol states that, as a competitor of AMI in the markets concerned in this transaction, it has standing to protest the application. In the alternative, Capitol states that the Commission is obligated to review its allegations concerning RAM's character qualifications in any event, as a part of the Commission's overall public interest  Xx-responsibilities. Capitol argues that the ALJ's findings with regard to RAM are not dicta, but  Xc-rather, are part of the I.D.'s holding; and that RAM has waived any objection to those  XN-findings by failing to file exceptions to the I.D. and is precluded by the doctrine of collateral  X9-estoppel from relitigating its qualifications to be a Commission licensee.f 9ZJb yOD -#X\  P6G;>P#э Capitol Reply at 48.f  X" -  X -IV. DISCUSSION  X -x7. Under Section 309(d) of the Communications Act of 1934, as amended ("the Act"), parties filing a petition to deny an application must make specific allegations of fact sufficient  X -to show that a grant of the application would be prima facie inconsistent with the public  X-interest, convenience, and necessity.Jb {O5-#X\  P6G;>P#Ѝ Astroline Communications Co. L.P. v. FCC, 857 F.2d 1556, 1561 (D.C. Cir. 1988); 47 U.S.C.   {O-309(d)(1).  The Commission bases its threshold determination on  X-an evaluation of the petition and supporting affidavits.kFJb {Oz-#X\  P6G;>P#Ѝ Id. k Once the Commission determines  Xl-whether the petitioner has made a prima facie case under Section 309(d)(1), the Commission must determine whether the petitioner has presented a substantial and material question of fact  X@-upon which relief may be granted.t@Jb yO-#X\  P6G;>P#Ѝ 47 U.S.C.  309(d)(2).t If no such question is raised, the Commission will deny the petition and grant the application if it otherwise serves the public interest, convenience,  X-and necessity.  Based on the pleadings and supporting materials before us, we find that  X-Capitol has not raised substantial and material questions of fact and, therefore, we will deny its petition.  X-x8. As a preliminary matter, we find that, contrary to AMI/RAM's contention, Capitol has standing to file a petition to deny AMI/RAM's assignment application. In challenging an application, Section 309(d)(1) of the Act requires that a party filing a petition to deny  Xq-demonstrate partyininterest status.jqh Jb yO%-#X\  P6G;>P#э 47 U.S.C.  309(d)(1).j A petitioner need only establish that, as a direct  XZ-competitor of the applicant, it will suffer economic injury.,\Z Jb {O(-#X\  P6G;>P#э See Petition for Rule Making to Establish Standards for Determining the Standing of a Party to Petition to  {O(-Deny a Broadcast Application, 82 FCC 2d 89, 9596 (1980). See also Application of Pacific Telesis Mobile Services for a License to Provide Broadband PCS Service on Block B in the Los AngelesSan Diego Major"),**)"  {O-Trading Area, Order, DA 951413, released June 23, 1995., A showing of specific injury is"ZZ,**" not a prerequisite for establishment of standing; rather, the question of standing is independent  X-of the merits of the petition to deny or whether a prima facie showing has been made. ZJb {O-#X\  P6G;>P#э See Holiday Broadcasting Co., DebtorinPossession, Memorandum Opinion and Order and Notice of  {O-Apparent Liability, 10 FCC Rcd 4500 (1995) at 4501  5.   X-  Here, Capitol claims standing based upon its status as a competitor of AMI in the affected service areas. Capitol does not need to demonstrate that it will suffer a direct injury from the grant of the assignment application or that a denial of the application will prevent some economic harm to Capitol. Nor must it demonstrate, or even allege, as AMI/RAM suggests, that it will be subjected to increased or materially different competition as a result of the proposed assignment.  XJ-   X3-x9. Its procedural posture notwithstanding, we find meritless Capitol's contention that the application omits required information. Section 22.137 of the Commission's rules  X -specifies the application requirements for assignments of licenses and transfers of control.g Jb yOl-#X\  P6G;>P#э 47 C.F.R.  22.137.g Contrary to Capitol's assertions, there is no requirement in the Commission's rules that the parties to a proposed assignment provide the details of the proposed transaction. The application contains all of the information required by the rules and by FCC Form 490. Capitol argues further that, because it has filed a petition to deny the application, AMI and RAM should be required to provide greater detail concerning their transaction than is otherwise required by the rules. We disagree. The filing of a petition to deny does not confer a heightened obligation on the part of the applicants to disclose information beyond that required by the Rules. As a petitioner, Capitol has the burden of pleading sufficient  X6-facts, supported by affidavit, to establish a prima facie case that a grant of the subject  X!-application would not serve the public interest, convenience, and necessity.!FJb {O-#X\  P6G;>P#э See 47 U.S.C.  309(d)(1); see also Citizens for Jazz on WRVR, Inc. v. FCC, 775 F.2d 392 (D.C. Cir. 1985). Capitol has alleged no facts to indicate that the transaction between AMI and RAM is anything other than a sale of assets by one existing licensee to another.  X-   X-x 10. With respect to RAM's qualifications to remain a Commission licensee, we agree with AMI and RAM that the ALJ's statements concerning RAM's character qualifications are not binding upon our review of this assignment application. Only Capitol's qualifications and  X-actions were designated for a hearing, not those of RAM.Jb {O#-#X\  P6G;>P#э See Atlantic Broadcasting Co., 5 FCC 2d 717, 720721 (1966). Indeed, the ALJ explicitly acknowledged that he had "no jurisdiction" to enter a holding as to RAM in that hearing  XR-proceeding.tR2 Jb {O5'-#X\  P6G;>P#э See I.D. at n.33.t Therefore, the ALJ's discussion of RAM's character in that proceeding has no"R ,**"  X-bearing on whether RAM is qualified to hold Commission licenses.=Jb {Oy-#X\  P6G;>P#э See Policy Regarding Character Qualifications in Broadcast Licensing, Report, Order and Policy  {OC-Statement, 102 FCC 2d 1179 (1986), modified, 5 FCC Rcd 3252 (1990)(subsequent history omitted). =  X-x 11. Even if RAM, not Capitol, had been designated for hearing on character issues, we would not be compelled to deny its application to buy other licenses. Rather, the  X-Commission makes an ad hoc determination of whether an existing licensee, designated for  X-hearing on character issues with respect to one license, may buy or sell other licenses.$Jb yOd -#X\  P6G;>P#э Character Policy Statement Modification, 5 FCC Rcd at 3253. One  Xx-of the factors in such an analysis is the passage of time since the misconduct.xJb yO -#X\  P6G;>P#э Character Policy Statement, 102 FCC 2d at 1227. The misconduct alleged by Capitol concerned alleged rule violations by RAM from 1990 and  XJ-1991. Because four to five years have passed since those alleged violations occurredJDJb {O?-#X\  P6G;>P#э See, e.g., Folkways Broadcasting Co., Inc., 48 FCC 2d 739, 751 (ALJ 1972) (adjudging a fiveyear old finding of misconduct too remote to adversely affect character qualifications).  and the Private Radio Bureau determined at that time that only a warning was warranted with respect  X -to the specific 1991 violation6" Jb yOk-#X\  P6G;>P##:m\  P ;_ XP##x6X@ ; X@## d6X@`7 1@# # Xj\  P6G;_ XP##X\  P6G;>P#э #X\  P6G;>P#Following the FOB inspections of both Capitol's and RAM's facilities in August of 1991, the PRB  {O3-determined that the timer and monitoring device used by RAM violated the Commission's Rules. See Letter of Richard J. Shiben, Chief, Land Mobile and Microwave Division, to RAM Technologies, Inc. (July 30, 1992).  yO-The PRB warned RAM against future violations, but determined that no enforcement action was warranted. 6 we do not believe these facts impact adversely on RAM's qualifications to remain a Commission licensee.  X -x 12. Although Capitol has failed to raise a substantial and material question of fact, we find that its petition is not so frivolous as to constitute a "strike" pleading. A party alleging a strike petition must make a strong showing that delay is the primary and substantial purpose  X-behind a petition to deny. Jb {O-#X\  P6G;>P#э Radio Carrollton, et al., 69 FCC 2d 1139, 1151 (1978). AMI and RAM have made no such showing.  X{-  Xd-xw V. CONCLUSION AND ORDERING CLAUSES ă  X6-x 13. In short, we cannot accord the ALJ's discussion of RAM's qualifications any weight in this proceeding and the alleged rule violations, even if relevant, are too remote to be considered at this time. Capitol has pled no other allegations of fact that would call into  X-question RAM's qualifications as a licensee; rather, Capitol fails to raise any "substantial or material question of fact" under Section 309(d)(2) of the Act which would warrant a denial of RAM's application.  X-  X-x 14. Accordingly, IT IS ORDERED that the Petition to Deny or Dismiss filed by Capitol Radiotelephone, Inc. on February 10, 1995, is DENIED.  XP-x15. IT IS FURTHER ORDERED that the application of American Mobilphone, Inc.,"P,**" and RAM Technologies, Inc. for assignment of license for PLMS Stations KFQ936, KWT851, KJU819 and WRV945 in the Paging and Radiotelephone Service (File No. 23792CDAL95) IS GRANTED. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhRosalind K. Allen x` `  hhChief, Commercial Wireless Division x` `  hhWireless Telecommunications Bureau x` `  hh@