WPCk 2MBVRK Z#|j 7jC:,3Xj\  P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWddddddddddddddddddddddddddddddddddddddddNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHwppDXd<"dxtldpxxdHP LaserJet 4 (Additional) - LPT2HPLA4ADD.PRSXP\  P6Q\uEXP2/  %#|j    BoldTimes New Roman ItalicTimes New RomanTimes New Roman BoldHPLA4MPC.PRSXP\  P6Q\8J?XP2o aKXX     "i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd -ԍ Id.3 OneComm has implemented advanced digital technology known as the Motorola Integrated Dispatch Enhanced Network  X1-("iDEN")1 X-ԍ This technology formerly was known as the Motorola Integrated Radio System, or "MIRS." in the Colorado Front Range and the I5 corridor from Seattle, Washington to  X -Portland, Oregon.;  X]-ԍ Id. at 45.;  X -x7. Nextel is a publiclytraded 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, alldigital integrated network capable of providing services  X -similar to existing cellular and future PCS offerings.C E  X-ԍ OneComm Order at 3.C Nextel currently provides and expects to  X-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  Xb-OneComm.b  X - hԍ On August 5, 1994, Nextel also entered into an agreement to acquire Dial Page, which holds  X- h0800 MHz licenses in twelve Southwestern states.  See U.S. v. Motorola, Inc. and Nextel  Xi- hjCommunications, Inc., Case No. 1:94CV02331 (Hogan, J.) (D.C., District of Columbia, filed Oct. 27, 1994), Competitive Impact Statement ("CIS") at 8.  X4-x8. In addition to acquiring regional companies, Nextel entered into an "Agreement and  X-Plan of Contribution and Merger" ("Agreement") with Motorola, Inc. ("Motorola") on August 4,  X-1994.C Xn$-ԍ  OneComm Order at 4.C 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  X-use Motorola's MIRS technology to establish its widearea network.3j X'-ԍ Id.3 MIRS can produce" +o)o)" approximately a fifteenfold increase in SMR system capacity over an analog system and provide  X-the infrastructure for a seamless nationwide SMR system.3 Xb-ԍ Id.3  X-x9. The U.S. Department of Justice ("DOJ") has reviewed the NextelMotorola Agreement, as well as the OneComm and Dial Page transactions, to determine whether Nextel's  X-acquisitions violate U.S. antitrust laws. DOJ approved the Nextel acquisitions in a Proposed Final Judgment, subject to Nextel's divestiture of fortytwo 800 MHz channels in Atlanta once  X_-the Dial Page transaction is completed. _{ X - hԍ U.S. v. Motorola, Inc. and Nextel Communications, Inc., Civil Action No. 94 2311 (D.D.C.)  X; - h("DOJ Proposed Final Judgment") at 7. The Proposed Final Judgment remains subject to final  happroval by the court. Because our analysis in this Order is based on the Commission's own  hhpolicies and rules, however, our decision to grant OneComm's application is not conditioned on such approval.  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  X1-in thirteen specified cities.91 X-ԍ  Id. at 5.9 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  X -entry of the Proposed Final Judgment.3  XO-ԍ Id.3 x 10. At the time of the proposed merger, OneComm was in the midst of a system upgrade  X -from its existing SMR analog system to a digital, lowpower, widearea system. A wide area  X -SMR system reuses a large number of frequencies at multiple lowpowered sites. N  X- hԍ Letter from Ralph A. Haller, Chief, Private Radio Bureau to David Weisman, 8 FCC Rcd  XT-143, n. 1 (1993) ("Weisman Letter"). These individual lowpower base stations are operated through a centralized switching facility.  Xy-Frequencies thus are reused more efficiently and mobile units can travel greater distances without  Xb-experiencing lapses in service.3b  X-ԍ Id.3 Bureau opinions refer to the contiguous or overlapping services  XK-areas of existing stations as the "footprint" of the system.2Kb X^!-ԍ Id.2  X-x 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 widearea system" which requires more  X-than one year to "plan, approve, fund, purchase, construct, and place in operation."F X'-ԍ 47 C.F.R.  90.629(a)(2).F " +o)o)"  X-Additionally, during this extended buildout period, licensees have de facto frequency exclusivity  X-over those stations that are in operation as well as frequencies to which they are licensed.I  Xd-ԍ See Weisman Letter.I   X- III.xPleadings  X-x 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.  X -On February 17, 1995, the Bureau released the OneComm Order.R! { X-ԍ OneComm Order, 10 FCC Rcd at 3361.R In it, the Bureau generally approved the merger. However, the grant of the transfer of the unconstructed licenses was  X -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  X-footprint of its existing widearea system.=". X^-ԍ Id. at 1617.= Additionally, unconstructed authorizations for systems that fell outside the footprint could not be transferred unless OneComm could establish  XQ-that such authorizations were incidental to the larger merger.3#Q X-ԍ  Id.3  X#-x 13. In response, OneComm filed its Showing in Response to Commission's Request for  X -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  X-Nextel, only nine completely were outside its operational footprint.G$ X#-ԍ  OneComm Showing at 46.G It argued that those nine unconstructed licenses all were "contiguous to authorizations sited within the footprint and follow  X-the transportation corridors linking the cities served by OneComm."3%G  X"-ԍ  Id.3 OneComm further alleged  X-that these stations "are clearly incidental to a larger merger and pose no danger of speculation."9&  XD%-ԍ Id. at 3.9 OneComm also alleged that 210 unconstructed authorizations showed "minor service contour" & +o)o)n"  X-propagation beyond the underlying footprint."9' Xy-ԍ Id. at 5.9 OneComm argued that such propagation was "de minimis" and thus fell "well within the 'incidental to a larger merger' standard applicable to this  X-transaction."3({ X-ԍ Id.3  X-x 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  Xv-Communications (hereinafter "Clarks") collectively filed a Petition for Reconsideration  Xa-("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  X5-were within the footprint and which authorizations were incidental to the larger transaction.@)5. X-ԍ Petition at 58.@ Clarks also argues that OneComm should not be allowed to transfer unconstructed authorizations that are incidental to the merger, because only unconstructed lowpower stations incidental to the transaction may be transferred, and OneComm is attempting to transfer both high and lowpower  X -authorizations.<*  Xk-ԍ  Id. at 912.< Clarks alleges that the Bureau failed to address its earlier claims that OneComm  X -is warehousing spectrum, and that OneComm has not provided the necessary aggregate loading.=+  X-ԍ  Id. at 1316.= 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  X}-analyzed.=,}G  Xu-ԍ  Id. at 1718.=  XO-x15. On March 28, 1995, Clarks and OneComm filed a Joint Motion for Approval of  X:-Briefing Schedule. It stated that, because OneComm had filed its Supplemental Showing on the  X%-same date that Clarks filed it Petition, Clarks was not able to address the information supplied in  X-OneComm's Supplemental Showing.B-  X -ԍ  Joint Motion at 2.B OneComm and Clarks therefore agreed upon a briefing schedule and submitted it to us, which we approved on April 4, 1995.  X-x16. Clarks also filed an Opposition to OneComm's Supplemental Showing, on April 7,  X-1995, and argued that OneComm was warehousing its unused spectrum.O.  X&-ԍ  Clarks Opposition at 39.O Clarks alleged that OneComm had violated Commission rules and attempted to deceive the Commission by"`. +o)o)"  X-representing that certain unconstructed stations were actually constructed and operational.</ Xy-ԍ Id. at 912.<  X-x17. OneComm and Nextel oppose the Petition. They argue that the grant of the proposed assignment will produce significant public interest benefits by fostering the  X-development of a nationwide SMR system that will serve as a competitive alternative to existing  X-wireless and future PCS offerings.L0{ X-ԍ OneComm Opposition at 2325.L They assert that the assignment is in the public interest  Xx-because it will promote competition in the CMRS marketplace, thereby increasing the number of  Xa-services available to consumers.I1a. X@ -ԍ  Nextel Opposition at 34.I They also state that agency case law clearly allows the transfer of low and highpower authorizations for purposes of converting to a widearea digital  X3-SMR system. OneComm also alleges that a "grid" mixture of power levels is common in a widearea system, which requires sufficient frequency to ensure frequency compatibility and  X -spectrum depth to support the movement of users across wider areas.L2  X-ԍ OneComm Opposition at 1213.L  X -x18. 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 widearea  X -network.L3  X-ԍ OneComm Opposition at 1018.L 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  Xd-stations that form its footprint and asserts that the removal of these two stations does not affect  XM-its footprint of contiguous and overlapping areas of service.L4MG  XE-ԍ OneComm Opposition at 2834.L OneComm also alleges that no new material questions of fact were raised concerning aggregate loading and frequency  X-warehousing issues and that these issues already were addressed in the OneComm Order.;5  X-ԍ Id. at 45.; x` `  X-x19. On January 13, 1995, the Commission received a letter from Wiztronics, Inc.6G  XQ#- hԍ This letter was not forwarded to the Legal Branch of the Wireless Telecommunications  X#- hjBureau until April 18, 1995, and thus was not addressed in the OneComm Order. We therefore address it now. Wiztronics, a company that offers twoway 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 OneCommNextel transfer of control. "6 +o)o)"Ԍx20. 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  X-the Bureau unconditionally should approve the transfer in an expedited manner.F7 XK-ԍ  OneComm June 5 Letter.F On June 7, 1995, Clarks' attorneys filed a letter with the Commission, stating that OneComm's June 5 letter  X-had gone outside regular channels of staff authority, had violated the Commission's ex parte  X-rules, and should be stricken from the record.E8{ X-ԍ Clarks June 7 Letter.E On June 12, 1995, OneComm's attorneys replied  Xx-and denied that the OneComm letter of June 5 was an ex parte presentation.G9x. XW -ԍ  OneComm June 12 Letter.G OneComm's attorneys also stated that Clarks' counsel had argued the merits of its case in its June 7 letter but  XL-never had served OneComm, and thus had violated our ex parte rules.3:L X-ԍ  Id.3 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  X -they realized their mistake.F;  X7-ԍ  Clarks June 13 Letter.F    X - IV.xDiscussion  X- xA. Transfer of Unconstructed Licenses  X-  Xh-x21. 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  X#-system prior to the completion of construction of the facility.J<#G  X-ԍ See 47 C.F.R.  90.609.J Section 90.609 does not apply, however, to the transfer of unconstructed authorizations for lowpower digital stations that are incidental to underlying constructed highpower 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  X-the initial stages of a conversion, we grant de facto temporary frequency exclusivity to a licensee  X-throughout its "footprint."=K  XF%- h.ԍ See Fleet Call, Inc., Memorandum Opinion and Order, 6 FCC Rcd 1533, recon dismissed,  X%- h-6 FCC Rcd 6989 (1991) ("Fleet Call"); see also September 27, 1993 letter from Chief, Private Radio  X&-Bureau to Gerald S. McGowan (September 27, 1993) ("McGowan Letter"). We have defined the footprint of a system as "the contiguous and  X-overlapping service areas of stations that are (1) constructed and placed in operation, and (2)" = +o)o)n"  X-currently licensed to or managed by the applicant."X> Xy-ԍ See Weisman Letter, 8 FCC Rcd 143, n. 2.X 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.  X-x22. In addition, the Commission's rules provide a limited exception to the prohibition  X-against transferring unconstructed stations. The CMRS Third Report and Order states that the  Xx-transfer of unbuilt stations is permitted if the transfer is part of a "bona fide sale of an ongoing  Xc-business to which the licenses are incidental."K?Ic{ X - hԍ See Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory  hjTreatment of Mobile Services, GN Docket No. 93252, Third Report and Order, 9 FCC Rcd 7988,  X -8160 et seq. ("CMRS Third Report and Order").K The "incidental" exception is embodied in  XL-agency case law, which holds that such instances present little risk of speculation.}@L X-ԍ  See, e.g., Fleet Call, 6 FCC Rcd at 1534; see also McGowan Letter at 2.} Therefore,  X5-as stated in the OneComm Order, "legitimate mergers or acquisitions should not be disrupted  X -simply because the acquired company has an unbuilt facility."HAI ? X- h=ԍ See, e.g., Airsignal International, Inc., Memorandum Opinion and Order, 81 FCC 2d 472  X- hK(1980); see also In re Applications of James F. Rill, Memorandum Opinion and Order, FCC 86251 (released May 27, 1986) (1986 WL 291785). H In the OneComm Order, the Bureau granted the transfer of unbuilt facilities with service contours that do not extend beyond  X -OneComm's existing footprint.GB P  X-ԍ  OneComm Order at 1617.G 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.  X-x23.  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  Xl-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  X>-linking the cities served by OneComm."EC>  X-ԍ  OneComm Showing at 3.E OneComm further alleges that these stations "are  X'-clearly incidental to a larger merger and pose no danger of speculation."9D'  X"-ԍ  Id. at 5.9 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  X-falls "well within the 'incidental to a larger merger' standard applicable to this transaction."3Ei X&-ԍ  Id.3  X-OneComm further states that the base stations associated with these 210 authorizations are all" E +o)o)"  X-within its footprint.3F Xy-ԍ Id.3  X-x24. Discussion. Clarks alleged that OneComm deliberately misrepresented that its  X-"licensed analog base stations are substantially unconstructed"GG{ X-ԍ Clarks Opposition at 9.G and that OneComm misled the  X-Bureau into believing that its footprint contained "vastly more" constructed operating frequencies  X-than it actually does.3H. Xl -ԍ Id.3 In response, OneComm reviewed its list of constructed analog stations  Xv-and made eliminated two stations that it stated it mistakenly had included.LIv X -ԍ OneComm Opposition at 3133.L This deletion made only a minor change in OneComm's footprint and did not change the fact that OneComm has a  XH-footprint of constructed analog stations with contiguous or overlapping service contours.3JH X-ԍ Id.3 Clarks has presented no specific evidence of deliberate misrepresentation. Clarks makes no additional  X -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  X -the underlying footprint4K G  X-ԍ  Id. 4 are associated with a constructed base station within the footprint.EL  Xi-ԍ  OneComm Showing at 5.E 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  Xy-consider them to be components of an existing system that is in the process of being  Xb-reconfigured.MKb  X- hԍ  See Fleet Call, 6 FCC Rcd at 1536; see also In the Matter of Applications of Motorola, Inc.  Xp- hfor Consent to Assign 800 MHz Licenses to Nextel Communications, Order, __ FCC Rcd __, DA  X -95890, rel. Apr. 27, 1995, recon. pending ("Motorola Order") at 13. Therefore, we affirm the Bureau's holding that OneComm may transfer all of its  XK-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  X-the larger transaction with Nextel.)NE X$- hLԍ Note that the transfer of all licenses, constructed and unconstructed, is contingent upon  hnotification from the parties that the underlying transaction has been consummated within 180 days of the release date of this Order.) " N +o)o)'"Ԍ X-x B. Warehousing of Frequencies  X-x25. Background. Clarks claims that OneComm is warehousing frequencies and should  X-not be allowed to transfer many of its unconstructed authorizations for such frequencies.KO X4-ԍ Clarks Opposition at 1214.K Clarks states that agency case law only allows a licensee to obtain authorizations for widearea  X-service in congested service areas where no additional 800 MHz channels are available.3P{ X-ԍ Id.3 Furthermore, Clarks alleges that the Commission only allows authorizations for frequencies  X_-directly related to a licensee's existing, constructed analog frequencies, but that OneComm is  XH-attempting to transfer authorizations for new frequencies.3QH. X' -ԍ  Id.3 Clarks claims that in Washington, Oregon and Idaho alone, OneComm is basing the transfer of over 4,000 unconstructed  X -authorizations on its 156 constructed analog channels in the area.:R  X-ԍ Id. at 15.:  X -x26. OneComm responds that the Commission has encouraged and approved widearea  X -frequency protection based on applications for high and lowpower stations, in order to give the  X -licensee de facto frequency exclusivity.LS  X-ԍ  OneComm Opposition at 1015.L OneComm argues that agency case law encourages such filing, and then requires a widearea system license to file applications that define the  X-ultimate locations of widearea stations within its footprint.=TG  X-ԍ Id. at 1213.= OneComm claims that it needs  X{-these additional frequencies for its widearea network.:U{  X&-ԍ  Id. at 15.:  XM-x27. Discussion. We agree with OneComm that our precedent authorizes a licensee to file  X6-for lowpower stations as part of its conversion to a widearea digital system, based on the  X-licensee's existing highpower footprint.RV  X}!-ԍ See Fleet Call, 6 FCC Rcd at 1535.R The additional frequencies eventually are used as part  X-of the widearea system and must be licensed individually after the implementation period  X-expires. The Commission has held that a licensee has de facto temporary frequency exclusivity  X-throughout its footprint during the reconfiguration3W` X%-ԍ Id.3 The lowpower stations receive the  X-frequency protection that comes from the "umbrella of protection" of the highpowered stations" W +o)o)"  X-for the duration of the fiveyear construction period.3X Xy-ԍ Id.3 At the end of the construction period,  X-each station on the widearea system must be licensed individually.3Y{ X-ԍ Id.3 Such authorizations for lowpower 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  X-on its existing highpower footprint, as it has de facto temporary frequency exclusivity throughout its footprint during its conversion to a digital, widearea system. x28. 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 fiveyear widearea  X -implementation grant.PZ . X-ԍ See 47 C.F.R.  90.629(a)(2).P  X-x29. Additionally, we note that the Commission currently is reevaluating extended  X{-implementation authority for 800 MHz local SMR systems in a Further Notice of Proposed Rule  Xf-Making.[f X-ԍ See Further Notice of Proposed Rule Making, 59 Fed. Reg. 60,111 (November 4, 1994). This Further Notice specifically seeks comments on how "existing licenses with  XQ-extended implementation periods should be treated."F\Q X-ԍ  Id. at  4748.F We therefore condition the grant of the  X:-transfer of control of any licenses that have been authorized extended implementation, and any  X#-corresponding implementation periods for the licenses, on the outcome of this Further Notice.  X-x C. Impact of Assignment on Competition  X-x30. Background. Clarks argues that OneComm's assignment of licenses to Nextel is  X-anticompetitive, violates antitrust principles, and is not in the public interest.F]G  X"-ԍ See Petition at 1718.F Clarks alleges that the 800 MHz SMR market is a separate product market in which Nextel is in a position to  X-exercise monopoly power.3^  X/&-ԍ  Id.3 Clarks states that it has filed a Petition for Reconsideration to the  Xo-CMRS Third Report and Order requesting that the Commission revisit its analysis of competition"o ^ +o)o)O"  X-among CMRS services.3_ Xy-ԍ  Id.3 Clarks incorporates those arguments into this Petition.3`{ X,-ԍ  Id.3 In response, OneComm argues that the issue of the impact of the merger on competition already has been  X-decided in the OneComm Order, and that Clarks raises no new issues or arguments in its  X-Petition.La. X-ԍ OneComm Opposition at 1718.L  X-x31. Discussion. In the OneComm Order, the Bureau found a product market of mobile  X~-wireless services as a whole, which was broader than that proposed by OneComm,.Ib~ X -ԍ OneComm Order at 28.I Later, in  Xg-the Motorola Order, the Bureau refined its analysis and found a product market of terrestrial  XR-CMRS cellular, SMR, 220 MHz, interconnected Business Radio Service, conventional  X;-dispatch, paging, and broadband and narrowband PCS offerings.Jc; X-ԍ Motorola Order at 17.J 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  X -market, consisting of almost 200 MHz of spectrum, the proposed assignment would bring less  X -than 10 MHz under Nextel's control.qd G  X-ԍ  See discussion of SMR spectrum on CMRS cap,  32, infra.q More generally, the Bureau evaluated the competitive impact of Nextel's proposed nationwide network and determined that if it is successful, it will  X -foster overall competition in the flourishing CMRS marketplaceJe  X\-ԍ See OneComm Order at 910.J and thereby would promote  X-technological innovation and act as a check on price increases.f  X- hLԍ  CMRS Third Report and Order, 9 FCC Rcd at 8009 et seq. While the Commission noted  h/that PCS licensees in the near future may compete with existing CMRS providers, it did not  hyspecifically include PCS in its market analysis because at the time, there were no PCS operators offering service. Furthermore, inherent in these  X-proposed assignments is Nextel's plan to introduce a single device that will perform telephone,  Xl-dispatch, and paging functions.Jglj X"-ԍ Motorola Order at 16.J This will be a procompetitive innovation in the CMRS marketplace and will position mobile telephone, dispatch, and paging companies to compete  X>-directly with each other.h> X &- hZԍ Even if we were to accept petitioner's contention that the product market should be defined  hnarrowly to consist of SMR or dispatch service, the procompetitive benefits of Nextel's innovative  htelephonedispatchpaging device significantly outweigh any anticompetitive effects within such a smaller product market.  ">h +o)o)"Ԍ X-ԙx32. 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  X-MHz SMR service.i XK- hԍ U.S. v. Motorola, Inc. and Nextel Communications, Inc., Civil Action No. 94 2331 (D.D.C.) at 7. This Proposed Final Judgment remains subject to final approval by the court. Moreover, despite the fact the DOJ used a different product market than  X-the Bureau did in its analysis, its conclusion about the merger's competitive impact is consistent  X-with ours.3j) X~-ԍ Id.3 x 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  XH-licenses classified as CMRS in which an entity may have an attributable interest in any  X1-geographic area at any point in time._k1 X-ԍ  CMRS Third Report and Order, 9 FCC Rcd at 8100._ 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,  X -even if that entity has more than 10 MHz of SMR spectrum.3l  X,-ԍ  Id.3 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 reiterate our earlier finding that since Nextel and OneComm generally serve different parts of the country, their consolidation  X-will not increase concentration significantly in any location.XmB X-ԍ OneComm Order at 23 and nn. 48, 49.X  Xb-x!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 anticompetitive.  X-x  X-x D. Ex Parte Issues  X-x"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,  X~-unless exempted, ex parte presentations are prohibited. 47 C.F.R.  1.1208. Clarks' Petition  Xi-was opposed formally and therefore, this proceeding is restricted.  X;-x#36. Discussion. In their letter of June 5, 1995, OneComm requested an expedited"; m +o)o)"  X-resolution of the Petition.Fn Xy-ԍ  OneComm June 5 Letter.F 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  X-the other hand, the Clarks' June 7, 1995 Letter was not served on OneComm or its counsel of  X-record.Jo{ X-ԍ  Clarks June 7 Letter at 3.J Clarks claimed that this lack of service was an inadvertent mistake and that it  X-immediately corrected the situation by sending a copy via messenger to OneComm's counsel.Op. Xp -ԍ  See Clarks June 15 Letter at 2.O  Xz-Because no prejudice has occurred as a result of this ex parte violation, we therefore have  Xe-considered the contents of the Clarks June 7, 1995 Letter and have included it in the record.   X9- V.xOrdering Clauses  X" -  X -x$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, 47C.F.R.  0.331, that OneComm's application seeking  X -consent to assign licenses to Nextel is GRANTED .  X-x%38. IT IS FURTHER ORDERED that Clarks' Petition is DENIED.  XS-x&39. IT IS FURTHER ORDERED that Nextel must complete construction of the transferred unconstructed authorizations within OneComm's extended implementation grant.  X-x'40. IT IS FURTHER ORDERED that OneComm and Nextel have onehundred eighty days (180) from the release date of this Order to provide notification that the underlying transaction has been consummated. x` `  FEDERAL COMMUNICATIONS COMMISSION x` `  Regina M. Keeney x` `  Chief, Wireless Telecommunications Bureau "(p +o)o)z"  X-Yd8 Appendix A ă  X- Comments  X-January13,1995  X-Letter to FCC from Wiztronics, Inc. ("Wiztronics Comments")  Xa-March20,1995 OneComm Showing in Response to Commission's Request for Supplemental Information  X3-("OneComm Showing")  X -Clarks Petition for Reconsideration ("Petition")  X -March28,1995  X -Joint Motion for Approval of Briefing Schedule ("Joint Motion")  X-April7,1995  X-Clarks Opposition to OneComm Supplemental Showing ("Clarks Opposition")  XU-April17,1995 OneComm's Opposition to Petition for Reconsideration and Reply to Opposition to OneComm's  X'-Supplemental Showing ("OneComm Opposition")  X-Nextel's Opposition to Petition for Reconsideration of Nextel Communications, Inc ("Nextel  X-Opposition")  X-June5,1995  X-Letter to Chairman Reed E. Hundt from One Comm ("OneComm June 5 Letter")  Xw-June7,1995  X`-Letter to Chairman Reed E. Hundt from Ross & Hardies for Clarks Electronics ("Clarks June 7  XK-Letter")  X-June12,1995  X-Letter to Chairman Reed E. Hundt from Morrison & Foerster for OneComm ("OneComm June  X-12 Letter")  X!-June 13,1995  X"-Letter to William F. Caton from Ross & Hardies for Clarks ("Clarks June 13 Letter") "$p +o)o)(#"  X-_d8 Appendix B dCommission Documents Issued In This Proceeding  X-  X-Public Notice, DA 941087, "Private Radio Bureau Seeks Comments on OneComm Corporation's Request for Commission Consent to Transfer Control to Nextel Communications, Inc." October 3, 1994.  XJ-Public Notice, DA 941256, "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  X -OneComm Corporation, Order, 10 FCC Rcd 3361, DA 95263, rel. February 17, 1995, recon.  X -pending ("OneComm Order")