WPC5 2?BJZECourier3|j#XP\  P6Q+XP#HP LaserJet 4Si LPT2 RM 7326RM 7326HPLA4SAD.PRSx  @\ LbX@ X-#XP\  P6QXP#2,qKXCourierTimes New Roman"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$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd<?xxx,x6X@`7X@7jC:,+Xj\  P6G;XP\ @^.$h'j;U7G;A7 ier<?xxx,x6X@`7X@2O^<nK Z3|jTimes New RomanTimes New Roman BoldTimes New Roman Italic"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/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+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""22 of the Commission's rules concerning the availability of frequencies for assignment, and  xiadopted the proposed frequency assignment plan (as modified to include the two new applicants)  xagreed to by the parties. As a result of the settlement, all pending petitions for reconsideration  xand applications for review were declared "moot." The grant of the settlement agreement did not  XH- xdisturb the grants to Skytel and Page America, which had been affirmed in the New York Order.  The settlement resulted in the assignment of the following frequencies:  X -XxTriState XXhh@hpp931.4875 MHz(#h  X -XxContact XXhh@hpp931.9625 MHz(#h  X -XxEnhanced XXhh@hpp931.6625 MHz(#h  X -XxTeltronix hh@hpp931.4625 MHz(#  X -XxPaging Plus XXhh@hpp931.0875 MHz(#h   ^x5. On July 31, 1992, Paging Partners Corporation (Paging Partners) filed a Petition for  xzReconsideration of the grant of frequency 931.9625 MHz to Contact. Paging Partners had  XM- xprior to the MSD settlement letter filed applications for the 931.9625 MHz frequencies.XM yO- xJԍ Paging Partners filed their applications for the 931.9625 MHz frequencies in New York, New York, Trumbell,  xxConnecticut, Philadelphia, Pennsylvania, and Wilmington, Delaware, in response to the release of Public Notice, PMS9131A announcing the termination of National Beeper, Inc.'s authorizations to use those frequencies.  X6- xHowever, Paging Partners had not been made a party to the settlement group and had not  x.received any grant. In May of 1996, the Commercial Wireless Division (CWD) of the Wireless  X- xBureau attempted to resolve this matter through settlement. yO- xjԍ Before the filing of the Settlement Agreement, on July 26, 1996, the Wireless Bureau granted ETSI the  x>following licenses: KNKP608, Glen Oaks, New York; KNKP609, Tracy Towers, New York; KNLW208,  x.Willimantic, Connecticut; KNLW208, Wolcott, Connecticut; KNLW208, Dagsboro, Delaware; KNLW208,  xWashington, D.C.; KNLW208, Baltimore, Maryland; KNLW206, Amesbury, Massachusetts; KNLW208, New  xBedford, Massachusetts; KNLW208, Paxton, Pennsylvania; KNLW208, Beachwood, New Jersey; KNLW208, Salem,  xNew Jersey; KNLW208, Wildwood, New Jersey; KNLW208, Blooming Grove, New York; KNLW208, Bronx, New  xYork; KNLW208, Central Islip, New York; and KNLW 208, Staten Island, New York. On the same date, the staff  xgranted Paging Partners the following licenses: KNKM828, Philadelphia, Pennsylvania; KNKK653, Wilmington,  xDelaware; KNLW207, Trumbell, Connecticut, KNLW207, Harvard, Massachusetts; KNLW207, Flemington, New Jersey; and KNLW207, New York, New York. On August 19, 1996, a "Settlement  xAgreement" was filed which modified the 1992 settlement and requested that the Commission  x>approve such modification in order to resolve the ongoing proceedings. The parties to the  X- x[modified settlement agreement are: TSR Paging, Inc. (TSR) (successor in interest to TriState);  xPaging Partners; Electronic Tracking Systems, Inc. (ETSI) (successor in interest to Contact);  x2Millie L. Kelley, Administrator of the Estate of Paul Kelley (Teltronix); and Pellish" ,N(N(ZZ"  X- x^Communications, Inc. (Pellish) (formerly Paging Plus, Inc.) (collectively, the Parties).  yOy- xԍ Despite numerous inquiries, Enhanced elected not to participate in the modification. We note, however, that  x<the proposed modification does not affect Enhanced's interests. Likewise, we note that, on our own motion, we  xelected not to include Skytel and Page America in the modified settlement proceeding as their interests are not affected by the proposed modification either.   xAdditionally, on August 19, 1996, the Parties filed multiple assignment applications which are  X-necessary to implement the provisions of the Settlement Agreement. @ yO3- x;ԍ The pending applications are: (i) an assignment of the licenses of stations KNKP608, KNKP609, KNLW206,  x=and KNLW208 in various locations in New York, Massachusetts, Connecticut, Delaware, Washington, D.C.,  xMaryland, and New Jersey from ETSI to TSR and Paging Partners, jointly (File No. 33994CDAL96); (ii)  xX assignment of the second transmitter located at station KNLW207 at Bridgeport, Connecticut, Harvard, Massachusetts,  xFlemington, New Jersey, and New York, New York from Paging Partners to TSR (File No. 34471CDP/AL96);  xi(iii) assignment of a second transmitter located at station KNKM828 at Philadelphia, Pennsylvania from Paging  xPartners to TSR (File No. 34469CDP/AL96); and (iv) assignment of a second transmitter located at station KNKK653 at Wilmington, Delaware from Paging Partners to TSR (File No. 34470CDP/AL96).  X- III.xSETTLEMENT AGREEMENT x   x6. According to the Settlement Agreement, the parties will terminate all litigation in  xjexchange for (i) the assignment of ETSI's licenses and pending applications to Paging Partners  x[and the issuance of new licenses to TSR under different call signs but specifying the same 931  xtransmitter sites authorized in the original ETSI licenses; and (ii) the execution and  ximplementation of a colicensing and time sharing agreement between Paging Partners and TSR  xrequiring that they operate the ETSI licenses on a 5050 time shared basis from two transmitters  xlocated at the same site. The Settlement Agreement specifies that all parties shall bear the  x>expenses incurred in connection with the preparation and implementation of the Settlement  xyAgreement, with the exception of ETSI who, according to the Settlement Agreement, is entitled to reimbursement of expenses.  Xy-  x7.  On October 3, 1996, the Parties filed a supplement to the settlement to demonstrate  xthat the modified settlement complies with the Commission's rules governing settlements under  xSection 22.129 of the Commission's rules. However, the Parties maintain that the Commission  X4- xshould apply former Section 22.29 to this particular agreement, not Section 22.129. 4  yO- x,ԍ Former 47 C.F.R.  22.29(b) states, in pertinent part, that "[p]arties to contested proceedings are encouraged to settle their disputes among themselves." The Parties  X- x<cite Western California Cellular Partners  {O"-ԍ Western California Cellular Partners, 11 FCC Rcd 5705 (1996) (hereinafter "Western"). in support of their argument that former Section 22.29  X- xshould be applied in the present case. In Western, the parties requested that the Commission  x\approve their settlement agreement under former Section 22.29. The Parties argued that the  xCommission must apply the rules in effect when the applications were filed, although they  X- xvoluntarily agreed to comply with the new rules. In Western, unlike the present case, Section  x>22.959 of the rules applied. Section 22.959 provides that an application for an initial cellular" ,N(N(ZZR"  X- xsystem shall be processed under the rules in effect when the application was filed.  yOy- xԍ Section 22.959 states: Pending applications for authority to operate the first cellular system on a channel block  xxin an MSA or RSA market continue to be processed under the rules governing the processing of such applications  xthat were in effect when those applications were filed, unless the Commission determines otherwise in a particular case. 47 C.F.R. 22.959. The  x-Commission also decided that nothing in the history of the proceeding indicated that either party  xzwas involved in a speculative venture and applied former Section 22.29 of the Commission's  xrules. In the present case, the Parties assert that the original contested 931 MHz applications  xwere filed while former Section 22.29 was still in effect and, therefore, former Section 22.29  X- xshould be controlling. We disagree. The applications at issue in Western involved initial cellular  xMapplications. We decline to broaden the scope of the cellular rule to apply across services, including paging channels in the 931 MHz band.   ?x8. Since the filing of the Parties' applications, the Commission has revised Part 22 of the  X - xrules and Section 22.29 has been replaced with the more rigorous requirements of Section  X - x22.129.   {Of- xԍ See Revision of Part 22 of the Commission's Rules Governing the Public Mobile Services, Report and Order, CC Docket No. 92115, 9 FCC Rcd 6513 (1994) (Part 22 Rewrite). Section 22.29 encouraged settlements but did not require certification that the  xZconsideration received did not exceed the legitimate expenses incurred in prosecuting the petition  xas required by Section 22.129. We believe that the rules in effect at the time the modified  X - xSettlement Agreement was filed with the Commission should be controlling.[Z  {O{- xԍ See In re Grady Lynn and Carol Lynn d/b/a/ Lynn Broadcasting, 7 FCC Rcd 2631 (1992) (Determine  xJcompliance with the settlement rules based on the date upon which the parties filed a settlement agreement, not the date upon which they entered into the settlement).[ Therefore, we will  X -apply Section 22.129 to the proposed settlement before us.$ ,  yO- x-ԍ In addition, it is well established that the Commission may apply new rules to pending applications. Until  {ON- xZaction on an application is final, processing is not complete, and rule changes may be applied. See United States  {O- xv. Storer, 351 U.S. 192 1956); Hispanic Information and Telecommunications Network v. FCC, 865 F.2d 1289, 129495 (D.C. Cir. 1989).   x9. Section 22.129 of the Commission's rules provides that any party withdrawing or  xrequesting dismissal of its application, petition to deny or other pleading must (i) request approval  xof the withdrawal or dismissal from the Commission; (ii) submit a copy of any written agreement  xrelated to the withdrawal or dismissal; and (iii) submit an affidavit setting forth certification that  x=the parties have not received any money or other consideration in excess of the legitimate and  xprudent expenses incurred in preparing and prosecuting the application or petition. The parties  xmust also detail the exact nature and amount of any consideration received and submit an  X- xitemized accounting of the expenses for which it seeks reimbursement.mZ {O%- xԍ See 47 C.F.R.  22.129(a) (Party withdrawing or requesting dismissal of a petition to deny, informal  x,objection, or other pleading must (i) submit to the Commission a request for approval of the withdrawal; (ii) a copy  xof any written agreement relating to the withdrawal; and (iii) a certification that the parties did not receive any"5',N(N(V'"  xmoney or consideration in excess of the legitimate and prudent expenses incurred in preparing and prosecuting the petition).m Other consideration has" ,N(N(ZZ"  xbeen defined by the Commission as financial concessions which include the transfer of assets and  X-nonfinancial concessions that confer benefit to the recipient.gZ  {O- xԍ See 47 C.F.R.  22.129(d)(4) ("Other consideration" consists of financial concessions, including, but not  xlimited to, the transfer of assets or the provision of tangible pecuniary benefit, as well as nonfinancial concessions that confer any type of benefit on the recipient).g   x10. The Parties further argue that since ETSI and TSR are not a "party withdrawing or  xrequesting dismissal of its application, petition to deny, informal objection or other pleading" as  xZspecified in Section 22.129. Therefore, they are not required to demonstrate that the consideration  xKreceived does not exceed their legitimate and prudent expenses. According to the Parties, Paging  xPartners is the only party requesting dismissal of a petition. The Parties assert that although  xPaging Partners maintains that it is entitled to access to a 931 MHz frequency, it is settling for  xoperating 50% of the 931.9625 MHz frequency previously licensed to ETSI. Thus, Paging  xPartners, according to the Parties, is simply paying the fair market value for 50% of the value  xlof assets associated with ETSI licenses and applications. This, according to the Parties, demonstrates that Paging Partners is not receiving a "payoff" to drop its petition.   x11. We find that the parties have not fully complied with Section 22.129(a) of the  X - xCommission's rules.E B {O- xԍ See 47 C.F.R.  22.129(a) (Party withdrawing or requesting dismissal of a petition to deny, informal  x,objection, or other pleading must (i) submit to the Commission a request for approval of the withdrawal; (ii) a copy  xof any written agreement relating to the withdrawal; and (iii) a certification that the parties did not receive any  xmoney or consideration in excess of the legitimate and prudent expenses incurred in preparing and prosecuting the petition).E The Parties claim that they will receive money or other consideration in  X- x<excess of the legitimate and prudent expenses incurred in the prosecution of these proceedings.3  {O5-ԍ Id.3  x.However, we note that Section 22.129(a) may be waived if due to the unusual circumstances  xof the case presented application of the rule would be contrary to the public interest. Section  x22.119(a)(2), in pertinent part, states that "the FCC may waive the requirements of rules in this  xpart . . . In view of unique or unusual factual circumstances of the instant case, application of the  X- xrule(s) would be inequitable, unduly burdensome or contrary to the public interest . . ."P  {OT!-ԍ See 47 C.F.R.  22.119(a)(2).P The  xCommission exercised its authority under Section 22.135 to bring the parties together to consider  x-settlement to put an end to the longstanding controversy surrounding 931 MHz licensing in New  x-York. Consequently, the parties contend that this modification of the existing settlement is in the  xpublic interest because it allows the Parties to resolve their differences and avoid extensive, costly  x\and continued litigation. We find that waiver of the settlement rule, 47 C.F.R.  22.129(a), is  xkin the public interest as it would (i) permit the Commission to resolve the longstanding and",N(N(ZZ3"  xlitigious 931 MHz lottery for the New York market and provide a workable compromise among  x.the Parties; (ii) permit the Commission to grant licenses in one of the largest paging markets in  x\the country; and (iii) provide a way to speed service to the public. In promulgating Section  x22.129, we balanced the need to discourage the filing of speculative applications and litigious  xpleadings designed solely to extract money from an applicant against providing some incentive  X- xjfor legitimate petitioners to settle contested proceedings.L {O-ԍ See Part 22 Rewrite at 6550.L Here, there is no evidence that any  xof the parties involved filed any pleadings for speculative reasons or with the intent to extract  xmoney from the other applicants. In sum, strictly applying the settlement rules will not serve the underlying purpose of the rule.  X - IV.xORDERING CLAUSES   x12. ACCORDINGLY, IT IS ORDERED That, pursuant to Section 4(i) of the  x>Communications Act of 1934, as amended, 47 U.S.C.  154(i), and Sections 0.331 and 22.129  x!of the Commission's rules, 47 C.F.R.  0.331 and 22.129, the request for approval of the  xmodified Settlement Agreement filed by TSR Paging, Inc., Paging Partners Corporation,  xElectronic Tracking Systems, Inc., Millie L. Kelley, Administrator of the Estate of Paul Kelley,  xzand Pellish Communications on August 19, 1996 IS GRANTED; the modification of the 1992  xksettlement IS APPROVED; and that all the pleadings filed by the parties with respect to this proceeding ARE DISMISSED.   x13. Further, IT IS ORDERED That, Paging Partners Corporation's application for  x931.9625 MHz at Washington, DC IS DISMISSED; Paging Partners Corporation's application for 931.9625 MHz at Baltimore, Maryland, IS DISMISSED.   x14. Further, IT IS ORDERED That, pursuant to Sections 4(i) and 309(a) of the  xCommunications Act of 1934, as amended, 47 U.S.C.  154(i) and 309(a), and Sections 0.331,  x22.132(b), and 22.137 of the Commission's rules, 47 C.F.R.  0.331, 22.132(b), and 22.137,  xthe assignment of stations KNKP608, KNKP609, KNLW206, and KNLW208 in various locations  xin New York, Massachusetts, Connecticut, Delaware, Washington, D.C., Maryland, and New  xJersey from Electronic Tracking Systems, Inc. to TSR Paging, Inc. and Paging Partners, Corporation, jointly (File No. 33994CDAL96) IS GRANTED;   x15. Further, IT IS ORDERED That, the partial assignment of the second transmitters  x[located at station KNLW207 at Bridgeport, Connecticut, Harvard, Massachusetts, Flemington,  xNew Jersey, and New York, New York from Paging Partners Corporation to TSR Paging, Inc.  x(File No. 34471CDP/AL96) will be processed in accordance with Commission's rules; the  xpartial assignment of the second transmitter located at station KNKM828 at Philadelphia,  xPennsylvania from Paging Partners Corporation to TSR Paging, Inc. (File No. 34469CDP/AL xL96) will be processed in accordance with Commission's rules; and the partial assignment of the  x=second transmitter located at station KNKK653 at Wilmington, Delaware from Paging Partners"h$ Z,N(N(ZZF#"  xCorporation to TSR Paging, Inc. (File No. 34470CDP/AL96) will be processed in accordance with Commission's rules.   xu16. As a result of these grants, the assignment of the 931 MHz frequencies from the New York lottery are modified as follows:  Xv-XxTSR (formerly TriState)` hhX@XhXpp931.4875 MHz(#p  X_-XxTSR and Paging Partners, jointly @XhXpp931.9625 MHz(#p  XH-XxEnhanced XXhhX@XhXpp931.6625 MHz(#p  X1-XxTeltronix hh@hpp931.4625 MHz(#  X -XxPellish (formerly Paging Plus) @XhXpp931.0875 MHzw  yO -ԍ The interests of Skytel and Page America remain unchanged by this settlement.w(#p x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Michele C. Farquhar x` `  hh@Chief, Wireless Telecommunications Bureau u