NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $// Order, Nextel Communications, Inc./Onecomm Corporation, DA 95-1677//$ $/90.153 Transfer or assignment of station authorization/$ RECORD ONLY Before the DA 95-1677 FEDERAL COMMUNICATIONS COMMISSION 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: July 28, 1995 Released: July 28, 1995 By the Chief, Wireless Telecommunications Bureau: Table of Contents Paragraph I. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5 II. Background . . . . . . . . . . . . . . . . . . . . . . . . . . .6-11 III. Pleadings. . . . . . . . . . . . . . . . . . . . . . . . . . . 12-20 IV. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . 21-36 A. Transfer of Unconstructed Licenses. . . . . . . . . . . . . 21-24 B. Warehousing of Frequencies. . . . . . . . . . . . . . . . . 25-29 C. Impact of Assignment on Competition . . . . . . . . . . . . 30-34 D. Ex Parte Issue. . . . . . . . . . . . . . . . . . . . . . . 35-36 V. Ordering Clauses . . . . . . . . . . . . . . . . . . . . . . . . 37-40 I. Overview 1. On August 12, 1994, OneComm Corp., 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"). OneComm also requested consent to transfer control of licenses held by a OneComm affiliate, C-Call Corp., to Nextel. These licenses were to be transferred as part of a merger in which OneComm would remain the same corporate entity and become a wholly-owned subsidiary of Nextel. 2. We solicited comments from the public to assist in determining whether the proposed transfer of control was in the public interest. Opponents argued 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 merger stated that it would enhance competition in the broader terrestrial Commercial Mobile Radio Service ("CMRS") marketplace among SMR, cellular, paging, and Personal Communications Services ("PCS") providers. After considering the record, we approved the transfer, which we believed would promote competition in the broader CMRS marketplace. However, our approval for the transfer of unconstructed authorizations was limited to those unconstructed stations with service contours that do not extend beyond the "footprint" of OneComm's constructed facilities. OneComm had 30 days to show that all applications for unconstructed facilities being transferred to Nextel had service contours that fell within the footprint of its existing wide-area system. All other authorizations for unconstructed stations could not be transferred unless OneComm could establish that such authorizations were incidental to the larger transaction. In addition, certain authorizations that OneComm proposed to transfer still were being challenged by various parties. We therefore allowed OneComm to transfer these authorizations, but specified that Nextel received these assignments subject to challenges. 3. Opponents of the assignment filed a Petition for Reconsideration of the OneComm Order. Petitioners argue that we failed to address questions of aggregate loading and spectrum warehousing, that the transfer of the licenses was anti-competitive, and that OneComm's unconstructed stations did not fit within the agency case law that allows such transfers. OneComm and Nextel respond that all of the unconstructed authorizations to be transferred are either within OneComm's footprint, or are incidental to the larger merger, and should be allowed to be transferred. OneComm also asserts that no evidence exists of frequency warehousing and that all the licenses it seeks to transfer were issued by the Commission. OneComm contends that the Bureau already has determined that the merger will not be anti-competitive. 4. After considering the record, we affirm our earlier decisions. We will allow OneComm to transfer to Nextel its unconstructed authorizations within its existing operational wide-area footprint. We additionally conclude that OneComm's unconstructed authorizations that are outside its footprint are incidental to the larger merger and allow OneComm to transfer those licenses. However, we specify that Nextel must complete construction of OneComm's unconstructed authorizations within OneComm's original extended implementation period. Moreover, in light of the Commission's recent Further Notice of Proposed Rule Making ("800 MHz proceeding") concerning the 800 MHz SMR service, we expressly condition the transfer of these authorizations that remain unconstructed pursuant to extended implementation authority on the outcome of the 800 MHz proceeding. 5. 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 outcome of 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 6. OneComm is a Denver-based, publicly-traded corporation that 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 known as the Motorola Integrated Dispatch Enhanced Network ("iDEN") in the Colorado Front Range and the I-5 corridor from Seattle, Washington to Portland, Oregon. 7. 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 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. 8. 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 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. 9. 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 specified 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. 10. At the time of the proposed merger, OneComm was in the midst of a system upgrade from its existing SMR analog system to a digital, low-power, wide-area system. A wide area SMR system reuses a large number of frequencies at multiple low-powered sites. These individual low-power base stations are operated through a centralized switching facility. Frequencies thus are reused more efficiently and mobile units can travel greater distances without experiencing lapses in service. Bureau opinions refer to the contiguous or overlapping services areas of existing stations as the "footprint" of the system. 11. The Commission's Part 90 rules have been revised to enable SMR licensees to seek authorization for extended implementation. Licensees may request up to a five years in which to implement their proposed system if it is an "integrated wide-area system" which requires more than one year to "plan, approve, fund, purchase, construct, and place in operation." Additionally, during this extended build-out period, licensees have de facto frequency exclusivity over those stations that are in operation as well as frequencies to which they are licensed. III. Pleadings 12. Pursuant to Section 90.153 of the Commission's rules, the Private Radio Bureau 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 were in the public interest, convenience or necessity. In response, Clark's Electronics, Teton Communications, Radio Service Company, Zundel's Radio, Business Radio, and Accu Comm (hereinafter collectively "Clarks") 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. On February 17, 1995, the Bureau released the OneComm Order. In it, the Bureau generally approved the merger. However, the grant of the transfer of the unconstructed licenses was conditioned on OneComm's showing within 30 days of the Order that all applications for unconstructed facilities being transferred to Nextel had service contours that fell within the footprint of its existing wide-area system. Additionally, unconstructed authorizations for systems that fell outside the footprint could not be transferred unless OneComm could establish that such authorizations were incidental to the larger merger. 13. In response, OneComm filed its Showing in Response to Commission's Request for Supplemental Information, which contained information concerning all of its unconstructed facilities. OneComm stated that out of 1,069 unconstructed facilities it wished to transfer to Nextel, only nine completely were outside its operational footprint. It argued that those nine unconstructed licenses all were "contiguous to authorizations sited within the footprint and follow the transportation corridors linking the cities served by OneComm." OneComm further alleged that these stations "are clearly incidental to a larger merger and pose no danger of speculation." OneComm also alleged that 210 unconstructed authorizations showed "minor service contour propagation beyond the underlying footprint." OneComm argued that such propagation was "de minimis" and thus fell "well within the 'incidental to a larger merger' standard applicable to this transaction." 14. Clarks Electronics, Teton Communications, Inc., Radio Service Company, Zundel's Radio, Inc., Business Radio, Inc., Accu Comm, Inc., Earl's Distributing Inc. and Earl's Wireless Communications (hereinafter "Clarks") collectively filed a Petition for Reconsideration ("Petition") on March 20, 1995. Clarks argued that the Bureau granted the transfer application prematurely and improperly, as we had not yet determined which unconstructed authorizations were within the footprint and which authorizations were incidental to the larger transaction. Clarks also argues that OneComm should not be allowed to transfer unconstructed authorizations that are incidental to the merger, because only unconstructed low-power stations incidental to the transaction may be transferred, and OneComm is attempting to transfer both high and low-power authorizations. Clarks alleges that the Bureau failed to address its earlier claims that OneComm is warehousing spectrum, and that OneComm has not provided the necessary aggregate loading. Finally, Clarks alleges that we used an improper standard to evaluate the merger's potential effect on competition and that the impact on the 800 MHz SMR market alone should have been analyzed. 15. On March 28, 1995, Clarks and OneComm filed a Joint Motion for Approval of Briefing Schedule. It stated that, because OneComm had filed its Supplemental Showing on the same date that Clarks filed it Petition, Clarks was not able to address the information supplied in OneComm's Supplemental Showing. OneComm and Clarks therefore agreed upon a briefing schedule and submitted it to us, which we approved on April 4, 1995. 16. Clarks also filed an Opposition to OneComm's Supplemental Showing, on April 7, 1995, and argued that OneComm was warehousing its unused spectrum. Clarks alleged that OneComm had violated Commission rules and attempted to deceive the Commission by representing that certain unconstructed stations were actually constructed and operational. 17. OneComm and Nextel oppose the Petition. They argue that the grant of the proposed assignment will produce significant public interest benefits by fostering the development of a nationwide SMR system that will serve as a competitive alternative to existing wireless and future PCS offerings. They assert that the assignment is in the public interest because it will promote competition in the CMRS marketplace, thereby increasing the number of services available to consumers. They also state that agency case law clearly allows the transfer of low and high-power authorizations for purposes of converting to a wide-area digital SMR system. OneComm also alleges that a "grid" mixture of power levels is common in a wide-area system, which requires sufficient frequency to ensure frequency compatibility and spectrum depth to support the movement of users across wider areas. 18. OneComm argues that it is not warehousing spectrum, but rather aggregating spectrum in order to employ digital technologies as part of its conversion to a wide-area network. In response to Clarks' allegations that OneComm misrepresented its footprint to the Bureau, OneComm states that it had mistakenly included in its list of operational analog stations two stations which were not yet operational. OneComm provided a new list of operational stations that form its footprint and asserts that the removal of these two stations does not affect its footprint of contiguous and overlapping areas of service. OneComm also alleges that no new material questions of fact were raised concerning aggregate loading and frequency warehousing issues and that these issues already were addressed in the OneComm Order. 19. On January 13, 1995, the Commission received a letter from Wiztronics, Inc. Wiztronics, a company that offers two-way communications sales and service in Washington state, alleges that OneComm already has a monopoly in the western states. We consider Wiztronic's arguments to the extent they relate to the competitive impact of the proposed OneComm-Nextel transfer of control. 20. OneComm filed a letter with the Commission on June 5, 1995. In it, OneComm argues that Clarks raises no new issues, that the Bureau already approved the transfer, and that the Bureau unconditionally should approve the transfer in an expedited manner. On June 7, 1995, Clarks' attorneys filed a letter with the Commission, stating that OneComm's June 5 letter had gone outside regular channels of staff authority, had violated the Commission's ex parte rules, and should be stricken from the record. On June 12, 1995, OneComm's attorneys replied and denied that the OneComm letter of June 5 was an ex parte presentation. OneComm's attorneys also stated that Clarks' counsel had argued the merits of its case in its June 7 letter but never had served OneComm, and thus had violated our ex parte rules. OneComm therefore urged us to strike Clarks' letter of June 7. On June 12, 1995, Clarks' attorneys filed another letter, stating that OneComm and its counsel inadvertently had been left off the service list of their June 7 letter and that they sent a copy to OneComm's counsel via messenger as soon as they realized their mistake. IV. Discussion A. Transfer of Unconstructed Licenses 21. 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 incidental to underlying constructed high-power analog SMR licenses if the analog 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 already has been granted exclusivity throughout its footprint, based on the area covered by its constructed and operating base stations. 22. In addition, the Commission's rules 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, as stated in the OneComm Order, "legitimate mergers or acquisitions should not be disrupted simply because the acquired company has an unbuilt facility." In the OneComm Order, the Bureau granted the transfer of unbuilt facilities with service contours that do not extend beyond OneComm's existing footprint. We additionally granted the transfer of unconstructed facilities with service contours outside OneComm's footprint if OneComm could establish that they were incidental to the larger transaction. 23. In the OneComm Showing filed in response to this request, OneComm states that of 1,069 unconstructed facilities it wishes to transfer to Nextel, nine authorizations are completely outside its operational footprint. OneComm argues that those nine unconstructed licenses all are "contiguous to authorizations sited within the footprint and follow the transportation corridors linking the cities served by OneComm." OneComm further alleges that these stations "are clearly incidental to a larger merger and pose no danger of speculation." OneComm states that 210 unconstructed authorizations show "minor service contour propagation beyond the underlying footprint." OneComm argues that such service contour propagation is "de minimis" and thus falls "well within the 'incidental to a larger merger' standard applicable to this transaction." OneComm further states that the base stations associated with these 210 authorizations are all within its footprint. 24. Discussion. Clarks alleged that OneComm deliberately misrepresented that its "licensed analog base stations are substantially unconstructed" and that OneComm misled the Bureau into believing that its footprint contained "vastly more" constructed operating frequencies than it actually does. In response, OneComm reviewed its list of constructed analog stations and made eliminated two stations that it stated it mistakenly had included. This deletion made only a minor change in OneComm's footprint and did not change the fact that OneComm has a footprint of constructed analog stations with contiguous or overlapping service contours. Clarks has presented no specific evidence of deliberate misrepresentation. Clarks makes no additional allegations that raise a material question of fact regarding OneComm's footprint. OneComm has certified that all of its unconstructed authorizations it proposes to transfer to Nextel are either fully within its footprint, or are "incidental" to the larger merger with Nextel. OneComm also represents that the unconstructed authorizations with "minor service contour propagation" beyond the underlying footprint are associated with a constructed base station within the footprint. Because OneComm's unconstructed authorizations fall within the contiguous and overlapping service area of OneComm's constructed facilities, or are incidental to the larger merger, we consider them to be components of an existing system that is in the process of being reconfigured. Therefore, we affirm the Bureau's holding that OneComm may transfer all of its unconstructed authorizations that are within the footprint. We additionally grant OneComm's request to assign those unconstructed authorizations outside their footprint that are incidental to the larger transaction with Nextel. B. Warehousing of Frequencies 25. Background. Clarks claims that OneComm is warehousing frequencies and should not be allowed to transfer many of its unconstructed authorizations for such frequencies. Clarks states that agency case law only allows a licensee to obtain authorizations for wide-area service in congested service areas where no additional 800 MHz channels are available. Furthermore, Clarks alleges that the Commission only allows authorizations for frequencies directly related to a licensee's existing, constructed analog frequencies, but that OneComm is attempting to transfer authorizations for new frequencies. Clarks claims that in Washington, Oregon and Idaho alone, OneComm is basing the transfer of over 4,000 unconstructed authorizations on its 156 constructed analog channels in the area. 26. OneComm responds that the Commission has encouraged and approved wide-area frequency protection based on applications for high and low-power stations, in order to give the licensee de facto frequency exclusivity. OneComm argues that agency case law encourages such filing, and then requires a wide-area system license to file applications that define the ultimate locations of wide-area stations within its footprint. OneComm claims that it needs these additional frequencies for its wide-area network. 27. Discussion. We agree with OneComm that our precedent authorizes a licensee to file for low-power stations as part of its conversion to a wide-area digital system, based on the licensee's existing high-power footprint. The additional frequencies eventually are used as part of the wide-area system and must be licensed individually after the implementation period expires. The Commission has held that a licensee has de facto temporary frequency exclusivity throughout its footprint during the reconfiguration The low-power stations receive the frequency protection that comes from the "umbrella of protection" of the high-powered stations for the duration of the five-year construction period. At the end of the construction period, each station on the wide-area system must be licensed individually. 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, we allow OneComm to transfer its unconstructed authorizations based on its existing high-power footprint, as it has de facto temporary frequency exclusivity throughout its footprint during its conversion to a digital, wide-area system. 28. Commission rules specify that at the end of any licensee's extended implementation period, "authorizations for all stations not constructed and placed in operation will be cancelled." 47 C.F.R.  90.629(c). Therefore, to ensure that Nextel's systems are constructed and service offered efficiently, we require Nextel to step into OneComm's shoes, as the new licensee, and complete construction of all unconstructed authorizations within OneComm's implementation period. We will not grant Nextel any time extensions to OneComm's five-year wide-area implementation grant. 29. Additionally, we note that the Commission currently is re-evaluating extended implementation authority for 800 MHz local SMR systems in a Further Notice of Proposed Rule Making. This Further Notice specifically seeks comments on how "existing licenses with extended implementation periods should be treated." We therefore condition the grant of the transfer of control of any licenses that have been authorized extended implementation, and any corresponding implementation periods for the licenses, on the outcome of this Further Notice. C. Impact of Assignment on Competition 30. Background. Clarks argues that OneComm's assignment of licenses to Nextel is anti-competitive, violates antitrust principles, and is not in the public interest. Clarks alleges that the 800 MHz SMR market is a separate product market in which Nextel is in a position to exercise monopoly power. Clarks states that it has filed a Petition for Reconsideration to the CMRS Third Report and Order requesting that the Commission revisit its analysis of competition among CMRS services. Clarks incorporates those arguments into this Petition. In response, OneComm argues that the issue of the impact of the merger on competition already has been decided in the OneComm Order, and that Clarks raises no new issues or arguments in its Petition. 31. Discussion. In the OneComm Order, the Bureau found a product market of mobile wireless services as a whole, which was broader than that proposed by OneComm,. Later, in the Motorola Order, the Bureau refined its analysis and found a product market of terrestrial CMRS -- cellular, SMR, 220 MHz, interconnected Business Radio Service, conventional dispatch, paging, and broadband and narrowband PCS offerings. We now incorporate this latter finding as the product market in this case. The finding does not alter our earlier conclusion that the proposed assignment will not violate antitrust principles. Within this product market, consisting of almost 200 MHz of spectrum, the proposed assignment would bring less than 10 MHz under Nextel's control. More generally, the Bureau evaluated the competitive impact of Nextel's proposed nationwide network and determined that if it is successful, it will foster overall competition in the flourishing CMRS marketplace and thereby would promote technological innovation and act as a check on price increases. Furthermore, inherent in these proposed assignments is Nextel's plan to introduce a single device that will perform telephone, dispatch, and paging functions. This will be a pro-competitive innovation in the CMRS marketplace and will position mobile telephone, dispatch, and paging companies to compete directly with each other. 32. The DOJ has reviewed Nextel's proposed acquisition of OneComm and several other companies and has approved the mergers, subject to certain restrictions not affecting the 800 MHz SMR service. Moreover, despite the fact the DOJ used a different product market than the Bureau did in its analysis, its conclusion about the merger's competitive impact is consistent with ours. 33. In addition, to prevent CMRS providers from restricting competition by aggregating spectrum, the Commission has 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 also determined that because SMR spectrum is more encumbered than other CMRS spectrum, a maximum of 10 MHz of SMR spectrum will be attributed to any one entity for purposes of imposing the overall CMRS cap, even if that entity has more than 10 MHz of SMR spectrum. Here, the proposed license assignments will leave Nextel with no more than 10 MHz of spectrum in any one place, well within the 45 MHz limit of our spectrum caps. Moreover, we re-iterate our earlier finding that since Nextel and OneComm generally serve different parts of the country, their consolidation will not increase concentration significantly in any location. 34. After examining Clarks' Petition, we find that no material issues of fact have been raised on the impact of the proposed merger on competition. Therefore, upon reconsideration we see no reason to change our earlier decision that the OneComm/Nextel merger will enhance competition in the CMRS marketplace, and we reject Clarks' allegations that the merger will be anti-competitive. D. Ex Parte Issues 35. Background. An application for transfer of licenses is an adjudicatory proceeding. 47 C.F.R.  1.1202(d). If formally opposed, an adjudicative proceeding becomes restricted and, unless exempted, ex parte presentations are prohibited. 47 C.F.R.  1.1208. Clarks' Petition was opposed formally and therefore, this proceeding is restricted. 36. Discussion. In their letter of June 5, 1995, OneComm requested an expedited resolution of the Petition. However, this letter was not an ex parte presentation because it was served on all parties to the proceeding at the same time it was served on the Commission. Therefore, we have considered the arguments in this letter and have added it to the record. On the other hand, the Clarks' June 7, 1995 Letter was not served on OneComm or its counsel of record. Clarks claimed that this lack of service was an inadvertent mistake and that it immediately corrected the situation by sending a copy via messenger to OneComm's counsel. Because no prejudice has occurred as a result of this ex parte violation, we therefore have considered the contents of the Clarks June 7, 1995 Letter and have included it in the record. V. Ordering Clauses 37. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 303(r), 310(d) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(r), and 310(d), Section 90.153 of the Commission's rules, 47 C.F.R.  90.153, and the authority delegated by Section 0.331 of the Commission's rules, 47 C.F.R.  0.331, that OneComm's application seeking consent to assign licenses to Nextel is GRANTED. 38. IT IS FURTHER ORDERED that Clarks' Petition is DENIED. 39. IT IS FURTHER ORDERED that Nextel must complete construction of the transferred unconstructed authorizations within OneComm's extended implementation grant. 40. IT IS FURTHER ORDERED that OneComm and Nextel have one-hundred eighty days (180) 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 Comments January 13, 1995 Letter to FCC from Wiztronics, Inc. ("Wiztronics Comments") March 20, 1995 OneComm Showing in Response to Commission's Request for Supplemental Information ("OneComm Showing") Clarks Petition for Reconsideration ("Petition") March 28, 1995 Joint Motion for Approval of Briefing Schedule ("Joint Motion") April 7, 1995 Clarks Opposition to OneComm Supplemental Showing ("Clarks Opposition") April 17, 1995 OneComm's Opposition to Petition for Reconsideration and Reply to Opposition to OneComm's Supplemental Showing ("OneComm Opposition") Nextel's Opposition to Petition for Reconsideration of Nextel Communications, Inc ("Nextel Opposition") June 5, 1995 Letter to Chairman Reed E. Hundt from One Comm ("OneComm June 5 Letter") June 7, 1995 Letter to Chairman Reed E. Hundt from Ross & Hardies for Clarks Electronics ("Clarks June 7 Letter") June 12, 1995 Letter to Chairman Reed E. Hundt from Morrison & Foerster for OneComm ("OneComm June 12 Letter") June 13, 1995 Letter to William F. Caton from Ross & Hardies for Clarks ("Clarks June 13 Letter") 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. In the Matter of Applications of Nextel Communications, Inc., for Transfer of Control of OneComm Corporation, Order, 10 FCC Rcd 3361, DA 95-263, rel. February 17, 1995, recon. pending ("OneComm Order")