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Denial of Havens Petitions for Reconsideration of MariTEL Orders

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Released: May 15, 2013

Federal Communications Commission

DA 13-1101

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

MARITEL, INC., MARITEL ALASKA, INC.,
)
MARITEL GREAT LAKES, INC., MARITEL
)
HAWAII, INC., MARITEL MID-ATLANTIC,
)
INC., MARITEL MISSISSIPPI RIVER, INC.,
)
MARITEL NORTHERN ATLANTIC, INC.,
)
MARITEL NORTHERN PACIFIC, INC.,
)
MARITEL SOUTHERN ATLANTIC, INC.,
)
MARITEL SOUTHERN PACIFIC, INC.
)
)

Applications to Transfer Control of MariTEL,
)
File Nos. 0003463998, 0003470447,
Inc. and its Subsidiaries to Shareholders of
)
0003470497, 0003470527, 0003470576,
MariTEL, Inc.
)
0003470583, 0003470593, 0003470602,
)
0003470608, 0003470613
Applications to Modify the Licenses for Stations )
File Nos. 0003652393, 0003652417
WPOJ538 and WPOJ537
)
)

Applications to Renew the Licenses for Stations
)
File Nos. 0003832407, 0003832487,
WPOJ530, WPOJ533, WPOJ534, WPOJ535,
)
0003832501, 0003836437, 0003836439,
WPOJ532, WPOJ536, WPOJ531, WPOJ538,
)
0003840247, 0003841628, 0003841952,
WPOJ537, WPTI475, WPTI476, WPTI477,
)
0003841963, 0004900093, 0004900100-01,
WPTI478, WPTI479, WPTI480, WPTI481
)
0004903174-77
)
Application to Partition and Disaggregate the
)
File No. 0004029237
License for VHF Public Coast Station WPOJ535 )
to Eastern Kentucky Power Cooperative, Inc.
)
)

Applications to Partition and Disaggregate the
)
File Nos. 0003941632-33
Licenses for Stations WPOJ532 and WPOJ536 to )
PacifiCorp
)
)

Application to Partition and Disaggregate the
)
File No. 0003743672
License for VHF Public Coast Station WPOJ536 )
to the County of Riverside, California
)

ORDER ON RECONSIDERATION AND ORDER

Adopted: May 14, 2013

Released: May 15, 2013

By the Deputy Chief, Mobility Division, Wireless Telecommunications Bureau:
1.
Introduction. In a series of decisions adopted between April and September of 2012, the
Wireless Telecommunications Bureau’s Mobility Division (Division) denied petitions filed by Warren C.
Havens, AMTS Consortium LLC (later known as Environmentel LLC), Telesaurus VPC LLC, Telesaurus
Holdings GB LLC, Intelligent Transportation & Monitoring Wireless LLC, Skybridge Spectrum
Foundation, and Verde Systems LLC (Havens Petitioners)1 requesting that the above-captioned


1 Not all of the Havens Petitioners were parties to all of the underlying petitions or are parties to all of the pending
pleadings. The distinctions are not germane for purposes of the analysis herein.

Federal Communications Commission

DA 13-1101

applications filed by MariTEL, Inc., and its nine subsidiaries (collectively, MariTEL) to transfer, modify,
renew, or assign VHF Public Coast (VPC) station licenses be dismissed, denied, or held in abeyance, or
(in one case) that grant of the applications be reconsidered.2 The Havens Petitioners filed petitions for
reconsideration3 and (in one case) an application for review4 of the Division’s decisions. For the reasons
set forth below, we deny the petitions for reconsideration and dismiss the application for review.
2.
Background. The Havens Petitioners’ pleadings with respect to the above-captioned
applications were based primarily on allegations concerning Donald DePriest (DePriest) and Maritime
Communications/Land Mobile LLC (MC/LM). The Havens Petitioners alleged that DePriest and
MC/LM made misrepresentations, lacked candor, and committed other misconduct in connection with
MC/LM’s filing and prosecution of its application for Automated Maritime Telecommunications System
licenses for which MC/LM was the winning bidder in the Commission’s Auction No. 61. After
investigating these matters, the Commission designated a hearing to consider the basic character
qualifications of DePriest and MC/LM.5 The Havens Petitioners asserted that MariTEL’s basic character
qualifications also were at issue because DePriest controlled MariTEL at the time of the alleged MC/LM-
related misconduct. DePriest denied that he controlled MariTEL during the relevant period.6 In June
2008, however, MariTEL filed transfer of control applications to divest DePriest of control, and stated
that no single entity would control MariTEL after the transaction. The applications were granted under
the Commission’s Immediate Approval Procedures (IAP).7
3.
The Havens Petitioners filed a “Petition to Deny and Petition for Reconsideration” of the
grant of the applications, noting the conflicting representations regarding DePriest’s control of MariTEL,
and arguing that DePriest controlled MariTEL and lacked the character qualifications to be a Commission
licensee. They also argued that the filing of the applications and later consummation of the transaction
were not “authorized acts” of MariTEL. The Havens Petitioners later filed petitions arguing that
applications filed by MariTEL between November 2008 and November 2009 to modify, renew, and
partition and disaggregate its VPC licenses also should be dismissed, denied, or held in abeyance in light
of questions about DePriest’s character qualifications. They contended primarily that MariTEL’s licenses
may be subject to revocation based on DePriest’s misconduct, so none of MariTEL’s applications should
be granted, if at all, until the issues regarding DePriest’s qualifications are resolved at hearing.
4.
In the April 3 Order, the Division denied the Havens Petitioners’ pleadings with respect
to MariTEL’s transfer of control, modification, and renewal applications. It explained that, under the
Commission’s Character Qualifications Policy, the Commission will withhold action only on applications


2 MariTEL, Inc., Order, 27 FCC Rcd 3256 (WTB MD 2012) (April 3 Order); MariTEL Mississippi River, Inc.,
Order, 27 FCC Rcd 7676 (WTB MD 2012) (July 11 Order); MariTEL Northern Pacific, Inc., Order, 27 FCC Rcd
8153 (WTB MD 2012) (July 19 Order); MariTEL Southern Pacific, Inc., Order, 27 FCC Rcd 10978 (WTB MD
2012) (September 10 Order).
3 See Petition for Reconsideration (filed May 4, 2012) (April 3 Order PFR); Petition for Reconsideration (filed Aug.
13, 2012) (July 11 Order PFR); Petition for Reconsideration (filed Aug. 20, 2012) (July 19 Order PFR); Petition for
Reconsideration (filed Oct. 11, 2012) (September 10 Order PFR). MariTEL filed oppositions to the April 3, July 19,
and September 10 Order PFRs. PacifiCorp also filed an opposition to the July 19 Order PFR. The Havens
Petitioners filed replies to the oppositions.
4 See Application for Review (filed May 4, 2012) (AFR). MariTEL’s opposition to the April 3 Order PFR also
addresses the AFR. The Havens Petitioners filed a separate reply with respect to the AFR.
5 See Maritime Communications/Land Mobile, LLC, Order to Show Cause, Hearing Designation Order, and Notice
of Opportunity for Hearing
, EB Docket No. 11-71, 26 FCC Rcd 6520 (2011) (OSC/HDO).
6 See id. at 6527 ¶ 19 & n.35.
7 See 47 C.F.R. § 1.948(j)(2).
2

Federal Communications Commission

DA 13-1101

encompassed in a hearing designation order, rather than all of the designated licensee’s applications.8
The Division acknowledged the possibility that misconduct by DePriest could ultimately be imputed to
MariTEL and appropriate measures could ensue upon a determination of actionable misconduct.9 It
noted, however, that the OSC/HDO did not designate issues against MariTEL despite MariTEL’s
representation that it had been controlled by DePriest, and that there was no evidence in the record of
wrongdoing by MariTEL itself.10 The Division therefore concluded that, consistent with the Character
Qualifications Policy, it would not withhold processing of the MariTEL applications due to the pendency
of the hearing involving DePriest and MC/LM.11
5.
The Division also found no merit in the Havens Petitioners’ arguments relating to control
of MariTEL. Among other things, it rejected their contention that the applications were not authorized by
MariTEL, stating that the “dispute regarding DePriest’s role at MariTEL does not establish or even imply
that no person had authority to act on the company’s behalf,” and finding no evidence that the
applications were not authorized by its Board of Directors or signed by persons vested with authority to
act on MariTEL’s behalf.12 The Division also held that the “Petition to Deny and Petition for
Reconsideration” opposing the transfer of control applications must be treated only as a petition for
reconsideration inasmuch as it was filed after the applications were granted.13
6.
In subsequent orders, the Division denied the Havens Petitioners’ petitions to deny,
dismiss, or hold in abeyance MariTEL’s applications to partition and disaggregate VPC spectrum, noting
that the arguments opposing those applications had been found in the April 3 Order to be without merit.14
7.
The Havens Petitioners filed a petition for reconsideration of each Division decision, and
also an application for review of the April 3 Order with respect to the transfer of control applications.
8.
Discussion. The Havens Petitioners contend that the April 3 Order incorrectly “suggests
that DePriest’s chara[c]ter is not relevant to the Applications since the FCC has not designated the
applications or Maritel or its licenses for a hearing.”15 They assert that the OSC/HDO and the underlying
investigation demonstrate that MariTEL’s character qualifications should be investigated prior to action
on any MariTEL application,16 and argue that the applications to partition and disaggregate spectrum
should not have been granted because DePriest stood to benefit from the transactions.17
9.
We disagree. The April 3 Order only observed that the Commission’s longstanding
policy is that if the basic qualifications of the licensee (and particular applications or licenses) have been
designated for hearing, proceedings involving the licensee’s other licenses will not be encumbered with


8 See April 3 Order, 27 FCC Rcd at 3259-61 ¶¶ 7-12 (citing Policy Regarding Character Qualifications in Broadcast
Licensing, Report, Order and Policy Statement, 102 FCC 2d 1179, 1223-25 ¶¶ 92-95, recon. denied, 1 FCC Rcd 421
(1986)).
9 Id. at 3260 ¶ 9 & n.34.
10 Id. at 3260 ¶ 9, 3261 ¶ 12.
11 Id. at 3261 ¶ 12.
12 Id. at 3262 ¶ 14.
13 Id. at 3257 n.11.
14 See July 11 Order, 27 FCC Rcd at 7676 ¶ 1; July 19 Order, 27 FCC Rcd at 8155 ¶ 6; September 10 Order, 27
FCC Rcd at 10980 ¶ 6.
15 See April 3 Order PFR at 8.
16 Id. at 5-6.
17 See July 20 Order PFR at 2-4; September 10 Order PFR at 2-4.
3

Federal Communications Commission

DA 13-1101

consideration of the pending character allegations made in the principal proceeding.18 Even now, the
Havens Petitioners offer no analysis, and cite to no precedent, that calls into question the Division’s
application of the Character Qualifications Policy19 and its decisions not to “deny, dismiss or defer acting
on applications that have not been designated for hearing, involving licenses that have not been
designated for hearing, filed by applicants that have not been designated for hearing.”20 We therefore find
this argument to be without merit.
10.
The Havens Petitioners reiterate their argument that the transfer of control applications
were not properly certified by MariTEL because no one at MariTEL was authorized to file them,21 and
they contend that the Division exceeded the Commission’s authority by addressing “matters of State law
jurisdiction” in deciding the disputed issue of who controlled MariTEL.22 This is incorrect. The April 3
Order
simply rejected the argument that MariTEL’s applications must be deemed unauthorized, and
hence defective under the Commission’s Rules, due to the dispute as to who controlled MariTEL when
MC/LM filed its Auction No. 61 application.23
11.
The Havens Petitioners also argue that their pleading opposing the transfer of control
applications should have been treated as a petition to deny rather than a petition for reconsideration
because the applications were not eligible for IAP processing due to the questions regarding control of the
company.24 As discussed above, the questions regarding control of MariTEL did not render the transfer
of control applications defective. The applications were properly granted under the IAP process, because
they were “sufficiently complete” and otherwise met the requirements for IAP processing in Section
1.948(j)(2) of the Rules.25 Moreover, even if IAP processing had been inappropriate, the filing of a
petition for reconsideration does not by itself reverse the challenged action and return it to pending status
for further processing. The Havens Petitioners’ pleading against the transfer of control applications was
therefore properly treated as a petition for reconsideration.26


18 See April 3 Order, 27 FCC Rcd at 3260-61 ¶¶ 10-11.
19 The Havens Petitioners say that the April 3 Order construed the Character Qualifications Policy in a manner “at
odds with controlling court precedent,” but do not cite any court decisions to support this conclusory statement. See
April 3 Order
PFR at 8. (In the July 20 Order PFR, they cite a decision regarding piercing the corporate veil under
Delaware law, but it has no relevance to the present matter. See July 20 Order PFR at 2 (citing BH S & B Holdings
LLC vs. Bay Harbour Master Ltd., 420 B.R. 112 (Bankr. S.D.N.Y. 2009)).)
20 April 3 Order, 27 FCC Rcd at 3261 ¶ 12.
21 See April 3 Order PFR at 2-4.
22 Id. at 3.
23 See April 3 Order, 27 FCC Rcd at 3262 ¶ 14. Contrary to the Havens Petitioners’ contention that the Division
denied their petition “based in part on facts that it won’t even release to Petitioners,” see April 3 Order PFR at 7, the
Division relied solely on matters of record, and the bases for its conclusions were fully explained. Moreover, the
Division made no factual finding as to who controlled MariTEL at any particular time. See April 3 Order, 27 FCC
Rcd at 3259-61 ¶¶ 8-12.
24 See April 3 Order PFR at 2, 4-5.
25 See 47 C.F.R. § 1.948(j)(2).
26 See Progeny LMS LCC, Order, 27 FCC Rcd 5871, 5877 ¶ 16 (WTB MD 2012) (“In the Secondary Markets
Report and Order
, the Commission applied the IAP Rules to all wireless services and clearly stated that, if an
application is acted on pursuant to IAP, the correct vehicle for challenging such an action is a petition for
reconsideration. Since the Application was granted pursuant to the Commission’s IAP rules, the Petition must be
considered a petition for reconsideration.”) (citing Promoting Efficient Use of Spectrum Through Elimination of
Barriers to the Development of Secondary Markets, Second Report and Order, Order on Reconsideration, and
Second Further Notice of Proposed Rulemaking
, WT Docket No. 00-230, 19 FCC Rcd 17503, 17557-17558 ¶ 110
(2004)) (footnotes omitted), review pending.
4

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12.
Finally, we dismiss the application for review of the April 3 Order. Section 1.104(b) of
the Rules provides that a party may file either a petition for reconsideration or an application for
Commission review of an action taken on delegated authority, but not both.27 The dismissal is without
prejudice to the filing of an application for review of this Order on Reconsideration and Order.28
13.
Conclusion and Ordering Clauses. For reasons discussed above, we deny the Havens
Petitioners’ petitions for reconsideration and dismiss without prejudice their application for review of the
Division’s decisions denying their petitions filed against the above-captioned applications. As explained
above and in the previous decisions, the Commission will withhold action only on applications
encompassed in a hearing designation order, rather than all of the designated licensee’s applications. The
Havens Petitioners have provided no reason to depart from this policy.
14.
Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 5(c) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 155(c), and Sections 1.104 and 1.115 of
the Commission’s Rules, 47 C.F.R. §§ 1.104, 1.115, the Application for Review filed by Warren C.
Havens, Telesaurus Holdings GB LLC, Skybridge Spectrum Foundation, Verde Systems LLC,
Environmentel LLC, Environmentel-2 LLC, Intelligent Transportation & Monitoring Wireless LLC, and
V2G LLC on May 4, 2012, IS DISMISSED without prejudice.
15.
IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of the
Commission’s Rules, 47 C.F.R. § 1.106, the Petition for Reconsideration filed by Warren C. Havens,
Telesaurus Holdings GB LLC, Skybridge Spectrum Foundation, Verde Systems LLC, Environmentel
LLC, Environmentel-2 LLC, Intelligent Transportation & Monitoring Wireless LLC, and V2G LLC on
May 4, 2012 IS DENIED.
16.
IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of the
Commission’s Rules, 47 C.F.R. § 1.106, the Petition for Reconsideration filed by Environmentel LLC,
Verde Systems LLC, Telesaurus Holdings GB LLC, Intelligent Transportation & Monitoring Wireless
LLC, and Skybridge Spectrum Foundation on August 13, 2012 IS DENIED.
17.
IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of the
Commission’s Rules, 47 C.F.R. § 1.106, the Petition for Reconsideration filed by Environmentel LLC,
Verde Systems LLC, Telesaurus Holdings GB LLC, Intelligent Transportation & Monitoring Wireless
LLC, and Skybridge Spectrum Foundation on August 20, 2012 IS DENIED.
18.
IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106 of the
Commission’s Rules, 47 C.F.R. § 1.106, the Petition for Reconsideration filed by Environmentel LLC,
Verde Systems LLC, Telesaurus Holdings GB LLC, Intelligent Transportation & Monitoring Wireless
LLC, and Skybridge Spectrum Foundation on October 11, 2012 IS DENIED.
19.
These actions are taken under delegated authority pursuant to Sections 0.131 and 0.331 of


27 See 47 C.F.R. § 1.104(b). It appears that the Havens Petitioners filed the AFR, which simply incorporates by
reference the arguments in the April 3 Order PFR, in order to preserve their right to further contest the grant of the
transfer of control applications lest a petition for reconsideration with respect to those applications be subject to
dismissal as repetitious pursuant to Section 1.106(k)(3) of the Rules, 47 C.F.R. § 1.106(k)(3) (“A petition for
reconsideration of an order which has been previously been denied on reconsideration maybe dismissed by the staff
as repetitious.”). See AFR at 1-2; April 3 Order PFR at 2.
28 See Touch Tel Corporation, Order on Reconsideration, 26 FCC Rcd 16482, 16484 ¶ 7 (WTB BD 2011).
5

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the Commission’s Rules, 47 C.F.R. §§ 0.131, 0.331.
FEDERAL COMMUNICATIONS COMMISSION
Scot Stone
Deputy Chief, Mobility Division
Wireless Telecommunications Bureau
6

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