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Environmental, LLC. v. FCC, No. 10-1344 (D.C. Cir.)

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Released: June 1, 2011
ORAL ARGUMENT NOT YET SCHEDULED
BRIEF FOR APPELLEE
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 10-1344

ENVIRONMENTEL, LLC,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION
APPELLEE.

ON APPEAL OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION


AUSTIN C. SCHLICK
GENERAL COUNSEL

PETER KARANJIA
DEPUTY GENERAL COUNSEL

RICHARD K. WELCH
ACTING ASSOCIATE GENERAL COUNSEL

MAUREEN K. FLOOD
COUNSEL

FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



1. Parties.

All parties, intervenors, and amici in this case are listed in the Brief for the
Appellant.

2. Rulings under review.

Thomas K. Kurian, Assignor; AMTS Consortium LLC, Assignee; Application
for Consent to Partial Assignment of the License for Station WQCP809
, 25
FCC Rcd 13863 (2010).

3. Related cases.

The Order on review has not previously been before this Court or any other
court, and counsel is not aware of any related case before this or any other
court.




TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................. i
TABLE OF AUTHORITIES .......................................................................... iii
GLOSSARY................................................................................................... vii
JURISDICTION................................................................................................1
QUESTION PRESENTED ...............................................................................1
STATUTES AND REGULATIONS ................................................................3
COUNTERSTATEMENT ................................................................................3
I. STATUTORY AND REGULATORY BACKGROUND.........................3
II. FACTUAL BACKGROUND....................................................................7
A. The Wireless Bureau's Consent To Kurian's Partial Assignment
Application And Its Subsequent Grant Of Kurian's Request To
Withdraw His Application. ...................................................................7
B. The Mobility Division's Denial Of Environmentel's Petitions
For Reconsideration ..............................................................................9
C. The Commission's Order Denying Review Of The Staff's
Actions.................................................................................................12
SUMMARY OF ARGUMENT ......................................................................14
ARGUMENT ..................................................................................................16
I. THE STANDARD OF REVIEW IS HIGHLY DEFERENTIAL. ..........16
II. THE COMMISSION ACTED WITHIN ITS DISCRETION IN
AFFIRMING THE MOBILITY DIVISION'S DECISION TO
PROCESS KURIAN'S WITHDRAWAL REQUEST AND
DISMISS ENVIRONMENTEL'S SUBSEQUENT
NOTIFICATION OF CONSUMMATION. ............................................17
i

A. The Commission Had Authority To Process Kurian's
Withdrawal Request And Dismiss Environmentel's
Consummation Notification. ...............................................................19
B. The Commission Acted Reasonably And Consistent With
Precedent When It Declined To Consider Environmentel's
Breach Of Contract Claims. ................................................................25
C. Environmentel Is Not Eligible For An "Exception" To The
General Rule That The Commission Does Not Intervene In
Private Contractual Disputes...............................................................31
III. ENVIRONMENTEL HAS WAIVED ITS REMAINING CLAIMS
WHICH, EVEN IF PROPERLY PRESENTED, WOULD
PROVIDE NO BASIS TO REVERSE THE COMMISSION'S
ORDER.....................................................................................................35
A. Environmentel's Claim That Kurian Violated The
Commission's Ex Parte Rules Is Barred By 47 U.S.C. 405(a)
And Is Incorrect...................................................................................35
B. Environmentel's Claim That Kurian's Withdrawal Request Was
Not Effective On The Date It Was Filed Is Barred By 47 U.S.C.
405(a) And Fails On The Merits. .....................................................38
CONCLUSION ...............................................................................................42
ii

1

TABLE OF AUTHORITIES

CASES


Arecibo Radio Corp., 101 F.C.C.2d 545 (1985) .............................................16
AT&T Corp. v. FCC, 220 F.3d 607 (D.C. Cir. 2000) .....................................16
Bartholdi Cable Co. Inc. v. FCC, 114 F.3d 274
(D.C. Cir. 1997)...........................................................................................36
BDPCS, Inc. v. FCC, 351 F.3d 1177 (D.C. Cir.
2003)............................................................................................................19
Casey v. Jones, 339 A.2d 33 (Md. 1975) ........................................................28
Celcom Commc'ns Corp. v. FCC, 789 F.2d 67
(D.C. Cir. 1986)...........................................................................................39
Coalition for Noncommercial Media v. FCC, 249
F.3d 1005 (D.C. Cir. 2001) .........................................................................36
*
Comcast Corp. v. FCC, 526 F.3d 763 (D.C. Cir.
2008)............................................................................................................32
Damsky v. FCC, 199 F.3d 527 (D.C. Cir. 2000)...................................... 17, 19
FCC v. Pottsville Broad. Co., 309 U.S. 134 (1940)........................................16
Havens v. FCC, Judgment, No. 02-1358 (D.C. Cir.
May 24, 2011) .............................................................................................37
Listeners' Guild v. FCC, 813 F.2d 465 (D.C. Cir.
1987)............................................................................................................26
Lyle v. Andrews, 227 S.E.2d 686 (Va. 1976) ..................................................28
Montierth v. FCC, 159 F.3d 636 (D.C. Cir 1998)...........................................26
*
Qwest Corp. v. FCC, 482 F.3d 471 (D.C. Cir. 2007) ........................ 16, 37, 39
Regents of Univ. Sys. of Georgia v. Carroll, 338
U.S. 586 (1950) ...........................................................................................27
*
Star Wireless LLC v. FCC, 522 F.3d 469 (D.C. Cir.
2008)..................................................................................................... 17, 19
WATCH v. FCC, 665 F.2d 1264 (D.C. Cir. 1981) ..........................................23

1 Cases and other authorities principally relied upon are marked with
asterisks.
iii

ADMINISTRATIVE DECISIONS


Amendment of Section 1.948(d) of the
Commission's Rules to Extend the Time for
Consummation and Notification of Wireless
Transfers and Assignments,
1999 WL 988172
(1999) ..........................................................................................................23
Amendment of the Commission's Rules Concerning
Maritime Communications, Second
Memorandum Opinion and Order and Fifth
Report and Order, 17 FCC Rcd 6685 (2002) ................................................7
AMTS Consortium, LLC Application to Partially
Assign License for Station WQCP810 to
Northeast Utils. Serv. Co.,
25 FCC Rcd 526
(2010) ..................................................................................................... 4, 22
Ass'n. for Cmty. Educ., Inc., 19 FCC Rcd 12682
(2004) ..........................................................................................................38
Beyond the Bay Media Group, 21 FCC Rcd 6967
(MB 2006) ...................................................................................................38
Dale J. Parsons, Jr., 10 FCC Rcd 2718 (1995) ....................................... 24, 30
Improvement Leasing Co., 73 F.C.C.2d 676 (1979),
aff'd sub nom. WATCH v. FCC, 665 F.2d 1264
(D.C. Cir. 1981).................................................................................... 22, 23
Inforum Commc'ns, Inc., 20 FCC Rcd 820 (2005).................................. 28, 29
Merkely, 94 F.C.C.2d 829 (1983), recon. denied, 56
RR 2d 413 (1984), aff'd per curiam, 776 F.2d
365 (D.C. Cir. 1985)....................................................................................26
Nevada Cogeneration Association Station
WPMR751, Las Vegas, Nevada, 24 FCC Rcd
5501 (WTB 2009) .......................................................................................32
Northwest Broad., Inc., 12 FCC Rcd 3289 (1997),
aff'd sub nom. Montierth v. FCC, 159 F.3d 636
(D.C. Cir 1998)..................................................................................... 26, 30
Pacific Wireless Technologies, Inc. 800 Mhz Station
KGQ445, 18 FCC Rcd 7833 (WTB 2003)........................................... 32, 33
iv

Palmetto Cmmc'ns Co. WDIX, Yadkinville, North
Carolina, 6 FCC Rcd 2193 (Rev.Bd 1991).................................................33
Pappammal Kurian, 24 FCC Rcd 4842 (WTB MD
2009)............................................................................................................34
Saga Cmmc'ns of New England, LLC, 21 FCC Rcd
2466 (GC 2006)...........................................................................................38
Thomas K. Kurian, Assignor; AMTS Consortium
LLC, Assignee; Application for Consent to
Partial Assignment of the License for Station
WQCP809,
25 FCC Rcd 13863 (2010).........................................................1
* Tsooris
Corp.,
12 FCC Rcd 1675 (1997)................................. 4, 24, 28, 29, 30
Warren C. Havens Request to Extend Constr.
Deadline for Certain VHF Public Coast Station
Geographic Area Licenses,
19 FCC Rcd 7054
(WTB 2004)............................................................................................ 5, 20

STATUTES AND REGULATIONS


5 U.S.C. 706(2)(A).......................................................................................16
47 U.S.C. 155(c).............................................................................................8
47 U.S.C. 301 .................................................................................................3
47 U.S.C. 310(d)...................................................................................... 3, 19
47 U.S.C. 402(b)(6)........................................................................................1
*
47 U.S.C. 405(a).............................................................................. 15, 36, 39
47 C.F.R 1.1200 ...........................................................................................36
47 C.F.R. 1.948(a).........................................................................................3
47 C.F.R. 0.131(a)..........................................................................................8
47 C.F.R. 0.331 ..............................................................................................8
47 C.F.R. 1.102(b)(1) ............................................................................ 40, 41
47 C.F.R. 1.103(a)........................................................................................40
47 C.F.R. 1.1204(a)(1) .................................................................................37
47 C.F.R. 1.1216 ..........................................................................................36
47 C.F.R. 1.933(a)(2) ...................................................................................38
v

47 C.F.R. 1.934(a)(1) ........................................................................ 4, 18, 20
47 C.F.R. 1.934(a)(1)(i) ...............................................................................20
47 C.F.R. 1.934(a)(1)(ii) ................................................................................8
47 C.F.R. 1.934(a)(1)(i-ii)....................................................................... 5, 18
47 C.F.R. 1.948(c)................................................................................... 3, 17
47 C.F.R. 1.948(d)......................................................................... 5, 6, 22, 23
47 C.F.R. 1.948(j)(1)(vi) ................................................................................4
47 C.F.R. 1.948(j)(1)(vii) ...............................................................................4

OTHERS


Federal Communications Commission Announces
Waiver Relief for Untimely Notifications of
Consummation of Wireless License Assignment
and Transfer of Control Applications,
Public
Notice, 19 FCC Rcd 24549 (2004)......................................................... 6, 23
Wireless Telecommunications Bureau Announces
Changes to the Universal Licensing System to
Implement the Commission's Immediate
Approval Procedures for Wireless License
Assignments and Transfers,
Public Notice, 20
FCC Rcd 13042 (WTB 2005) ................................................................ 3, 37
Wireless Telecommunications Bureau Announces
the Grant of 10 Automated Maritime
Telecommunications System Licenses,
Public
Notice, 20 FCC Rcd 8244 (WTB 2004)........................................................7


vi

GLOSSARY

ACL
AMTS Consortium LLC (a.k.a.
Environmentel)

AMTS
Automated Maritime Telecommunications
System

Commission or FCC

Federal Communications Commission

Division or MD

Mobility Division

ULS Universal
Licensing
System

Wireless Bureau or WTB
Wireless Telecommunications Bureau





vii

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 10-1344

ENVIRONMENTEL, LLC,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION
APPELLEE.

ON APPEAL OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

BRIEF FOR APPELLEE

JURISDICTION

The Federal Communications Commission ("FCC" or "Commission")
released the Order on appeal on September 22, 2010. Thomas K. Kurian,
Assignor; AMTS Consortium LLC, Assignee; Application for Consent to
Partial Assignment of the License for Station WQCP809, 25 FCC Rcd 13863
(2010) ("Order"). This Court's jurisdiction rests on 47 U.S.C. 402(b)(6).

QUESTION PRESENTED

Thomas K. Kurian contracted with appellant Environmentel, LLC, to
partially assign a radio spectrum license to Environmentel. As the licensee of
record, Kurian applied for and the FCC's staff approved the assignment,

but Kurian subsequently notified the FCC that he was withdrawing his
assignment application. Having received no notification from Environmentel
(the proposed assignee) that the assignment had been consummated, FCC
staff processed Kurian's withdrawal request as a routine matter and granted
the withdrawal. Environmentel filed a notification later that same day
claiming that the assignment had been consummated earlier, but the staff
subsequently dismissed that notification, finding that there was no assignment
to consummate because the application already had been withdrawn. On
review, the Commission affirmed both staff actions and determined that the
staff properly followed FCC precedent by declining to interject itself into the
private contractual dispute between Kurian and Environmentel over whether
the proposed assignment had been consummated.
Environmentel now challenges the FCC's Order.
The question presented is:
Whether the Commission acted within its discretion in denying review
of the staff's decisions to (1) process Kurian's request to withdraw the
assignment application and (2) dismiss Environmentel's subsequent
notification of consummation.
2

STATUTES AND REGULATIONS

Pertinent statutory provisions and regulations are set forth in the
addendum in this brief.

COUNTERSTATEMENT

I.

STATUTORY AND REGULATORY BACKGROUND

The Communications Act of 1934, as amended, establishes a system
for licensing the use of radio spectrum and vests in the Commission the
exclusive authority to grant radio licenses. 47 U.S.C. 301. Under Section
310(d) of the Communications Act, any assignment of a radio license
requires the Commission's consent. 47 U.S.C. 310(d); see also 47 C.F.R.
1.948(a) ("authorizations in the Wireless Radio Services may be assigned
by the licensee to another party ... only upon application to and approval by
the Commission.").
To initiate an assignment, the assignor (i.e., the licensee of record)
must file an application for Commission approval using FCC Form 603. 47
C.F.R. 1.948(c); see also Wireless Telecommunications Bureau Announces
Changes to the Universal Licensing System to Implement the Commission's
Immediate Approval Procedures for Wireless License Assignments and
Transfers, Public Notice, 20 FCC Rcd 13042, **4 (WTB 2005) ("2005
Public Notice"). The assignor typically submits Form 603 through the FCC's
Universal Licensing System ("ULS"), an Internet-based filing system that
3

allows parties to submit licensing applications for processing by the
Commission.
The Commission (including the FCC's Wireless Telecommunications
Bureau, acting on delegated authority) approves a proposed assignment by
"affirmatively consent[ing] to the application." 47 C.F.R. 1.948(j)(1)(vi);
see also n.5, infra. "Grant of an assignment application represents the
Commission's finding that the proposed transaction satisfies [the FCC's]
rules and policies and is in the public interest." Tsooris Corp., 12 FCC Rcd
1675, 1678 (1997). FCC consent to the assignment is reflected in a public
notice issued promptly after the grant. 47 C.F.R. 1.948(j)(1)(vii).
Such consent is permissive only, in that it "permits the parties to
consummate a sale" but "does not compel them to do so." Tsooris Corp., 12
FCC Rcd at 1678; see also AMTS Consortium, LLC Application to Partially
Assign License for Station WQCP810 to Northeast Utils. Serv. Co., 25 FCC
Rcd 526, 531 ( 18) (2010) ("ACL-NUSCO Assignment Order").
Under the FCC's rules, the assignor and only the assignor may seek
Commission approval to withdraw an assignment application. See 47 C.F.R.
1.934(a)(1) ("Any applicant may request that its application be withdrawn
or dismissed."). An assignment application may be withdrawn even after the
agency has consented to the assignment. The assignor remains the licensee of
4

record until the Commission accepts notification that the assignment has been
consummated. Thomas K. Kurian, Assignor; AMTS Consortium LLC,
Assignee; Application for Consent to Partial Assignment of the License for
Station WQCP809, 24 FCC Rcd 4849, 4851 ( 6, n.18) (2009) ("Division
Order") (JA ); see also Warren C. Havens Request to Extend Constr.
Deadline for Certain VHF Public Coast Station Geographic Area Licenses,
19 FCC Rcd 7054 ( 1, n.2) (WTB 2004) ("Havens Order") (explaining that
Havens, the assignor, remained the licensee of record until the FCC received
1
notice that pending assignments had been consummated). Thus, the assignor
may withdraw the assignment application at any time until the proposed
assignee files a notification of consummation with the Commission. Division
Order, 24 FCC Rcd at 4851 ( 6, n.18) (JA ); 47 C.F.R. 1.948(d).
If the assignor requests permission to withdraw the assignment
application, the Commission "will dismiss the application." 47 C.F.R.
2
1.934(a)(1)(i-ii). But if the assignor and the assignee decide to proceed
with the transaction, they must consummate the assignment and the assignee

1 Whether and, if so, when an assignment has been "consummated" is a
question informed by contract law principles governing when an assignment
of a property interest is deemed complete. See pp. 25-31, infra.
2 The request to withdraw the assignment application (like the assignment
application itself) would have to be consistent with the Communications Act
and the FCC's rules and policies. See 47 U.S.C. 310(d).
5

must provide notification of the consummation to the FCC within 180 days of
public notice of agency approval, unless a request for an extension of time to
consummate is filed before the 180-day period expires. 47 C.F.R. 1.948(d).
In addition to complying with the 180-day deadline for consummation and
notice to the Commission, the assignee must notify the FCC of the
consummation no later than 30 days after the consummation occurs. Id. The
notice of consummation, which the assignee files by again using FCC Form
603, accordingly must include the date on which the transaction was
consummated. Id. If the assignor and assignee fail to comply with the 180-
day deadline for consummation and notification, or fail to request an
extension of time to do so, the FCC will rescind approval of the assignment
and send a dismissal letter to the parties. Federal Communications
Commission Announces Waiver Relief for Untimely Notifications of
Consummation of Wireless License Assignment and Transfer of Control
Applications, Public Notice, 19 FCC Rcd 24549, 24550 (2004) ("2004 Public
Notice").
6

II.

FACTUAL BACKGROUND

A. The Wireless Bureau's Consent To Kurian's Partial

Assignment Application And Its Subsequent Grant Of
Kurian's Request To Withdraw His Application.

In a spectrum auction that the FCC concluded in September 2004,
3
Thomas K. Kurian submitted the winning bid for an AMTS license that
authorized Kurian to provide AMTS service along waterways in a number of
western states (the "AMTS License"). See Wireless Telecommunications
Bureau Announces the Grant of 10 Automated Maritime Telecommunications
System Licenses, Public Notice, 20 FCC Rcd 8244 (WTB 2004); see also
Division Order, 24 FCC Rcd 4849 ( 2) (JA ).
In June 2005, Kurian filed an application requesting FCC consent to
assign a portion of the spectrum governed by the AMTS License to AMTS
4
Consortium, LLC. Division Order, 24 FCC Rcd at 4849 ( 2) (JA ). The
FCC's Wireless Telecommunications Bureau consented to the application on

3 Automated Maritime Telecommunications System ("AMTS") service is
principally a type of wireless radio service that uses antennas at coast stations
to provide maritime voice and data communications, akin to a cellular phone
systems, for tugs, barges, and other vessels on waterways. Amendment of the
Commission's Rules Concerning Maritime Communications,
Second
Memorandum Opinion and Order and Fifth Report and Order, 17 FCC Rcd
6685, 6695 ( 22) (2002).
4 At that time, Environmentel operated under the name AMTS Consortium
LLC ("ACL"). For convenience, we refer to ACL as Environmentel.
7

5
April 7, 2006. Id. Following administrative litigation before the FCC
between Kurian and his ex-wife (who opposed the partial assignment), the
Wireless Bureau's Mobility Division granted requests for an extension of
time until November 10, 2007 to consummate the assignment. Id. 2 & n.7.
6
(JA ).
On October 12, 2007, almost a month before the consummation
deadline, Kurian completed and filed a Form 603 request seekingCommission
approval to withdraw his assignment application. Division Order, 24 FCC
Rcd 4850 ( 3) (JA ). The Mobility Division duly processed Kurian's
withdrawal request six days later on October 18, 2007, id., consistent with the
Commission's rules. See 47 C.F.R. 1.934(a)(1)(ii). The assignment
application was thereafter listed in ULS as "Withdrawn." Division Order, 24
FCC Rcd at 4850 ( 3) (JA ).

5 The Wireless Telecommunications Bureau ("Wireless Bureau") may
consent to an assignment application under authority delegated to it by the
Commission. See 47 C.F.R. 0.131(a) (functions of Wireless Bureau),
0.331 (delegation of authority to Wireless Bureau); see also 47 U.S.C.
155(c) (generally authorizing delegation of authority to FCC staff).
6 Kurian's ex-wife filed an informal opposition to the partial assignment to
Environmentel. Division Order, 24 FCC Rcd at 4849 n.5 (JA ). Although
Mrs. Kurian's pleadings in opposition were eventually denied or dismissed,
the uncertainty caused by the litigation delayed consummation of the
assignment. Id.
8

7
Later that same day, Environmentel filed a notification of
8
consummation. Division Order, 24 FCC Rcd at 4850 ( 3) (JA ).
Environmentel asserted in its notification that the assignment of the AMTS
License had been consummated on October 10, 2007 two days before
Kurian's request to withdraw the application. Id. The Mobility Division
dismissed Environmentel's notification of consummation, however, because
Kurian's withdrawal of the application had been granted before
Environmentel's submission of its notification of consummation. Id. Thus,
by the time of Environmentel's filing, there was no approved assignment to
consummate. Id.

B. The Mobility Division's Denial Of Environmentel's

Petitions For Reconsideration

On November 19, 2007, Environmentel filed a petition asking the
Wireless Bureau to reconsider the Mobility Division's decision to grant

7 Environmentel contends that it filed the notification of consummation on
October 17, 2007, the day before the staff processed Kurian's withdrawal
request. Br. 17, 41. That is incorrect. The documentary evidence confirms
that Environmentel filed the notification of consummation on October 18,
2007. Division Order, 24 FCC Rcd at 4850 ( 3) (JA ), Order, 25 FCC Rcd
at 13864 ( 2) (JA ). Indeed, the Environmentel's Form 603 bears that date.
See Environmentel Notification of Consummation (JA ).
8 Environmentel filed this notice manually (by letter and e-mail) and
electronically (by filing it as a "pleading" using ULS). Environmental was
unable to file the notice electronically using ULS because that system does
not accept notifications of consummation for assignment applications that are
in "Withdrawn" status. Division Order, 24 FCC Rcd at 4850 ( 3, n.8).
9

Kurian's request to withdraw the assignment application. Petition for
Reconsideration at 1 (Nov. 19, 2007) (JA ). On November 23,
Environmentel filed a second petition seeking reconsideration of the Mobility
Division's dismissal of the notification of consummation that Environmentel
submitted on October 18, 2007. Petition for Reconsideration at 1 (Nov. 23,
2007) (JA ). The Mobility Division denied Environmentel's petitions,
finding that they "d[id] not demonstrate any error by the Division in
processing the withdrawal request or in consequentially dismissing
Environmentel's notification of consummation." Division Order, 24 FCC
Rcd at 4850 ( 5) (JA ).
The Mobility Division rejected Environmentel's claim that only
Environmentel, as the proposed assignee, could withdraw the assignment
application. Division Order, 24 FCC Rcd at 4851 ( 6) (JA ). Rather, the
Division explained, FCC rule 1.948(c) provides that "an assignment
application is an application by the proposed assignor for the Commission to
consent to the proposed assignment of the rights granted by the station
license(s)." Id. & n.17 (emphasis added) (JA ). Thus, "only the proposed
assignor" (i.e., Kurian) "may request withdrawal of an assignment
application." Id.
10

The Mobility Division further found that it was not prohibited from
processing Kurian's request to withdraw the application, despite the fact that
Kurian did not serve it on Environmentel. The Division noted that neither of
Environmentel's petitions for reconsideration identified any Commission rule
requiring such service. Division Order, 24 FCC Rcd at 4851 ( 7) (JA ).

The Mobility Division also refused to consider Environmentel's
contention that, although the Commission had not been notified of
consummation, the approved assignment actually had been consummated
prior to Kurian's request to withdraw the application. The Division explained
that its licensing staff is not obligated to investigate whether the transaction
remains unconsummated before processing a prospective assignor's request
to withdraw an approved assignment application for which no consummation
notification has been received. Division Order, 24 FCC Rcd at 4851 ( 8)
(JA ). The Division further observed that "[i]t would ... be illogical to
accept and process notifications of consummation relating to a withdrawn
assignment application" because "[u]pon the withdrawal of an approved
assignment application," the participants are divested of authority to
consummate the transaction. Id.
Concluding that "the gist of [Environmentel's] grievance appears to be
that Kurian's withdrawal request constitute[d] a breach of [the] contract he
11

entered into with [Environmentel]," the Mobility Division noted that "[t]he
Commission has long held that it is not the proper forum for the resolution of
private disputes such as this, and ... claims for redress stemming from such
disputes should be adjudicated by courts of competent jurisdiction." Division
Order, 24 FCC Rcd at 4852 ( 9) (JA ). Finally, the Division emphasized
that the "processing of the withdrawal request . . . does not immunize
[Kurian] from the legal consequences of such withdrawal" should
Environmentel eventually prevail on a breach of contract claim properly
brought in a state or federal court qualified to consider private contract law
questions. Id.

C. The Commission's Order Denying Review Of The Staff's

Actions

On May 21, 2009, Environmentel filed an application for Commission
review of the Mobility Division's denial of its petitions for reconsideration.
The FCC denied review. Order, 25 FCC Rcd 13863 (JA ).
The Commission found no merit to Environmentel's claim that an
assignment application cannot be withdrawn after the transaction is
consummated in fact. Order, 25 FCC Rcd at 13864 ( 4) (JA ). The FCC
explained that Environmentel had identified "no authority for the proposition
that consummation of which the Commission has not been notified cuts off
an assignor's ability to withdraw a consented assignment application, or the
12

Commission's ability to act on such a request." Id., 25 FCC Rcd at 13865
( 5) (JA ). The Commission, moreover, "concur[red]" with the Mobility
Division "that licensing staff is not required to verify that the transaction
remains unconsummated before processing a request to withdraw an
assignment application." Id. n. 17 (JA ). The Commission found that "[t]he
processing of Kurian's withdrawal request was a routine matter," making the
staff's refusal to process Environmentel's subsequent notification of
consummation proper "based on the simple fact that, at the time the
notification was filed, there was no longer a consented assignment application
to which it could apply." Order, 25 FCC Rcd at 13685 ( 5) (JA ).
The Commission also rejected Environmentel's claim that the Mobility
Division improperly interposed itself in a private contractual dispute when it
failed to credit Environmentel's representation that the transaction had been
consummated. Order, 25 FCC Rcd at 13865 ( 6) (JA ). As the
Commission explained, the Mobility Division "did not purport to determine
whether the transaction should be deemed to have been consummated under
state law," but simply "act[ed] according to ... standard [FCC] procedures in
processing a withdrawal request, and then dismissing an unprocessable
consummation notification." Id. Indeed, "[b]y adhering to its routine
practice ... the [Mobility] Division's actions were consistent with the
13

Commission's policy of not intervening in private contractual disputes that
are the province of the courts." Id. By contrast, "granting Environmentel the
relief requested" would have required the Mobility Division to determine
whether the transaction had been consummated under the applicable state
law, and thus "would have interjected the Commission into a private
contractual dispute between Kurian and Environmentel." Id.
The Commission accordingly denied Environmentel's application for
review and affirmed the Mobility Division's decisions to (1) grant Kurian's
request to withdraw the assignment application and (2) dismiss
Environmentel's subsequently filed notification of consummation. Order, 25
FCC Rcd at 13685 ( 7) (JA ).

SUMMARY OF ARGUMENT

1. The Commission acted within its broad procedural discretion when
it denied Environmentel's Application for Review. As both the Mobility
Division and the Commission found, Environmentel did not demonstrate any
abuse of discretion in the staff's routine processing of the withdrawal request
or in dismissing Environmentel's subsequent notification of consummation.
The FCC's rules and processes allowed Kurian, as the assignor, to withdraw
his application up to the point that the Commission received a notification of
consummation from Environmentel, the proposed assignee. Kurian filed his
14

withdrawal request prior to such notification. Consistent with the
Commission's licensing regulations, agency staff processed that request as a
routine matter, and dismissed Environmentel's subsequently filed notification
of consummation on the ground that there was no live assignment application
to consummate.
2. The Commission also reasonably concluded that granting
Environmentel its requested relief would be inconsistent with the agency's
longstanding policy of not intervening in private contract disputes. Both the
Mobility Division and the Commission found that the gravamen of
Environmentel's grievance was that in withdrawing the assignment
application, Kurian breached his contract with Environmentel. Yet both this
Court and the FCC have long held that the courts, rather than the
Commission, are the proper forum to resolve such disputes. Environmentel,
moreover, has failed to demonstrate its eligibility for an exemption from this
generally applicable rule.
3. The Court should not reach Environmentel's remaining claims
because Environmentel did not present them to the Commission. 47 U.S.C.
405(a) (barring court review of issues of fact or law upon which the FCC
has had no opportunity to pass); Qwest Corp. v. FCC, 482 F.3d 471, 474
15

(D.C. Cir. 2007). But even if these newly minted claims had been properly
9
raised, they provide no basis for reversing the Commission's decision.

ARGUMENT

I.

THE STANDARD OF REVIEW IS HIGHLY DEFERENTIAL.

To the extent that Environmentel challenges the reasonableness of the
Commission's decision, the Court must affirm the agency unless its action is
"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with the law." 5 U.S.C. 706(2)(A). This "[h]ighly deferential" standard of
review "presumes the validity of agency action." AT&T Corp. v. FCC, 220
F.3d 607, 616 (D.C. Cir. 2000).
The Commission, moreover, enjoys broad latitude to establish its own
procedures. See FCC v. Pottsville Broad. Co., 309 U.S. 134, 138 (1940)
("subordinate questions of procedure in ascertaining the public interest, when

9 The FCC does not contest Environmentel's standing before this Court.
Environmentel alleges an injury-in-fact i.e., loss of a license that it expected
to obtain pursuant to an assignment. According to Environmentel, that injury
is, in part, traceable to the FCC's decisions to grant Kurian's withdrawal of
his assignment application and dismiss Environmentel's notification
of consummation of the assignment. Moreover, if the Court were to adopt all
of Environmentel's arguments in their entirety as the holding of the Court,
including Environmentel's claim that the FCC was compelled to accept
Environmentel's notification of consummation (Br. 30-32), Environmentel's
claims arguably would be redressable by Commission action on remand. See
Arecibo Radio Corp.
, 101 F.C.C.2d 545, *3-4 ( 9-10) (1985) (adhering to
court ruling in a contract dispute, FCC waived assignment application
signature rule to facilitate court-approved sale to qualified licensee).

16

the Commission's licensing authority is invoked ... were explicitly and by
implication left to the Commission's own devising, so long ... as it observes
the basic requirements designed for the protection of private as well as public
interest.").
Finally, the Commission's interpretation "of its own rules is entitled to
controlling weight unless it is plainly erroneous or inconsistent with the
regulation." Star Wireless LLC v. FCC, 522 F.3d 469, 473 (D.C. Cir. 2008)
(internal quotation marks and citation omitted); see also Damsky v. FCC, 199
F.3d 527, 535 (D.C. Cir. 2000) (the Court affords substantial deference to the
Commission's interpretation of its own rules and policies, and "will uphold
the FCC's interpretation unless it is `plainly erroneous or inconsistent with
the regulation.'") (internal quotation marks and citation omitted).

II.

THE COMMISSION ACTED WITHIN ITS DISCRETION
IN AFFIRMING THE MOBILITY DIVISION'S DECISION
TO PROCESS KURIAN'S WITHDRAWAL REQUEST
AND DISMISS ENVIRONMENTEL'S SUBSEQUENT
NOTIFICATION OF CONSUMMATION.

Under the Commission's licensing rules, an assignor may file an
application to assign its license, or a portion thereof, to another. Division
Order, 24 FCC Rcd at 4851 ( 6) (JA ); 47 C.F.R. 1.948(c). Once filed,
"the proposed assignor" the licensee of record "may request withdrawal
of [the] assignment application" (Division Order, 24 FCC Rcd at 4851 ( 6)
17

(JA ); 47 C.F.R. 1.934(a)(1)), and may do so at any time until the
prospective assignee formally notifies the Commission that the assignment
has been consummated. Division Order, 24 FCC Rcd at 4851, n.18 (JA ).
Upon receipt of such a request, the Commission "will dismiss that
application." 47 C.F.R. 1.934(a)(1)(i-ii) (emphasis added).
In this case, Kurian submitted an application to partially assign the
spectrum for the AMTS License to Environmentel. Order, 25 FCC Rcd at
13863 ( 2) (JA ). The Commission's staff consented to the partial
assignment. Id. Subsequently, on October 12, 2007, Kurian filed a request to
withdraw his application. Because Environmentel failed to timely notify the
Commission that the transaction had been consummated, as required by FCC
rule 1.948(d), the Commission's staff properly granted Kurian's withdrawal
request. Id. Accordingly, the assignment application was duly designated as
"withdrawn" in ULS on October 18, 2007. Id.
As the Commission found, "[t]he processing of Kurian's withdrawal
request was a routine matter" that the Mobility Division performed in
accordance with the FCC's rules and regulations. Id., 25 FCC Rcd at 13865
( 5) (JA ). Once Kurian's application had been lawfully withdrawn, the
Mobility Division reasonably dismissed Environmentel's subsequent
18

notification of consummation because there was no live assignment to
consummate. Id.
The Commission's interpretation of its own rules is sound and entitled
to substantial deference. Star Wireless LLC, 522 F.3d at 473; Damsky, 199
F.3d at 536. Here, the Commission reasonably applied its rules to find that
the Mobility Division's decisions to (1) grant Kurian's request to withdraw
the assignment application and (2) dismiss Environmentel's subsequently
filed notification of consummation were proper. Order, 25 FCC Rcd at
13685 ( 7) (JA ). Because the agency committed no abuse of discretion in
doing so, its decision denying Environmentel's application for review should
be affirmed. See BDPCS, Inc. v. FCC, 351 F.3d 1177, 1184 (D.C. Cir. 2003)
("The Commission abuses its discretion when it arbitrarily violates its own
rules, not when it follows them.").

A. The Commission Had Authority To Process Kurian's

Withdrawal Request And Dismiss Environmentel's
Consummation Notification.

Environmentel argues that "once the FCC approved the
Kurian/[Environmentel] transaction in April, 2006 under 47 U.S.C. 310(d),
its regulatory role with respect to this transaction ceased." Br. 30.
Specifically, Environmentel contends that the Commission lacked authority
to process Kurian's request to withdraw the assignment application and,
19

accordingly, lacked discretion to refuse to process Environmentel's
subsequent notification of consummation in light of the prior withdrawal. Br.
28-32. Both of Environmentel's claims are wrong.
Environmentel's first claim rests on the erroneous view that "[t]here is
no FCC rule allowing the withdrawal of a license application as a matter of
course simply upon the request of the applicant." Br. 29, n.14; see also Br.
41. This argument ignores rule 1.934(a)(1), which expressly provides that
"[a]ny applicant may request that its application be withdrawn or dismissed."
47 C.F.R. 1.934(a)(1). Pursuant to the FCC's regulations implementing
Section 310(d) of the Act, a license remains with the assignor until the
Commission accepts the assignee's notification of consummation. Division
Order, 24 FCC Rcd at 4851, n.18 (JA ); Havens Order, 19 FCC Rcd at 7054
( 1, n.2). Kurian, the licensee of record, was thus permitted to withdraw his
assignment application on October 12, 2007 six days prior to
Environmentel's submission of its purported consummation notice because
he remained the "applicant" for purposes of rule 1.934(a)(1). And once an
applicant makes such a request, as Kurian did here, the Commission "will"
grant the request. 47 C.F.R. 1.934(a)(1)(i) (emphasis added). Finding no
conflict with the Communications Act or the FCC's rules and policies, the
20

Mobility Division's decision to process Kurian's withdrawal request was
entirely proper.
Environmentel, without support in the Act or the FCC's implementing
regulations, asserts that a withdrawal request "must be supported by facts
which prima facie support [the] ... request (e.g., that parties have mutually
agreed to withdraw the assignment application, that the assignment
transaction cannot be consummated, etc.)." Br. 22; see also Br. 31, n.16.
According to Environmentel, Kurian's request which "was unaccompanied
by any factual support whatsoever" was procedurally deficient. Id. But
neither rule 1.934(a)(1) nor Commission precedent require the "factual
support" demanded by Environmentel. Likewise, Form 603 which the
Commission uses to process license assignment applications and requests to
withdraw such applications does not require an assignor to explain the basis
for a proposed withdrawal, nor does it provide a space on the form for the
assignor to present this information.
There would have been no basis for the Commission to require Kurian
to demonstrate that he had obtained Environmentel's consent, given that
Kurian (as the licensee of record) had full authority under the FCC's rules to
withdraw his application, and to do so without explanation. To the extent that
Environmentel now contends that Kurian's withdrawal request was
21

inconsistent with Kurian's agreement with Environmental (either because he
failed to obtain Environmentel's consent to the withdrawal or because the
transaction had been consummated in fact), its claim is grounded in contract
law, not the Communications Act or the FCC's licensing rules. See infra, pp.
25-31. Furthermore, as both the Commission and the judiciary have long
held, contract claims are to be settled by courts of competent jurisdiction
not the FCC. Id. It follows that the Commission's licensing staff was not
required to consider, let alone "investigate any ostensible conflict" between,
Kurian's October 12, 2007 request to withdraw the assignment application
and Environmentel's October 18, 2007 notification of consummation. See
Br. 31; see also Br. 22.

Environmentel's second claim rests on the assertion that "the
Commission is not vested with any discretion under 1.948(d) [of its rules]
to refuse to file or deny a notice of consummation," Br. 30, the filing of
which Environmentel analogizes to a "ministerial act." Br. 28-29.
Environmentel is mistaken. In fact, the Commission does have such
discretion, and has regularly exercised it. See ACL-NUSCO Assignment
Order, 25 FCC Rcd at 531 ( 18) (explaining that "parties ... consummate the
transaction ... at their own risk, including the risk that the grant might
subsequently be rescinded"); Improvement Leasing Co., 73 F.C.C.2d 676,
22

684 ( 19) (1979) ("consummation in no way prejudices the Commission's
ability to take any remedial action it may consider necessary at a future
date"), aff'd sub nom. WATCH v. FCC, 665 F.2d 1264 (D.C. Cir. 1981);
Amendment of Section 1.948(d) of the Commission's Rules to Extend the
Time for Consummation and Notification of Wireless Transfers and
Assignments, 1999 WL 988172, ( 4, n.4) (1999) (revisions to rule 1.948(d)
"do[] not modify [the FCC's] authority to impose additional consummation
10
and notification requirements on specific transactions.").
The Commission, for example, has notified licensees that it will
rescind approval of a transfer or assignment if it does not receive timely
notification of consummation, even if the transaction has been consummated
in fact. See 2004 Public Notice, 19 FCC Rcd at 24550. Accordingly, if the

10 Environmentel further asserts that "it is undisputed that in the instant case
the Wireless Bureau was notified of the consummation of the
[Environmentel]/Kurian transaction" and therefore "it no longer maintained
the discretion to approve the Withdrawal Application." Br. 40-41. The
"notification" cited by Environmentel is an October 17, 2007 e-mail from
Environmentel principal Warren C. Havens to Wireless Bureau staff. That is
not proper notification of consummation, however, because the e-mail stated
only that Environmentel intended to file a notification of consummation in
the near future, whereas section 1.948(d) of the Commission's rules requires
an assignee to actually file a notification of consummation using Form 603.
See 47 C.F.R. 1.948(d). In fact, Environmentel tried to file electronically a
notification of consummation using Form 603 on October 18, 2007, but ULS
blocked the submission because the assignment application had been
withdrawn. Division Order, 24 FCC Rcd at 4850 ( 3, n.8) (JA ).
23

assignee files a consummation notification after the filing deadline, the
Wireless Bureau will dismiss it, because the parties cannot consummate a
license assignment that no longer has the requisite Commission consent. See,
e.g., Notice of Dismissal, File No. 0004638774 (WTB March 23, 2011);
Notice of Dismissal, File No. 0004636664 (WTB March 9, 2011)
(Attachment B). Likewise, the Commission has corrected its licensing
records to reflect a court ruling that set aside an assignment or transfer
previously approved by the agency (and putatively consummated by the
parties), after the court found that the transaction had never been lawfully
consummated. See Tsooris Corp., 12 FCC Rcd at 1678-79 ( 8); Dale J.
Parsons, Jr., 10 FCC Rcd 2718, 2719-20 ( 8-13) (1995). In light of the
precedent establishing that the Commission may "unwind" a consummated
transaction after the fact, it follows that the agency may dismiss a notification
of consummation where, as here, there is no pending assignment to
consummate.
Once Kurian's application had been lawfully withdrawn, the Mobility
Division reasonably dismissed Environmentel's subsequent notification of
consummation "based on the simple fact that, at the time the notification was
filed, there was no longer a consented assignment application to which it
could apply." Order, 25 FCC Rcd at 13865 ( 5) (JA ). As the Mobility
24

Division explained, "[u]pon the withdrawal of an approved assignment
application, the participants no longer have Commission authority to
consummate the proposed transaction." Division Order, 24 FCC Rcd at
4851-52 ( 8) (JA ). It "would therefore be illogical to accept and process
notifications of consummation relating to a withdrawn assignment
application." Id. (JA ).

B. The Commission Acted Reasonably And Consistent With

Precedent When It Declined To Consider
Environmentel's Breach Of Contract Claims.

Environmentel next complains that the Wireless Bureau erred in
processing Kurian's request to withdraw the assignment application because
the transaction allegedly had been consummated before the withdrawal
request was filed. Br. 28-30. However, as the Mobility Division and the
Commission explained, whether or not the transaction was consummated
prior to withdrawal is a matter governed by state law. Division Order, 24
FCC Rcd at 4852 ( 9) (JA ); Order, 25 FCC Rcd at 13865 ( 6) (JA ).
"[C]onsistent with the Commission's policy of not intervening in private
contractual disputes that are the province of the courts," the Mobility
Division acted reasonably when it "adher[ed] to its routine practice," as set
forth in the FCC's regulations, by processing Kurian's withdrawal request.
Order, 25 FCC Rcd at 13865 ( 6) (JA ); see also Listeners' Guild v. FCC,
25

813 F.2d 465, 469 (D.C. Cir. 1987) (endorsing "the Commission's
longstanding policy of refusing to adjudicate private contract law questions");
Northwest Broad., Inc., 12 FCC Rcd 3289 (1997), aff'd sub nom. Montierth v.
FCC, 159 F.3d 636 (D.C. Cir 1998) (per curiam) (the FCC historically and
consistently has left questions of private contracts to local courts of
competent jurisdiction).
As the Mobility Division recognized, "the gist" of Environmentel's
grievance with Kurian's withdrawal request appeared to be that the request
breached a contract with Environmentel. Division Order, 24 FCC Rcd at
11
4852 ( 9) (JA ). But "where a licensee is accused of breaching a contract
to assign its license, the determination of whether a breach occurred is left to
a local state court." Merkely, 94 F.C.C.2d 829, 838 ( 18) (1983), recon.
denied, 56 RR 2d 413 (1984), aff'd per curiam, 776 F.2d 365 (D.C. Cir.
1985). That is because "[t]he Commission," which is charged with
implementation and enforcement of the Communications Act, "does not
possess the resources, the expertise or the jurisdiction to adjudicate such

11 See e.g., Br. 18 ("Kurian succeeded in unilaterally killing the deal
between him and [Environmentel], in derogation of the plain terms of the
Agreement."); id. at 30 ("[O]nce the transaction between [Environmentel]
and Kurian was consummated (i.e., once all precedent to the closing of the
transaction had occurred), Kurian's obligations to transfer its license to
[Environmentel] vested as a matter of contract law.").
26

claims fully." Id.; see also Regents of Univ. Sys. of Georgia v. Carroll, 338
U.S. 586, 602 (1950) ("We do not read the Communications Act to give
authority to the Commission to determine the validity of contracts between
licensees and others.").

Environmentel unsuccessfully tries to distinguish this case from
Listeners' Guild and Regents which were cited by the Mobility Division (24
FCC Rcd at 4852 ( 9, n.24) (JA )) and the Commission (25 FCC Rcd at
13864 ( 3, n.11) (JA )) by arguing that the validity of its agreement with
Kurian is not directly at issue here. Br. 27-28. That alleged distinction does
not undermine the FCC's finding that Environmentel's dispute with Kurian is
a matter of contract law that the Commission should not itself decide. Just
like Environmentel's potential breach of contract claim, Environmental's
claim in this case is based on its contention that Kurian's request to withdraw
the assignment application came after the partial assignment was validly
consummated. See Br. 28-32, 40-41; Application for Review at 2-7 (JA ).
Environmental asked the Commission to disregard Kurian's assertion that a
valid consummation had occurred. But as the FCC has repeatedly found,
"[w]hether consummation of a Commission-approved sale occurred is a
contractual issue within the province of a local court, not the Commission."
27

Inforum Commc'ns, Inc., 20 FCC Rcd 820, 827 ( 12) (2005); Tsooris Corp.,
12
12 FCC Rcd at 1678 ( 8) (same).
In
Tsooris Corp., for example, the Commission refused to determine
whether an assignment had been consummated after an assignor contested the
assignee's properly filed notice of consummation. 12 FCC Rcd at 1676 ( 2).
The Commission instead notified the parties that after a local court of
competent jurisdiction resolved the conflict over the consummation, "[t]he
parties may then refer that court's determination as to their rights to [the
FCC] for any action appropriate under the circumstances." Id. (citations and
quotation marks omitted). In other words, while the dispute was initially
brought to the Commission, the FCC underscored that it was for a court to
determine whether and, if so, when a valid consummation had occurred. Id.
After a state court found that there was no such consummation, the

12 Environmentel contends that "once all conditions precedent to the closing
of the Agreement occurred ..., consummation of the Agreement had taken
place." Br. 28; see also Br. 31-32. Environmentel thus assumes the very
question that it wanted the Wireless Bureau decide, i.e., whether
Environmentel had satisfied its duties under the Agreement and therefore
accomplished "consummation" of the transaction. See, e.g., Lyle v. Andrews,
227 S.E.2d 686 (Va. 1976) (purchaser's refusal to consummate a sale
subjected him to liability for breach of contract); Casey v. Jones, 339 A.2d
33, 34 (Md. 1975) (interpreting a contract to find that a broker was not
entitled to a commission after the purchaser refused to consummate a sale).
That would have embroiled the Mobility Division's licensing staff in a
contract dispute contrary to longstanding FCC precedent.
28

Commission, upon the request of the assignor, "chang[ed] the licensee of
record to comport with the court's determination." Id., 12 FCC Rcd at 1679
( 9).
Accordingly, there is no merit to Environmentel's contention that the
Commission "took sides in the contractual dispute between Kurian and
[Environmentel], effectively resolving [the] dispute in favor of Kurian." Br.
32. In processing Kurian's first-filed request to withdraw his assignment
application, the Commission rightly declined to become embroiled in
13
resolving a question of state contract law. "[T]he [Mobility] Division did
not purport to determine whether the transaction should be deemed
consummated under state law," the Commission explained, "nor does
anything in the [Division] Order affect the rights of the parties under state
14
law." Order, 25 FCC Rcd at 13865 ( 6) (JA ). Rather, it is for the courts

13 Where there is a dispute as to whether an assignment was consummated,
the Commission adheres to the status quo until a court of competent
jurisdiction resolves the dispute. Thus, if the license had already been placed
in the assignee's name, the Commission leaves the license in the assignee's
name until a court decides otherwise. See, e.g., Tsooris Corp., 12 FCC Rcd at
1676 ( 2), Inforum Commc'ns, 20 FCC Rcd at 827 ( 12). Likewise, if the
license was still in the assignor's name at the time of the dispute, the
Commission leaves the license in the assignor's name until a court decides
otherwise.
14 Mobility Division staff only asked Environmentel whether Kurian (the
licensee of record) actually filed the withdrawal application. See pp. 33-34,
infra.
29

to decide whether the consummation was valid, after which "[t]he
Commission can ... take whatever steps are necessary, if any, to
accommodate the court's ruling on matters within its jurisdiction." See
Tsooris Corp., 12 FCC Rcd at 1676 ( 9).
Indeed, the Mobility Division emphasized that "[its] processing of the
withdrawal request ... does not immunize any party from the legal
consequences of [the] withdrawal." 24 FCC Rcd at 4852-53 ( 9) (JA ); see
also Northwest Broad., Inc., 12 FCC Rcd at 3295-96 ( 14) (1997)
("[A]pproval of an assignment application . . . is not intended to prejudice
any relief to which the parties may ultimately be entitled or to foreclose the
Commission from taking any appropriate action in light of any such court
decision."). Thus, if Environmentel were to prevail on a breach of contract
claim in a court of competent jurisdiction, and the court required specific
performance as a remedy, the Commission could amend its licensing records
to reflect the court's ruling. See Tsooris Corp., 12 FCC Rcd at 1679 ( 9)
(Commission approves staff action correcting the agency's licensing records
to comply with a court's determination that consummation of transfer had not
occurred); Dale J. Parsons, 10 FCC Rcd at 2719-20 ( 6, 9) (same).
Indeed, Environmentel concedes that it could "preserve its contractual
rights" by "fil[ing] a specific performance suit," after which it could
30

"commenc[e] the license assignment review process ... before the Wireless
Bureau," should a court rule in its favor. Br. 32. Nonetheless, Environmentel
has declined to institute such a proceeding, claiming that it "would engender
further delay and expense." Id. The Commission was not required to break
with its longstanding policy of deferring to the courts on contract matters to
settle this private contract dispute, simply because Environmentel may find it
more convenient to proceed before the agency.

C. Environmentel Is Not Eligible For An "Exception" To

The General Rule That The Commission Does Not
Intervene In Private Contractual Disputes.

Environmentel acknowledges "the FCC's general rule that it does not
interject itself in contractual matters." Br. 33. Nonetheless, Environmentel
contends that the Commission abused its discretion in declining to make any
exception for Environmentel here. Br. 35-41. There is no merit to
Environmentel's argument.
Environmentel claims that the Commission will set aside an
"assignment-related document" that "is filed under an ostensible authority
which in fact does not exist." Br. 34. According to Environmentel, the
Commission's refusal to dismiss Kurian's request to withdraw his assignment
application was thus arbitrary and capricious given Kurian's alleged lack of
candor. Br. 34-36, 38-41. As an initial matter, all of the cases cited by
31

Environmentel were decided by the Commission's staff on delegated
authority, and as this Court has held, a party cannot challenge a Commission-
level order based on its alleged inconsistency with staff-level decisions. See
Comcast Corp. v. FCC, 526 F.3d 763, 769 (D.C. Cir. 2008) (affirming this
Court's "well-established view that an agency is not bound by the actions of
its staff if the agency has not endorsed those actions.").
Those staff decisions, moreover, are inapposite. In Nevada
Cogeneration Association Station WPMR751, Las Vegas, Nevada, 24 FCC
Rcd 5501, 5502 ( 6) (WTB 2009), the Mobility Division determined that
Kurian was not authorized to submit an assignment application on behalf of
15
the putative assignor, thus the purported assignment was void ab initio.
Similarly, in Pacific Wireless Technologies, Inc. 800 Mhz Station KGQ445,
18 FCC Rcd 7833, 7834 ( 2) (WTB 2003), the Mobility Division's
predecessor reinstated a license to the original assignor (Lodi), after its
putative agent notified the staff that he had lacked authority to assign Lodi's
license to assignee Pacific Wireless. As in Nevada Congeneration
Association, the unauthorized assignment was void ab initio because the

15 Environmentel argues that Nevada Congeneration Association provides
evidence of Kurian's "propensity for making false filings with FCC" (Br. 36)
and "misrepresentations." Br. 40. The Commission made no such findings in
that order and took no enforcement action against Kurian on that basis.
32

putative agent lacked authority to act as Lodi's signatory. Id., 18 FCC Rcd at
7835 ( 3). Finally, in Palmetto Cmmc'ns Co. WDIX, Yadkinville, North
Carolina, 6 FCC Rcd 2193, 2194-95 ( 10) (Rev.Bd 1991), the former
Review Board revisited grant of a broadcast construction permit after it
discovered that the licensee had misrepresented its ownership structure and,
as a result, it was unclear who actually held the license.

Here, by contrast, there is no dispute that Kurian is the licensee of
record for the AMTS License. Unlike the putative assignors in the staff-level
decisions cited by Environmentel, Kurian must be assumed to have had
authority to file, and subsequently withdraw, his own application to partially
assign that license to Environmentel. See pp. 19-25, supra.

Indeed, Environmentel's proposed "exception" to the rule that the
Commission will not decide matters of state contract law turns on allegations
regarding Kurian's lack of candor not his lack of authority as the licensee of
record. Br. 38. Environmentel seems to contend that "Kurian's Withdrawal
request was tantamount to an assertion that consummation had not occurred."
Br. 31. In support, Environmentel relies on an October 17, 2007, e-mail from
Scot Stone, Deputy Chief of the Mobility Division, to Warren C. Havens,
Environmentel principal (JA ), in which Mr. Stone inquired, "Is the
withdrawal request legitimate?" Br. 16. When read in context, however, it is
33

clear that the purpose of that e-mail was to determine whether Kurian had
actually filed the withdrawal request not whether he had obtained
Environmentel's consent to do so.
As background, the Commission's licensing staff discovered that in
May 2007 Mr. Kurian's former wife had, without authorization, withdrawn
an assignment application filed with the Commission by one of Mr. Kurian's
business associates, and then changed the associate's ULS password so that
he could take no further action concerning the application. Pappammal
Kurian, 24 FCC Rcd 4842, 4846 (WTB MD 2009). Mr. Stone's inquiry was
made to ensure that Mr. Kurian and not Mrs. Kurian, who had opposed the
partial assignment to Environmentel had filed the request to withdraw the
assignment application. Indeed, Mr. Stone explained to Havens on October
18, 2007 that "[w]e have confirmed that Thomas Kurian did in fact file the
Withdrawal, and have processed the WD accordingly." See October 18, 2007
e-mail from Scot Stone to Warren Havens (JA ). Environmentel does not
dispute that the withdrawal request was in fact filed by Kurian.
As the staff decisions cited by Environmentel make clear, the
Commission has an obligation under the Communications Act to ensure that
licenses are held and assigned only by those with authority to do so. By
contrast, "licensing staff is not required to verify that the transaction remains
34

unconsummated before processing a request to withdraw an assignment
application" (Order, 25 FCC Rcd at 13865 ( 5, n.17) (JA ); see also
Division Order, 24 FCC Rcd at 4851 ( 8) (JA )), because consummation is
a matter of contract law. Environmentel's allegations about Kurian's lack of
candor do not provide a valid basis for the Commission to depart from its
general rule that it does not interject itself into private contractual disputes.
Environmentel further contends that the FCC will intervene in a
contract dispute "where a rule of the Commission has been violated." Br. 33.
But as we explain below, see pp. 35-37, Environmentel never presented to the
Commission its newly minted claim that Kurian violated the Commission's
ex parte rules. Given Environmentel's failure to allege (much less show) a
rule violation, it cannot take advantage of an exception that turns on the
existence of such a violation.

III. ENVIRONMENTEL HAS WAIVED ITS REMAINING

CLAIMS WHICH, EVEN IF PROPERLY PRESENTED,
WOULD PROVIDE NO BASIS TO REVERSE THE
COMMISSION'S ORDER.

A. Environmentel's Claim That Kurian Violated The

Commission's Ex Parte Rules Is Barred By 47 U.S.C.
405(a) And Is Incorrect.

Environmentel complains that the Commission did not address whether
Kurian violated the FCC's ex parte rules when he failed to serve
Environmentel with his request to withdraw the assignment application. Br.
35

21. The reason why the Commission did not address this issue is
straightforward: Environmentel failed to raise it. See Application for Review
(JA ). Hence, Environmentel's claim that Kurian violated the Commission's
ex parte rules (Br. 41-55) is not properly before the Court because it was not
16
raised before the agency.
Section 405(a) of the Communications Act provides that the filing of a
petition for reconsideration with the FCC is a "condition precedent to judicial
review" of any "questions of fact or law upon which the Commission . . . has
been afforded no opportunity to pass." 47 U.S.C. 405(a). Environmentel
cannot avoid section 405(a)'s bar by alleging that it presented the ex parte
issue to the Wireless Bureau in its petitions for reconsideration. This Court
has long held that "an issue cannot be preserved for judicial review simply by
raising it before a Bureau of the FCC" because "[i]t is `the Commission' itself
that must be afforded the opportunity to pass." Bartholdi Cable Co. Inc. v.
FCC, 114 F.3d 274, 279 (D.C. Cir. 1997); see also Coalition for
Noncommercial Media v. FCC, 249 F.3d 1005, 1009 (D.C. Cir. 2001)

16 The Commission's ex parte rules address public disclosure of written or
oral communications that are directed to the merits or outcome of a
proceeding and that, if written, are not served on all of the parties to the
proceeding and, if oral, are made without giving all the parties to a
proceeding advance notice and an opportunity to be present. See 47 C.F.R
1.1200 through 1.1216.
36

(raising an argument before the Mass Media Bureau did not provide the
Commission an opportunity to pass on the issue for purposes of section

405(a)). This Court has held that under section 405(a), it "generally lack[s]
jurisdiction to review arguments that have not first been presented to the
Commission." Qwest Corp, 482 F.3d at 474; accord Havens v. FCC,
Judgment, No. 02-1358, slip. op. at 2 (D.C. Cir. May 24, 2011) (Court held it
"lacked jurisdiction" to consider an argument appellant did not argue before
the Commission). Because Environmentel never presented its ex parte claim
to the Commission, that claim is now barred, and the Court should dismiss it.
In any event, Environmentel's claim fails on the merits. Kurian was
not required to serve his request to withdraw the assignment application on
Environmentel because 47 C.F.R. 1.1204(a)(1) exempts from the
Commission's ex parte requirements those presentations that involve the
filing of "required forms."
An assignor requesting Commission consent to withdraw an
assignment application is required to file FCC Form 603. See 2005 Public
Notice, 20 FCC Rcd at 13046. That is precisely what Kurian did here.
Bureau Order, 24 FCC Rcd at 4850 ( 3). Accordingly, Kurian was not
required to serve Environmentel with his request to withdraw the assignment
application, because the filing of a required form in this case, FCC Form
37

603 is exempt under the Commission's ex parte rules. See Ass'n. for Cmty.
Educ., Inc., 19 FCC Rcd 12682, 12685 ( 8) (2004) (request for technical
modification of FM translator authorizations filed on FCC Form 349 is
exempt from ex parte requirements); Beyond the Bay Media Group, 21 FCC
Rcd 6967, 6974 ( 20) (MB 2006) (request to amend an application to modify
broadcast facilities filed on FCC Form 301 is exempt from ex parte
requirements); Saga Cmmc'ns of New England, LLC, 21 FCC Rcd 2466,
2468 ( 6-7) (GC 2006) (same).

B. Environmentel's Claim That Kurian's Withdrawal

Request Was Not Effective On The Date It Was Filed Is
Barred By 47 U.S.C. 405(a) And Fails On The Merits.

Environmentel finally asserts that the Mobility Division's decision to
process Kurian's withdrawal request is void ab initio because the Wireless
Bureau failed to timely issue a Public Notice announcing that decision, as
required by section 1.933(a) of the Commission's rules. Br. 55 citing 47
C.F.R. 1.933(a)(2) (explaining that "[p]eriodically, the Commission issues
Public Notices in the Wireless Radio Services listing information of public
significance," including "Commission actions on pending applications
previously listed as accepted for filing"). That claim, like Environmentel's ex
parte argument, is barred by section 405(a) of the Act because it was never
38

presented to the Commission. 47 U.S.C. 405(a); Qwest Corp., 482 F.3d at
474. The Court should therefore dismiss it.
Regardless, the Wireless Bureau's delay in listing the action on public
notice provides no basis for overturning the Mobility Division's decisions to
process Kurian's withdrawal request and dismiss Environmentel's subsequent
17
notification of consummation. At most, the Wireless Bureau's delay in
providing public notice of those actions constituted "harmless error." Celcom
Commc'ns Corp. v. FCC, 789 F.2d 67, 70 n.5 (D.C. Cir. 1986) (finding the
failure to issue a Public Notice harmless error because the appellant received
actual notice of the Commission's decision). Environmentel, like the
appellant in Celcom, id., "suffered no injury," because the Mobility Division
"notified" Environmentel on October 23, 2007, that it had processed Kurian's
request to withdraw the assignment application and dismissed its notice of
consummation. See Notice of Dismissal (JA ). Indeed, there is no question
that Environmentel had actual notice of the Mobility Division's actions
because it sought reconsideration by the Wireless Bureau shortly thereafter.
(JA ).

17 The Wireless Bureau, acting on delegated authority, issues such Public
Notices on behalf of the Commission. See n.5, supra.
39

Environmentel nonetheless contends that "the Wireless Bureau's
procedural misstep had demonstrably negative consequences." Br. 56.
Relying on section 1.103(a) of the Commission's rules, 47 C.F.R. 1.103(a),
Environmentel argues that the Public Notice set the effective date of Kurian's
withdrawal request as June 4, 2008, so that the Commission's "conclusion
that the Consummation Notification could not have been processed once the
Withdrawal Request was filed and processed" was "based upon an incorrect
premise as to the effective dates of the parties' responsive filings." Br. 56;
see also Br. 8.
Environmentel's reliance on Rule 1.103(a) is misplaced. That rule
establishes the effective date of actions taken by the full Commission. See 47
C.F.R. 1.103(a) ("[u]nless otherwise specified by law or Commission rule
... the effective date of any Commission action shall be the date of public
notice of such action."). However, it was the Mobility Division, acting on
delegated authority, that processed Kurian's request to withdraw the
assignment application. And the effective dates of actions taken pursuant to
delegated authority are determined by rule 1.102(b)(1). See 47 C.F.R.
1.102(b)(1) ("Non-hearing or interlocutory actions taken pursuant to
delegated authority shall, unless otherwise ordered by the designated
authority, be effective upon release of the document containing the full text of
40

such action, or in the event such a document is not released, upon release of a
public notice announcing the action in question.").
Had Environmentel relied upon the correct rule, its claim would still
fail on the merits. Although the Mobility Division actually processed
Kurian's request to withdraw the assignment application on October 18, 2007
(a fact of which, as noted above, Environmentel had actual knowledge), rule
1.102(b)(1) established the effective date for that action as June 4, 2008 the
date upon which the Wireless Bureau issued the Public Notice. But the
Public Notice does not affect in any way the effective date of Kurian's
withdrawal request, because it was not a Bureau-level action subject to rule
1.102(b). Kurian's request to withdraw the assignment application was filed
on October 12, 2007, six days prior to Environmentel's subsequent
notification of consummation. And as discussed above (see pp. 19-25,
supra), the Commission will process a withdrawal request if it is filed as in
this case prior to the FCC's receipt of notification of consummation.
41

CONCLUSION

For the reasons set forth herein, the appeal should be dismissed in part
and otherwise denied on the merits.
Respectfully
submitted,

AUSTIN C. SCHLICK
GENERAL COUNSEL

PETER KARANJIA
DEPUTY GENERAL COUNSEL

RICHARD K. WELCH
ACTING ASSOCIATE GENERAL
COUNSEL

/s/ Maureen K. Flood

MAUREEN K. FLOOD
COUNSEL

FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
June 1, 2011
42

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

ENVIRONMENTEL, LLC,
APPELLANT,
v.
NO. 10-1344
FEDERAL COMMUNICATIONS COMMISSION

APPELLEE.



CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying "Brief for Appellee" in the captioned case
contains 8,807 words.

/s/ Maureen K. Flood
Maureen K. Flood

Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
June 1, 2011















Appendix A:
Statutes and Regulations




5 U.S.C. 706
47 U.S.C. 155
47 U.S.C. 301
47 U.S.C. 310
47 U.S.C. 402
47 U.S.C. 405
47 C.F.R. 0.131
47 C.F.R. 0.331
47 C.F.R. 1.102
47 C.F.R. 1.103
47 C.F.R. 1.933
47 C.F.R. 1.934
47 C.F.R 1.948
47 C.F.R. 80.123

5 U.S.C. 706

Scope of Review.

To the extent necessary to decision and when presented, the reviewing court shall
decide all relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terms of an agency
action. The reviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to
be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557
of this title or otherwise reviewed on the record of an agency hearing provided by
statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo
by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or
those parts of it cited by a party, and due account shall be taken of the rule of
prejudicial error.

2

47 U.S.C. 155

(a) Chairman; duties; vacancy

The member of the Commission designated by the President as chairman shall be
the chief executive officer of the Commission. It shall be his duty to preside at all
meetings and sessions of the Commission, to represent the Commission in all
matters relating to legislation and legislative reports, except that any commissioner
may present his own or minority views or supplemental reports, to represent the
Commission in all matters requiring conferences or communications with other
governmental officers, departments or agencies, and generally to coordinate and
organize the work of the Commission in such manner as to promote prompt and
efficient disposition of all matters within the jurisdiction of the Commission. In the
case of a vacancy in the office of the chairman of the Commission, or the absence
or inability of the chairman to serve, the Commission may temporarily designate
one of its members to act as chairman until the cause or circumstance requiring
such designation shall have been eliminated or corrected.

(b) Organization of staff

From time to time as the Commission may find necessary, the Commission shall
organize its staff into (1) integrated bureaus, to function on the basis of the
Commission's principal workload operations, and (2) such other divisional
organizations as the Commission may deem necessary. Each such integrated
bureau shall include such legal, engineering, accounting, administrative, clerical,
and other personnel as the Commission may determine to be necessary to perform
its functions.

(c) Delegation of functions; exceptions to initial orders; force, effect and
enforcement of orders; administrative and judicial review; qualifications and
compensation of delegates; assignment of cases; separation of review and
investigative or prosecuting functions; secretary; seal

(1) When necessary to the proper functioning of the Commission and the prompt
and orderly conduct of its business, the Commission may, by published rule or by
order, delegate any of its functions (except functions granted to the Commission by
this paragraph and by paragraphs (4), (5), and (6) of this subsection and except any
action referred to in sections 204(a)(2), 208(b), and 405(b) of this title) to a panel
of commissioners, an individual commissioner, an employee board, or an
individual employee, including functions with respect to hearing, determining,
3

ordering, certifying, reporting, or otherwise acting as to any work, business, or
matter; except that in delegating review functions to employees in cases of
adjudication (as defined in section 551 of Title 5), the delegation in any such case
may be made only to an employee board consisting of two or more employees
referred to in paragraph (8) of this subsection. Any such rule or order may be
adopted, amended, or rescinded only by a vote of a majority of the members of the
Commission then holding office. Except for cases involving the authorization of
service in the instructional television fixed service, or as otherwise provided in this
chapter, nothing in this paragraph shall authorize the Commission to provide for
the conduct, by any person or persons other than persons referred to in paragraph
(2) or (3) of section 556(b) of Title 5, of any hearing to which such section applies.

(2) As used in this subsection the term "order, decision, report, or action" does not
include an initial, tentative, or recommended decision to which exceptions may be
filed as provided in section 409(b) of this title.

(3) Any order, decision, report, or action made or taken pursuant to any such
delegation, unless reviewed as provided in paragraph (4) of this subsection, shall
have the same force and effect, and shall be made, evidenced, and enforced in the
same manner, as orders, decisions, reports, or other actions of the Commission.

(4) Any person aggrieved by any such order, decision, report or action may file an
application for review by the Commission within such time and in such manner as
the Commission shall prescribe, and every such application shall be passed upon
by the Commission. The Commission, on its own initiative, may review in whole
or in part, at such time and in such manner as it shall determine, any order,
decision, report, or action made or taken pursuant to any delegation under
paragraph (1) of this subsection.

(5) In passing upon applications for review, the Commission may grant, in whole
or in part, or deny such applications without specifying any reasons therefor. No
such application for review shall rely on questions of fact or law upon which the
panel of commissioners, individual commissioner, employee board, or individual
employee has been afforded no opportunity to pass.

(6) If the Commission grants the application for review, it may affirm, modify, or
set aside the order, decision, report, or action, or it may order a rehearing upon
such order, decision, report, or action in accordance with section 405 of this title.

4

(7) The filing of an application for review under this subsection shall be a
condition precedent to judicial review of any order, decision, report, or action
made or taken pursuant to a delegation under paragraph (1) of this subsection. The
time within which a petition for review must be filed in a proceeding to which
section 402(a) of this title applies, or within which an appeal must be taken under
section 402(b) of this title, shall be computed from the date upon which public
notice is given of orders disposing of all applications for review filed in any case.

(8) The employees to whom the Commission may delegate review functions in any
case of adjudication (as defined in section 551 of Title 5) shall be qualified, by
reason of their training, experience, and competence, to perform such review
functions, and shall perform no duties inconsistent with such review functions.
Such employees shall be in a grade classification or salary level commensurate
with their important duties, and in no event less than the grade classification or
salary level of the employee or employees whose actions are to be reviewed. In the
performance of such review functions such employees shall be assigned to cases in
rotation so far as practicable and shall not be responsible to or subject to the
supervision or direction of any officer, employee, or agent engaged in the
performance of investigative or prosecuting functions for any agency.

(9) The secretary and seal of the Commission shall be the secretary and seal of
each panel of the Commission, each individual commissioner, and each employee
board or individual employee exercising functions delegated pursuant to paragraph
(1) of this subsection.

(d) Meetings

Meetings of the Commission shall be held at regular intervals, not less frequently
than once each calendar month, at which times the functioning of the Commission
and the handling of its work load shall be reviewed and such orders shall be
entered and other action taken as may be necessary or appropriate to expedite the
prompt and orderly conduct of the business of the Commission with the objective
of rendering a final decision (1) within three months from the date of filing in all
original application, renewal, and transfer cases in which it will not be necessary to
hold a hearing, and (2) within six months from the final date of the hearing in all
hearing cases.

(e) Managing Director; appointment, functions, pay

5

The Commission shall have a Managing Director who shall be appointed by the
Chairman subject to the approval of the Commission. The Managing Director,
under the supervision and direction of the Chairman, shall perform such
administrative and executive functions as the Chairman shall delegate. The
Managing Director shall be paid at a rate equal to the rate then payable for level V
of the Executive Schedule.
6

47 U.S.C. 301

It is the purpose of this chapter, among other things, to maintain the control
of the United States over all the channels of radio transmission; and to
provide for the use of such channels, but not the ownership thereof, by
persons for limited periods of time, under licenses granted by Federal
authority, and no such license shall be construed to create any right, beyond
the terms, conditions, and periods of the license. No person shall use or
operate any apparatus for the transmission of energy or communications or
signals by radio (a) from one place in any State, Territory, or possession of
the United States or in the District of Columbia to another place in the same
State, Territory, possession, or District; or (b) from any State, Territory, or
possession of the United States, or from the District of Columbia to any
other State, Territory, or possession of the United States; or (c) from any
place in any State, Territory, or possession of the United States, or in the
District of Columbia, to any place in any foreign country or to any vessel; or
(d) within any State when the effects of such use extend beyond the borders
of said State, or when interference is caused by such use or operation with
the transmission of such energy, communications, or signals from within
said State to any place beyond its borders, or from any place beyond its
borders to any place within said State, or with the transmission or reception
of such energy, communications, or signals from and/or to places beyond the
borders of said State; or (e) upon any vessel or aircraft of the United States
(except as provided in section 303(t) of this title); or (f) upon any other
mobile stations within the jurisdiction of the United States, except under and
in accordance with this chapter and with a license in that behalf granted
under the provisions of this chapter.

7

47 U.S.C. 310

(a) Grant to or holding by foreign government or representative

The station license required under this chapter shall not be granted to or held
by any foreign government or the representative thereof.

(b) Grant to or holding by alien or representative, foreign corporation, etc.

No broadcast or common carrier or aeronautical en route or aeronautical
fixed radio station license shall be granted to or held by--

(1) any alien or the representative of any alien;

(2) any corporation organized under the laws of any foreign government;

(3) any corporation of which more than one-fifth of the capital stock is
owned of record or voted by aliens or their representatives or by a foreign
government or representative thereof or by any corporation organized under
the laws of a foreign country;

(4) any corporation directly or indirectly controlled by any other corporation
of which more than one-fourth of the capital stock is owned of record or
voted by aliens, their representatives, or by a foreign government or
representative thereof, or by any corporation organized under the laws of a
foreign country, if the Commission finds that the public interest will be
served by the refusal or revocation of such license.

(c) Authorization for aliens licensed by foreign governments; multilateral or
bilateral agreement to which United States and foreign country are parties as
prerequisite

In addition to amateur station licenses which the Commission may issue to
aliens pursuant to this chapter, the Commission may issue authorizations,
under such conditions and terms as it may prescribe, to permit an alien
licensed by his government as an amateur radio operator to operate his
amateur radio station licensed by his government in the United States, its
possessions, and the Commonwealth of Puerto Rico provided there is in
effect a multilateral or bilateral agreement, to which the United States and
the alien's government are parties, for such operation on a reciprocal basis
8

by United States amateur radio operators. Other provisions of this chapter
and of subchapter II of chapter 5, and chapter 7, of Title 5 shall not be
applicable to any request or application for or modification, suspension, or
cancellation of any such authorization.

(d) Assignment and transfer of construction permit or station license

No construction permit or station license, or any rights thereunder, shall be
transferred, assigned, or disposed of in any manner, voluntarily or
involuntarily, directly or indirectly, or by transfer of control of any
corporation holding such permit or license, to any person except upon
application to the Commission and upon finding by the Commission that the
public interest, convenience, and necessity will be served thereby. Any such
application shall be disposed of as if the proposed transferee or assignee
were making application under section 308 of this title for the permit or
license in question; but in acting thereon the Commission may not consider
whether the public interest, convenience, and necessity might be served by
the transfer, assignment, or disposal of the permit or license to a person other
than the proposed transferee or assignee.

(e) Administration of regional concentration rules for broadcast stations

(1) In the case of any broadcast station, and any ownership interest therein,
which is excluded from the regional concentration rules by reason of the
savings provision for existing facilities provided by the First Report and
Order adopted March 9, 1977 (docket No. 20548; 42 Fed. Reg. 16145), the
exclusion shall not terminate solely by reason of changes made in the
technical facilities of the station to improve its service.

(2) For purposes of this subsection, the term "regional concentration rules"
means the provisions of sections 73.35, 73.240, and 73.636 of title 47, Code
of Federal Regulations (as in effect June 1, 1983), which prohibit any party
from directly or indirectly owning, operating, or controlling three broadcast
stations in one or several services where any two of such stations are within
100 miles of the third (measured city-to-city), and where there is a primary
service contour overlap of any of the stations.
9

47 U.S.C. 402

(a) Procedure

Any proceeding to enjoin, set aside, annul, or suspend any order of the
Commission under this chapter (except those appealable under subsection
(b) of this section) shall be brought as provided by and in the manner
prescribed in chapter 158 of Title 28.

(b) Right to appeal

Appeals may be taken from decisions and orders of the Commission to the
United States Court of Appeals for the District of Columbia in any of the
following cases:

(1) By any applicant for a construction permit or station license, whose
application is denied by the Commission.

(2) By any applicant for the renewal or modification of any such instrument
of authorization whose application is denied by the Commission.

(3) By any party to an application for authority to transfer, assign, or dispose
of any such instrument of authorization, or any rights thereunder, whose
application is denied by the Commission.

(4) By any applicant for the permit required by section 325 of this title
whose application has been denied by the Commission, or by any permittee
under said section whose permit has been revoked by the Commission.

(5) By the holder of any construction permit or station license which has
been modified or revoked by the Commission.

(6) By any other person who is aggrieved or whose interests are adversely
affected by any order of the Commission granting or denying any
application described in paragraphs (1), (2), (3), (4), and (9) of this
subsection.

(7) By any person upon whom an order to cease and desist has been served
under section 312 of this title.

10

(8) By any radio operator whose license has been suspended by the
Commission.

(9) By any applicant for authority to provide interLATA services under
section 271 of this title whose application is denied by the Commission.

(10) By any person who is aggrieved or whose interests are adversely
affected by a determination made by the Commission under section
618(a)(3) of this title.

(c) Filing notice of appeal; contents; jurisdiction; temporary orders

Such appeal shall be taken by filing a notice of appeal with the court within
thirty days from the date upon which public notice is given of the decision or
order complained of. Such notice of appeal shall contain a concise statement
of the nature of the proceedings as to which the appeal is taken; a concise
statement of the reasons on which the appellant intends to rely, separately
stated and numbered; and proof of service of a true copy of said notice and
statement upon the Commission. Upon filing of such notice, the court shall
have jurisdiction of the proceedings and of the questions determined therein
and shall have power, by order, directed to the Commission or any other
party to the appeal, to grant such temporary relief as it may deem just and
proper. Orders granting temporary relief may be either affirmative or
negative in their scope and application so as to permit either the maintenance
of the status quo in the matter in which the appeal is taken or the restoration
of a position or status terminated or adversely affected by the order appealed
from and shall, unless otherwise ordered by the court, be effective pending
hearing and determination of said appeal and compliance by the
Commission with the final judgment of the court rendered in said appeal.

(d) Notice to interested parties; filing of record

Upon the filing of any such notice of appeal the appellant shall, not later
than five days after the filing of such notice, notify each person shown by
the records of the Commission to be interested in said appeal of the filing
and pendency of the same. The Commission shall file with the court the
record upon which the order complained of was entered, as provided in
section 2112 of Title 28.

(e) Intervention
11


Within thirty days after the filing of any such appeal any interested person
may intervene and participate in the proceedings had upon said appeal by
filing with the court a notice of intention to intervene and a verified
statement showing the nature of the interest of such party, together with
proof of service of true copies of said notice and statement, both upon
appellant and upon the Commission. Any person who would be aggrieved or
whose interest would be adversely affected by a reversal or modification of
the order of the Commission complained of shall be considered an interested
party.

(f) Records and briefs

The record and briefs upon which any such appeal shall be heard and
determined by the court shall contain such information and material, and
shall be prepared within such time and in such manner as the court may by
rule prescribe.

(g) Time of hearing; procedure

The court shall hear and determine the appeal upon the record before it in
the manner prescribed by section 706 of Title 5.

(h) Remand

In the event that the court shall render a decision and enter an order
reversing the order of the Commission, it shall remand the case to the
Commission to carry out the judgment of the court and it shall be the duty of
the Commission, in the absence of the proceedings to review such judgment,
to forthwith give effect thereto, and unless otherwise ordered by the court, to
do so upon the basis of the proceedings already had and the record upon
which said appeal was heard and determined.

(i) Judgment for costs

The court may, in its discretion, enter judgment for costs in favor of or
against an appellant, or other interested parties intervening in said appeal,
but not against the Commission, depending upon the nature of the issues
involved upon said appeal and the outcome thereof.

12

(j) Finality of decision; review by Supreme Court

The court's judgment shall be final, subject, however, to review by the
Supreme Court of the United States upon writ of certiorari on petition
therefor under section 1254 of Title 28, by the appellant, by the
Commission, or by any interested party intervening in the appeal, or by
certification by the court pursuant to the provisions of that section.

13

47 U.S.C. 405

(a) After an order, decision, report, or action has been made or taken in any
proceeding by the Commission, or by any designated authority within the
Commission pursuant to a delegation under section 155(c)(1) of this title,
any party thereto, or any other person aggrieved or whose interests are
adversely affected thereby, may petition for reconsideration only to the
authority making or taking the order, decision, report, or action; and it shall
be lawful for such authority, whether it be the Commission or other authority
designated under section 155(c)(1) of this title, in its discretion, to grant such
a reconsideration if sufficient reason therefor be made to appear. A petition
for reconsideration must be filed within thirty days from the date upon
which public notice is given of the order, decision, report, or action
complained of. No such application shall excuse any person from complying
with or obeying any order, decision, report, or action of the Commission, or
operate in any manner to stay or postpone the enforcement thereof, without
the special order of the Commission. The filing of a petition for
reconsideration shall not be a condition precedent to judicial review of any
such order, decision, report, or action, except where the party seeking such
review (1) was not a party to the proceedings resulting in such order,
decision, report, or action, or (2) relies on questions of fact or law upon
which the Commission, or designated authority within the Commission, has
been afforded no opportunity to pass. The Commission, or designated
authority within the Commission, shall enter an order, with a concise
statement of the reasons therefor, denying a petition for reconsideration or
granting such petition, in whole or in part, and ordering such further
proceedings as may be appropriate: Provided, That in any case where such
petition relates to an instrument of authorization granted without a hearing,
the Commission, or designated authority within the Commission, shall take
such action within ninety days of the filing of such petition.
Reconsiderations shall be governed by such general rules as the Commission
may establish, except that no evidence other than newly discovered
evidence, evidence which has become available only since the original
taking of evidence, or evidence which the Commission or designated
authority within the Commission believes should have been taken in the
original proceeding shall be taken on any reconsideration. The time within
which a petition for review must be filed in a proceeding to which section
402(a) of this title applies, or within which an appeal must be taken under
section 402(b) of this title in any case, shall be computed from the date upon
14

which the Commission gives public notice of the order, decision, report, or
action complained of.

(b)(1) Within 90 days after receiving a petition for reconsideration of an
order concluding a hearing under section 204(a) of this title or concluding an
investigation under section 208(b) of this title, the Commission shall issue
an order granting or denying such petition.

(2) Any order issued under paragraph (1) shall be a final order and may be
appealed under section 402(a) of this title.

15

47 C.F.R. 0.131

Marine VHF public coast stations, including AMTS coast stations, may
provide service to stations on land in accordance with the following:

(a) The public coast station licensee must provide each associated land
station with a letter, which shall be presented to authorized FCC
representatives upon request, acknowledging that the land station may
operate under the authority of the associated public coast station's license:

(b) Each public coast station serving stations on land must afford priority to
marine-originating communications through any appropriate electrical or
mechanical means.

(c) Land station identification shall consist of the associated public coast
station's call sign, followed by a unique numeric or alphabetic unit identifier;

(d) Radio equipment used on land must be certified for use under part 22,
part 80, or part 90 of this chapter. Such equipment must operate only on the
public correspondence channels authorized for use by the associated public
coast station;

(e) Transmitter power shall be in accordance with the limits set in 80.215
for ship stations and antenna height shall be limited to 6.1 meters (20 feet)
above ground level;

(f) Land stations may only communicate with public coast stations and must
remain within radio range of associated public coast stations; and,

(g) The land station must cease operation immediately upon written notice
by the Commission to the associated public coast station that the land station
is causing harmful interference to marine communications.
16

47 C.F.R. 0.331

Authority delegated.

The Chief, Wireless Telecommunications Bureau, is hereby delegated
authority to perform all functions of the Bureau, described in 0.131,
subject to the exceptions and limitations in paragraphs (a) through (d) of this
section, and also the functions described in paragraph (e) of this section.

(a) Authority concerning applications.

(1) The Chief, Wireless Telecommunications Bureau shall not have
authority to act on any radio applications that are in hearing status.

(2) The Chief, Wireless Telecommunications Bureau shall not have
authority to act on any complaints, petitions or requests, whether or not
accompanied by an application, when such complaints, petitions or requests
present new or novel questions of law or policy which cannot be resolved
under outstanding Commission precedents and guidelines.

(b) Authority concerning forfeitures and penalties. The Chief, Wireless
Telecommunications Bureau, shall not have authority to impose, reduce, or
cancel forfeitures pursuant to the Communications Act of 1934, as amended,
and imposed under regulations in this Chapter in amounts of more than
$80,000 for commercial radio providers and $20,000 for private radio
providers. Payments for bid withdrawal, default or to prevent unjust
enrichment that are imposed pursuant to Section 309(j) of the
Communications Act of 1934, as amended, and regulations in this Chapter
implementing Section 309(j) governing auction authority, are excluded from
this restriction.

(c) Authority concerning applications for review. The Chief, Wireless
Telecommunications Bureau shall not have authority to act upon any
applications for review of actions taken by the Chief, Wireless
Telecommunications Bureau pursuant to any delegated authority, except that
the Chief may dismiss any such application that does not comply with the
filing requirements of 1.115 (d) and (f) of this chapter.

(d) Authority concerning rulemaking proceedings. The Chief, Wireless
Telecommunications Bureau shall not have the authority to act upon notices
17

of proposed rulemaking and inquiry, final orders in rulemaking proceedings
and inquiry proceedings, and reports arising from any of the foregoing
except such orders involving ministerial conforming amendments to rule
parts, or orders conforming any of the applicable rules to formally adopted
international conventions or agreements where novel questions of fact, law,
or policy are not involved. In addition, revisions to the airport terminal use
list in 90.35(c)(61) of this chapter and revisions to the Government
Radiolocation list in 90.371(b) of this chapter need not be referred to the
Commission. Adoption of certain technical standards applicable to hearing
aid compatibility under 20.19 of this chapter made together with the Chief
of the Office of Engineering and Technology, as specified in 20.19(k) of
this chapter, also need not be referred to the Commission. Also, the addition
of new Marine VHF frequency coordination committee(s) to 80.514 of this
chapter need not be referred to the Commission if they do not involve novel
questions of fact, policy or law, as well as requests by the United States
Coast Guard to:

(1) Designate radio protection areas for mandatory Vessel Traffic Services
(VTS) and establish marine channels as VTS frequencies for these areas; or

(2) Designate regions for shared commercial and non-commercial vessel use
of VHF marine frequencies.

(3) Designate by footnote to frequency table in 80.373(f) of this chapter
marine VHF frequencies are available for intership port operations
communications in defined port areas.

(e) The Chief of the Wireless Telecommunications Bureau is delegated
authority jointly with the Chief of the Office of Engineering and Technology
to administer provisions of 15.713(h)(8) of this chapter pertaining to the
registration of event sites where large numbers of wireless microphones that
operate on frequencies specified in 74.802 of this chapter are used.
18

47 C.F.R. 1.102

Effective dates of actions taken pursuant to delegated authority.

(a) Final actions following review of an initial decision.

(1) Final decisions of a commissioner, or panel of commissioners following
review of an initial decision shall be effective 40 days after public release of
the full text of such final decision.

(2) If a petition for reconsideration of such final decision is filed, the effect
of the decision is stayed until 40 days after release of the final order
disposing of the petition.

(3) If an application for review of such final decision is filed, or if the
Commission on its own motion orders the record of the proceeding before it
for review, the effect of the decision is stayed until the Commission's review
of the proceeding has been completed.

(b) Non-hearing and interlocutory actions.

(1) Non-hearing or interlocutory actions taken pursuant to delegated
authority shall, unless otherwise ordered by the designated authority, be
effective upon release of the document containing the full text of such
action, or in the event such a document is not released, upon release of a
public notice announcing the action in question.

(2) If a petition for reconsideration of a non-hearing action is filed, the
designated authority may in its discretion stay the effect of its action pending
disposition of the petition for reconsideration. Petitions for reconsideration
of interlocutory actions will not be entertained.

(3) If an application for review of a non-hearing or interlocutory action is
filed, or if the Commission reviews the action on its own motion, the
Commission may in its discretion stay the effect of any such action until its
review of the matters at issue has been completed.
19

47 C.F.R. 1.103

Effective dates of Commission actions; finality of Commission actions.

(a) Unless otherwise specified by law or Commission rule (e.g. 1.102 and
1.427), the effective date of any Commission action shall be the date of
public notice of such action as that latter date is defined in 1.4(b) of these
rules: Provided, That the Commission may, on its own motion or on motion
by any party, designate an effective date that is either earlier or later in time
than the date of public notice of such action. The designation of an earlier or
later effective date shall have no effect on any pleading periods.

(b) Notwithstanding any determinations made under paragraph (a) of this
section, Commission action shall be deemed final, for purposes of seeking
reconsideration at the Commission or judicial review, on the date of public
notice as defined in 1.4(b) of these rules.

20

47 C.F.R. 1.933

Public Notices.

(a) Generally. Periodically, the Commission issues Public Notices in the
Wireless Radio Services listing information of public significance.
Categories of Public Notice listings are as follows:

(1) Accepted for filing. Acceptance for filing of applications and major
amendments thereto.

(2) Actions. Commission actions on pending applications previously listed
as accepted for filing.

(3) Environmental considerations. Special environmental considerations as
required by Part 1 of this chapter.

(4) Informative listings. Information that the Commission, in its discretion,
believes to be of public significance. Such listings do not create any rights to
file petitions to deny or other pleadings.

(b) Accepted for filing public notices. The Commission will issue at regular
intervals public notices listing applications that have been received by the
Commission in a condition acceptable for filing, or which have been
returned to an applicant for correction. Any application that has been listed
in a public notice as acceptable for filing and is (1) subject to a major
amendment, or (2) has been returned as defective or incomplete and
resubmitted to the Commission, shall be listed in a subsequent public notice.
Acceptance for filing shall not preclude the subsequent dismissal of an
application as defective.

(c) Public notice prior to grant. Applications for authorizations, major
modifications, major amendments to applications, and substantial
assignment or transfer applications for the following categories of stations
and services shall be placed on Public Notice as accepted for filing prior to
grant:

(1) Wireless Telecommunications Services.

21

(2) Industrial radiopositioning stations for which frequencies are assigned on
an exclusive basis.

(3) Aeronautical enroute stations.

(4) Aeronautical advisory stations.

(5) Airport control tower stations.

(6) Aeronautical fixed stations.

(7) Alaska public fixed stations.

(8) Broadband Radio Service; and

(9) Educational Broadband Service.

(d) No public notice prior to grant. The following types of applications,
notices, and other filings need not be placed on Public Notice as accepted for
filing prior to grant:

(1) Applications or notifications concerning minor modifications to
authorizations or minor amendments to applications.

(2) Applications or notifications concerning non-substantial (pro forma)
assignments and transfers.

(3) Consent to an involuntary assignment or transfer under section 310(b) of
the Communications Act.

(4) Applications for licenses under section 319(c) of the Communications
Act.

(5) Requests for extensions of time to complete construction of authorized
facilities.

(6) Requests for special temporary authorization not to exceed 30 days
where the applicant does not contemplate the filing of an application for
regular operation, or not to exceed 60 days pending or after the filing of an
application for regular operation.
22


(7) Requests for emergency authorizations under section 308(a) of the
Communications Act.

(8) Any application for temporary authorization under section 101.31(a) of
this chapter.

(9) Any application for authorization in the Private Wireless Services.



23

47 C.F.R. 1.934

Defective applications and dismissal.

(a) Dismissal of applications. The Commission may dismiss any application
in the Wireless Radio Services at the request of the applicant; if the
application is mutually exclusive with another application that is selected or
granted in accordance with the rules in this part; for failure to prosecute or if
the application is found to be defective; if the requested spectrum is not
available; or if the application is untimely filed. Such dismissal may be
"without prejudice," meaning that the Commission may accept from the
applicant another application for the same purpose at a later time, provided
that the application is otherwise timely. Dismissal "with prejudice" means
that the Commission will not accept another application from the applicant
for the same purpose for a period of one year. Unless otherwise provided in
this part, a dismissed application will not be returned to the applicant.

(1) Dismissal at request of applicant. Any applicant may request that its
application be withdrawn or dismissed. A request for the withdrawal of an
application after it has been listed on Public Notice as tentatively accepted
for filing is considered to be a request for dismissal of that application
without prejudice.

(i) If the applicant requests dismissal of its application with prejudice, the
Commission will dismiss that application with prejudice.

(ii) If the applicant requests dismissal of its application without prejudice,
the Commission will dismiss that application without prejudice, unless:

(A) It has been designated for comparative hearing; or

(B) It is an application for which the applicant submitted the winning bid in
a competitive bidding process.

(2) If an applicant who is a winning bidder for a license in a competitive
bidding process requests dismissal of its short-form or long-form
application, the Commission will dismiss that application with prejudice.
The applicant will also be subject to default payments under Subpart Q of
this part.

24

(3) An applicant who requests dismissal of its application after that
application has been designated for comparative hearing may submit a
written petition requesting that the dismissal be without prejudice. Such
petition must demonstrate good cause and be served upon all parties of
record. The Commission may grant such petition and dismiss the application
without prejudice or deny the petition and dismiss the application with
prejudice.

(b) Dismissal of mutually exclusive applications not granted. The
Commission may dismiss mutually exclusive applications:

(1) For which the applicant did not submit the winning bid in a competitive
bidding process; or

(2) That receive comparative consideration in a hearing but are not granted
by order of the presiding officer.

(c) Dismissal for failure to prosecute. The Commission may dismiss
applications for failure of the applicant to prosecute or for failure of the
applicant to respond substantially within a specified time period to official
correspondence or requests for additional information. Such dismissal will
generally be without prejudice if the failure to prosecute or respond occurred
prior to designation of the application for comparative hearing, but may be
with prejudice in cases of non-compliance with 1.945 of this part.
Dismissal will generally be with prejudice if the failure to prosecute or
respond occurred after designation of the application for comparative
hearing. The Commission may dismiss applications with prejudice for
failure of the applicant to comply with requirements related to a competitive
bidding process.

(d) Dismissal as defective. The Commission may dismiss without prejudice
an application that it finds to be defective. An application is defective if:

(1) It is unsigned or incomplete with respect to required answers to
questions, informational showings, or other matters of a formal character;

(2) It requests an authorization that would not comply with one or more of
the Commission's rules and does not contain a request for waiver of these
rule(s), or in the event the Commission denies such a waiver request, does
not contain an alternative proposal that fully complies with the rules;
25


(3) The appropriate filing fee has not been paid; or

(4) The FCC Registration Number (FRN) has not been provided.

(5) It requests a vanity call sign and the applicant has pending another vanity
call sign application with the same receipt date.

(e) Dismissal because spectrum not available. The Commission may dismiss
applications that request spectrum which is unavailable because:

(1) It is not allocated for assignment in the specific service requested;

(2) It was previously assigned to another licensee on an exclusive basis or
cannot be assigned to the applicant without causing harmful interference; or

(3) Reasonable efforts have been made to coordinate the proposed facility
with foreign administrations under applicable international agreements, and
an unfavorable response (harmful interference anticipated) has been
received.

(f) Dismissal as untimely. The Commission may dismiss without prejudice
applications that are premature or late filed, including applications filed prior
to the opening date or after the closing date of a filing window, or after the
cut-off date for a mutually exclusive application filing group.
26

47 C.F.R. 1.948

Assignment of authorization or transfer of control, notification of
consummation.

(a) General. Except as provided in this section, authorizations in the
Wireless Radio Services may be assigned by the licensee to another party,
voluntarily or involuntarily, directly or indirectly, or the control of a licensee
holding such authorizations may be transferred, only upon application to and
approval by the Commission.

(b) Limitations on transfers and assignments.

(1) A change from less than 50% ownership to 50% or more ownership shall
always be considered a transfer of control.

(2) In other situations a controlling interest shall be determined on a case-by-
case basis considering the distribution of ownership, and the relationships of
the owners, including family relationships.

(3) Designated Entities, as defined in 1.2110(a) of this part, must comply
with 1.2110 and 1.2111 of this part when seeking to assign or transfer
control of an authorization.

(4) Stations must meet all applicable requirements regarding transfers and
assignments contained in the rules pertaining to the specific service in which
the station is licensed.

(5) Licenses, permits, and authorizations for stations in the Amateur, Ship,
Commercial Operator and Personal Radio Services (except 218-219 MHz
Service) may not be assigned or transferred, unless otherwise stated.

(c) Application required. In the case of an assignment of authorization or
transfer of control, the assignor must file an application for approval of the
assignment on FCC Form 603. If the assignee or transferee is subject to the
ownership reporting requirements of 1.2112, the assignee or transferee
must also file an updated FCC Form 602 or certify that a current FCC Form
602 is on file.

27

(1) In the case of a non-substantial (pro forma) transfer or assignment
involving a telecommunications carrier, as defined in 153(44) of the
Communications Act, filing of the Form 603 and Commission approval in
advance of the proposed transaction is not required, provided that:

(i) the affected license is not subject to unjust enrichment provisions under
subpart Q of this part;

(ii) the transfer or assignment does not involve a proxy contest; and

(iii) the transferee or assignee provides notice of the transaction by filing
FCC Form 603 within 30 days of its completion, and provides any necessary
updates of ownership information on FCC Form 602.

(2) In the case of an involuntary assignment or transfer, FCC Form 603 must
be filed no later than 30 days after the event causing the involuntary
assignment or transfer.

(d) Notification of consummation. In all Wireless Radio Services, licensees
are required to notify the Commission of consummation of an approved
transfer or assignment using FCC Form 603. The assignee or transferee is
responsible for providing this notification, including the date the transaction
was consummated. For transfers and assignments that require prior
Commission approval, the transaction must be consummated and
notification provided to the Commission within 180 days of public notice of
approval, and notification of consummation must occur no later than 30 days
after actual consummation, unless a request for an extension of time to
consummate is filed on FCC Form 603 prior to the expiration of this 180-
day period. For transfers and assignments that do not require prior
Commission approval, notification of consummation must be provided on
FCC Form 603 no later than 30 days after consummation, along with any
necessary updates of ownership information on FCC Form 602.

(e) Partial assignment of authorization. If the authorization for some, but not
all, of the facilities of a radio station in the Wireless Radio Services is
assigned to another party, voluntarily or involuntarily, such action is a partial
assignment of authorization. To request Commission approval of a partial
assignment of authorization, the assignor must notify the Commission on
FCC Form 603 of the facilities that will be deleted from its authorization
upon consummation of the assignment.
28

(f) Partitioning and disaggregation. Where a licensee proposes to partition or
disaggregate a portion of its authorization to another party, the application
will be treated as a request for partial assignment of authorization. The
assignor must notify the Commission on FCC Form 603 of the geographic
area or spectrum that will be deleted from its authorization upon
consummation of the assignment.

(g) Involuntary transfer and assignment. In the event of the death or legal
disability of a permittee or licensee, a member of a partnership, or a person
directly or indirectly in control of a corporation which is a permittee or
licensee, the Commission shall be notified promptly of the occurrence of
such death or legal disability. Within 30 days after the occurrence of such
death or legal disability (except in the case of a ship or amateur station), an
application shall be filed for consent to involuntary assignment of such
permit or license, or for involuntary transfer of control of such corporation,
to a person or entity legally qualified to succeed to the foregoing interests
under the laws of the place having jurisdiction over the estate involved. The
procedures and forms to be used are the same procedures and forms as those
specified in paragraph (b) of this section. In the case of Ship, aircraft,
Commercial Operator, Amateur, and Personal Radio Services (except for
218-219 MHz Service) involuntary assignment of licenses will not be
granted; such licenses shall be surrendered for cancellation upon the death or
legal disability of the licensee. Amateur station call signs assigned to the
station of a deceased licensee shall be available for reassignment pursuant to
97.19 of this chapter.

(h) Disclosure requirements. Applicants for transfer or assignment of
licenses in auctionable services must comply with the disclosure
requirements of 1.2111 and 1.2112 of this part.

(i) Trafficking. Applications for approval of assignment or transfer may be
reviewed by the Commission to determine if the transaction is for purposes
of trafficking in service authorizations.

(1) Trafficking consists of obtaining or attempting to obtain an authorization
for the principal purpose of speculation or profitable resale of the
authorization rather than for the provision of telecommunication services to
the public or for the licensee's own private use.

29

(2) The Commission may require submission of an affirmative, factual
showing, supported by affidavit of persons with personal knowledge thereof,
to demonstrate that the assignor did not acquire the authorization for the
principal purpose of speculation or profitable resale of the authorization.
This showing may include, for example, a demonstration that the proposed
assignment is due to changed circumstances (described in detail) affecting
the licensee after the grant of the authorization, or that the proposed
assignment is incidental to a sale of other facilities or a merger of interests.

(j) Processing of applications. Applications for assignment of authorization
or transfer of control relating to the Wireless Radio Services will be
processed pursuant either to general approval procedures or the immediate
approval procedures, as discussed herein.

(1) General approval procedures. Applications will be processed pursuant to
the general approval procedures set forth in this paragraph unless they are
submitted and qualify for the immediate approval procedures set forth in
paragraph (j)(2) of this section.

(i) To be accepted for filing under these general approval procedures, the
application must be sufficiently complete and contain all necessary
information and certifications requested on the applicable form, FCC Form
603, including any information and certifications (including those of the
proposed assignee or transferee relating to eligibility, basic qualifications,
and foreign ownership) required by the rules of this chapter and any rules
pertaining to the specific service for which the application is filed, and must
include payment of the required application fee(s) (see 1.1102).

(ii) Once accepted for filing, the application will be placed on public notice,
except no prior public notice will be required for applications involving
authorizations in the Private Wireless Services, as specified in 1.933(d)(9).

(iii) Petitions to deny filed in accordance with section 309(d) of the
Communications Act must comply with the provisions of 1.939, except
that such petitions must be filed no later than 14 days following the date of
the public notice listing the application as accepted for filing.

(iv) No later than 21 days following the date of the public notice listing an
application as accepted for filing, the Wireless Telecommunications Bureau
(Bureau) will affirmatively consent to the application, deny the application,
30

or determine to subject the application to further review. For applications for
which no prior public notice is required, the Bureau will affirmatively
consent to the application, deny the application, or determine to subject the
application to further review no later than 21 days following the date on
which the application has been filed, if filed electronically, and any required
application fee has been paid (see 1.1102); if filed manually, the Bureau
will affirmatively consent to the application, deny the application, or
determine to subject the application to further review no later than 21 days
after the necessary data in the manually filed application is entered into
ULS.

(v) If the Bureau determines to subject the application to further review, it
will issue a public notice so indicating. Within 90 days following the date of
that public notice, the Bureau will either take action upon the application or
provide public notice that an additional 90-day period for review is needed.

(vi) Consent to the application is not deemed granted until the Bureau
affirmatively acts upon the application.

(vii) Grant of consent to the application will be reflected in a public notice
(see 1.933(a)) promptly issued after the grant.

(viii) If any petition to deny is filed, and the Bureau grants the application,
the Bureau will deny the petition(s) and issue a concise statement of the
reason(s) for denial, disposing of all substantive issues raised in the
petition(s).

(2) Immediate approval procedures. Applications that meet the requirements
of paragraph (j)(2)(i) of this section qualify for the immediate approval
procedures.

(i) To qualify for the immediate approval procedures, the application must
be sufficiently complete, contain all necessary information and certifications
(including those relating to eligibility, basic qualifications, and foreign
ownership), and include payment of the requisite application fee(s), as
required for an application processed under the general approval procedures
set forth in paragraph (j)(1) of this section, and also must establish, through
certifications, that the following additional qualifications are met:

31

(A) The license does not involve spectrum licensed in a Wireless Radio
Service that may be used to provide interconnected mobile voice and/or data
services under the applicable service rules and that would, if assigned or
transferred, create a geographic overlap with spectrum in any licensed
Wireless Radio Service (including the same service) in which the proposed
assignee or transferee already holds a direct or indirect interest of 10% or
more (see 1.2112), either as a licensee or a spectrum lessee, and that could
be used by the assignee or transferee to provide interconnected mobile voice
and/or data services;

(B) The licensee is not a designated entity or entrepreneur subject to unjust
enrichment requirements and/or transfer restrictions under applicable
Commission rules (see 1.2110 and 1.2111, and 24.709, 24.714, and
24.839 of this chapter); and,

(C) The assignment or transfer of control does not require a waiver of, or
declaratory ruling pertaining to, any applicable Commission rules, and there
is no pending issue as to whether the license is subject to revocation,
cancellation, or termination by the Commission.

(ii) Provided that the application establishes that it meets all of the requisite
elements to qualify for these immediate approval procedures, consent to the
assignment or transfer of control will be reflected in ULS. If the application
is filed electronically, consent will be reflected in ULS on the next business
day after the filing of the application; if filed manually, consent will be
reflected in ULS on the next business day after the necessary data in the
manually filed application is entered into ULS. Consent to the application is
not deemed granted until the Bureau affirmatively acts upon the application.

(iii) Grant of consent to the application under these immediate approval
procedures will be reflected in a public notice (see 1.933(a)) promptly
issued after the grant, and is subject to reconsideration (see 1.106(f),
1.108, 1.113).


32

47 C.F.R. 1.1204

Exempt ex parte presentations and proceedings.

(a) Exempt ex parte presentations. The following types of presentations are
exempt from the prohibitions in restricted proceedings ( 1.1208), the
disclosure requirements in permit-but-disclose proceedings ( 1.1206), and
the prohibitions during the Sunshine Agenda period prohibition ( 1.1203):

(1) The presentation is authorized by statute or by the Commission's rules to
be made without service, see, e.g., 1.333(d), or involves the filing of
required forms;

(2) The presentation is made by or to the General Counsel and his or her
staff and concerns judicial review of a matter that has been decided by the
Commission;

(3) The presentation directly relates to an emergency in which the safety of
life is endangered or substantial loss of property is threatened, provided that,
if not otherwise submitted for the record, Commission staff promptly places
the presentation or a summary of the presentation in the record and discloses
it to other parties as appropriate.

(4) The presentation involves a military or foreign affairs function of the
United States or classified security information;

(5) The presentation is to or from an agency or branch of the Federal
Government or its staff and involves a matter over which that agency or
branch and the Commission share jurisdiction provided that, any new factual
information obtained through such a presentation that is relied on by the
Commission in its decision-making process will, if not otherwise submitted
for the record, be disclosed by the Commission no later than at the time of
the release of the Commission's decision;

(6) The presentation is to or from the United States Department of Justice or
Federal Trade Commission and involves a communications matter in a
proceeding which has not been designated for hearing and in which the
relevant agency is not a party or commenter (in an informal rulemaking or
Joint board proceeding) provided that, any new factual information obtained
through such a presentation that is relied on by the Commission in its
33

decision-making process will be disclosed by the Commission no later than
at the time of the release of the Commission's decision;

Note 1 to paragraph (a): Under paragraphs (a)(5) and (a)(6) of this section,
information will be relied on and disclosure will be made only after advance
coordination with the agency involved in order to ensure that the agency
involved retains control over the timing and extent of any disclosure that
may have an impact on that agency's jurisdictional responsibilities. If the
agency involved does not wish such information to be disclosed, the
Commission will not disclose it and will disregard it in its decision-making
process, unless it fits within another exemption not requiring disclosure
(e.g., foreign affairs). The fact that an agency's views are disclosed under
paragraphs (a)(5) and (a)(6) does not preclude further discussions pursuant
to, and in accordance with, the exemption.

(7) The presentation is between Commission staff and an advisory
coordinating committee member with respect to the coordination of
frequency assignments to stations in the private land mobile services or fixed
services as authorized by 47 U.S.C. 332;

(8) The presentation is a written presentation made by a listener or viewer of
a broadcast station who is not a party under 1.1202(d)(1), and the
presentation relates to a pending application that has not been designated for
hearing for a new or modified broadcast station or license, for renewal of a
broadcast station license or for assignment or transfer of control of a
broadcast permit or license;

(9) The presentation is made pursuant to an express or implied promise of
confidentiality to protect an individual from the possibility of reprisal, or
there is a reasonable expectation that disclosure would endanger the life or
physical safety of an individual;

(10) The presentation is requested by (or made with the advance approval
of) the Commission or staff for the clarification or adduction of evidence, or
for resolution of issues, including possible settlement, subject to the
following limitations:

(i) This exemption does not apply to restricted proceedings designated for
hearing;

34

(ii) In restricted proceedings not designated for hearing, any new written
information elicited from such request or a summary of any new oral
information elicited from such request shall promptly be served by the
person making the presentation on the other parties to the proceeding.
Information relating to how a proceeding should or could be settled, as
opposed to new information regarding the merits, shall not be deemed to be
new information for purposes of this section. The Commission or its staff
may waive the service requirement if service would be too burdensome
because the parties are numerous or because the materials relating to such
presentation are voluminous. If the service requirement is waived, copies of
the presentation or summary shall be placed in the record of the proceeding
and the Commission or its staff shall issue a public notice which states that
copies of the presentation or summary are available for inspection. The
Commission or its staff may determine that service or public notice would
interfere with the effective conduct of an investigation and dispense with the
service and public notice requirements;

(iii) If the presentation is made in a proceeding subject to permit-but-
disclose requirements, disclosure of any new written information elicited
from such request or a summary of any new oral information elicited from
such request must be made in accordance with the requirements of
1.1206(b), provided, however, that the Commission or its staff may
determine that disclosure would interfere with the effective conduct of an
investigation and dispense with the disclosure requirement. As in paragraph
(a)(10)(ii) of this section, information relating to how a proceeding should or
could be settled, as opposed to new information regarding the merits, shall
not be deemed to be new information for purposes of this section;
Note 2 to paragraph (a): If the Commission or its staff dispenses with the
service or notice requirement to avoid interference with an investigation, a
determination will be made in the discretion of the Commission or its staff
as to when and how disclosure should be made if necessary. See
Amendment of Subpart H, Part I, 2 FCC Rcd 6053, 6054 1014 (1987).

(iv) If the presentation is made in a proceeding subject to the Sunshine
period prohibition, disclosure must be made in accordance with the
requirements of 1.1206(b) or by other adequate means of notice that the
Commission deems appropriate;

(v) In situations where new information regarding the merits is disclosed
during settlement discussions, and the Commission or staff intends that the
35

product of the settlement discussions will be disclosed to the other parties or
the public for comment before any action is taken, the Commission or staff
in its discretion may defer disclosure of such new information until comment
is sought on the settlement proposal or the settlement discussions are
terminated.

(11) The presentation is an oral presentation in a restricted proceeding not
designated for hearing requesting action by a particular date or giving
reasons that a proceeding should be expedited other than the need to avoid
administrative delay. A detailed summary of the presentation shall promptly
be filed in the record and served by the person making the presentation on
the other parties to the proceeding, who may respond in support or
opposition to the request for expedition, including by oral ex parte
presentation, subject to the same service requirement.

(12) The presentation is between Commission staff and:

(i) The administrator of the interstate telecommunications relay services
fund relating to administration of the telecommunications relay services fund
pursuant to 47 U.S.C. 225;

(ii) The North American Numbering Plan Administrator or the North
American Numbering Plan Billing and Collection Agent relating to the
administration of the North American Numbering Plan pursuant to 47 U.S.C.
251(e);

(iii) The Universal Service Administrative Company relating to the
administration of universal service support mechanisms pursuant to 47
U.S.C. 254; or

(iv) The Number Portability Administrator relating to the administration of
local number portability pursuant to 47 U.S.C. 251(b)(2) and (e), provided
that the relevant administrator has not filed comments or otherwise
participated as a party in the proceeding;

(vi) The Pooling Administrator relating to the administration of thousands-
block number pooling pursuant to 47 U.S.C. 251(e).

(b) Exempt proceedings. Unless otherwise provided by the Commission or
the staff pursuant to 1.1200(a), ex parte presentations to or from
36

Commission decision-making personnel are permissible and need not be
disclosed with respect to the following proceedings, which are referred to as
"exempt" proceedings:

(1) A notice of inquiry proceeding;

(2) A petition for rulemaking, except for a petition requesting the allotment
of a broadcast channel (see also 1.1206(a)(1)), or other request that the
Commission modify its rules, issue a policy statement or issue an
interpretive rule, or establish a Joint Board;

(3) A tariff proceeding (including directly associated waiver requests or
requests for special permission) prior to it being set for investigation (see
also 1.1206(a)(4));

(4) A proceeding relating to prescription of common carrier depreciation
rates under section 220(b) of the Communications Act prior to release of a
public notice of specific proposed depreciation rates (see also
1.1206(a)(9));

(5) An informal complaint proceeding under 47 U.S.C. 208 and 1.717 of
this chapter or 47 U.S.C. 255 and either 6.17 or 7.17 of this chapter; and

(6) A complaint against a cable operator regarding its rates that is not filed
on the standard complaint form required by 76.951 of this chapter (FCC
Form 329).

Notes 1 to 3 to paragraph (b): [Reserved]

Note 4 to paragraph (b): In the case of petitions for rulemaking that seek
Commission preemption of state or local regulatory authority, the petitioner
must serve the original petition on any state or local government, the actions
of which are specifically cited as a basis for requesting preemption. Service
should be made on those bodies within the state or local governments that
are legally authorized to accept service of legal documents in a civil context.
Such pleadings that are not served will be dismissed without consideration
as a defective pleading and treated as a violation of the ex parte rules unless
the Commission determines that the matter should be entertained by making
it part of the record under 1.1212(d) and the parties are so informed.
37

47 C.F.R. 80.123

Marine VHF public coast stations, including AMTS coast stations, may
provide service to stations on land in accordance with the following:

(a) The public coast station licensee must provide each associated land
station with a letter, which shall be presented to authorized FCC
representatives upon request, acknowledging that the land station may
operate under the authority of the associated public coast station's license:

(b) Each public coast station serving stations on land must afford priority to
marine-originating communications through any appropriate electrical or
mechanical means.

(c) Land station identification shall consist of the associated public coast
station's call sign, followed by a unique numeric or alphabetic unit identifier;

(d) Radio equipment used on land must be certified for use under part 22,
part 80, or part 90 of this chapter. Such equipment must operate only on the
public correspondence channels authorized for use by the associated public
coast station;

(e) Transmitter power shall be in accordance with the limits set in 80.215
for ship stations and antenna height shall be limited to 6.1 meters (20 feet)
above ground level;

(f) Land stations may only communicate with public coast stations and must
remain within radio range of associated public coast stations; and,

(g) The land station must cease operation immediately upon written notice
by the Commission to the associated public coast station that the land station
is causing harmful interference to marine communications.


38













Appendix B:
WTB Dismissal Notices


Federal Communications Commission

Reference Copy

Wireless Telecommunications Bureau

1270 Fairfield Road

Gettysburg, PA 17325-7245

NOTICE OF DISMISSAL

Date: 03/09/2011
Reference No: 5121691
File No.: 0004636664
RadioService : AL
Call Sign:
Market Area:
FAC#:
ATTN: DEBBIE CHAPPELL
LRB RANCHES LLC DBA BRIGGS RANCHES
PO BOX 1417
VICTORIA, TX 77902-1417
Re: LRB RANCHES LLC DBA BRIGGS RANCHES
Your application is in a dismissal status effective 03/08/2011 without prejudice in accordance with Section 1.934 of the
Commission0s Rules for the reason(s) indicated below. If you still wish to be licensed, you must file a new application,
fee, FCC Form 159 for feeable applications, and all required showings. If you currently hold a valid license, you may
continue to operate under the parameters of that authorization.
If you are currently operating under authority provided by the Commission0s Rules based on your submission of the
above referenced application, you must immediately cease operation until such time as you come into compliance with
the Rules.

Certain services are subject to mandatory electronic filing pursuant to Section 1.913.

For all other services, you
may file your application either electronically or manually, but not both. Electronic filing is recommended for the few
radio services where manual filing is permitted. For information on how to file an application electronically, visit the
website at http://wireless.fcc.gov/uls. If you wish to file your application manually, application forms can be obtained
from the FCC0s website at http://www.fcc.gov/formpage.html, by calling the FCC0s Forms Distribution Center
800-418-FORM (800-418-3676), or from FCC0s Fax Information System by dialing (202) 418-0177. For additional
assistance, you may visit the website at http://esupport.fcc.gov. You may also call the FCC at (877) 480-3201 (TTY
717-338-2824). To provide quality service and ensure security, all telephone calls are recorded.
Your application for Notification of Consummation (NT) has been un-granted and has been dismissed. The associated
Assignment application, file number 0004628263, was "un-consented" and placed back into pending status. There were
some issues on the Assignment that needed to be corrected and has been returned on March 8, 2011 requesting that
information. However, a NT cannot sit in pending status while a AA is in pending status, therefore the NT is being
dismissed.
Once the AA application (0004628263)has been amended, resubmitted and re-consented, you will be able to file a
NEW NT (you cannot re-file an application that has been dismissed).
IF you have questions you may contact our ULS Hotline at 1-877-480-3201, select option 2.
Page 1 of 1

FCC 699

October 2008


Federal Communications Commission

Reference Copy

Wireless Telecommunications Bureau

1270 Fairfield Road

Gettysburg, PA 17325-7245

NOTICE OF DISMISSAL

Date: 03/23/2011
Reference No: 5127937
File No.: 0004638774
RadioService : AL
Call Sign:
Market Area:
FAC#:
ATTN: LEGAL DEPARTMENT
INEOS INDUSTRIES US LLC
2600 SOUTH SHORE BOULEVARD
LEAGUE CITY, TX 77573
Re: INEOS INDUSTRIES US LLC
Your application is in a dismissal status effective 03/22/2011 without prejudice in accordance with Section 1.934 of the
Commission0s Rules for the reason(s) indicated below. If you still wish to be licensed, you must file a new application,
fee, FCC Form 159 for feeable applications, and all required showings. If you currently hold a valid license, you may
continue to operate under the parameters of that authorization.
If you are currently operating under authority provided by the Commission0s Rules based on your submission of the
above referenced application, you must immediately cease operation until such time as you come into compliance with
the Rules.

Certain services are subject to mandatory electronic filing pursuant to Section 1.913.

For all other services, you
may file your application either electronically or manually, but not both. Electronic filing is recommended for the few
radio services where manual filing is permitted. For information on how to file an application electronically, visit the
website at http://wireless.fcc.gov/uls. If you wish to file your application manually, application forms can be obtained
from the FCC0s website at http://www.fcc.gov/formpage.html, by calling the FCC0s Forms Distribution Center
800-418-FORM (800-418-3676), or from FCC0s Fax Information System by dialing (202) 418-0177. For additional
assistance, you may visit the website at http://esupport.fcc.gov. You may also call the FCC at (877) 480-3201 (TTY
717-338-2824). To provide quality service and ensure security, all telephone calls are recorded.
Your application is dismissed for the following reason:
The consent of associated TC application file number 0004623349 has been reversed and the application has been
returned to a pending status due to invalid signatures. In view of this, the NT application cannot be acted upon and is
dismissed. If the TC application file number 0004623349 is consented at a later date, a new consummation NT
application must be filed.
Page 1 of 1

FCC 699

October 2008


10-1344

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


Environmentel, LLC, Appellant,

v.

Federal Communications Commission, Appellee.


CERTIFICATE OF SERVICE



I, Maureen K. Flood, hereby certify that on June 1, 2011, I electronically
filed the foregoing Brief for Appellee with the Clerk of the Court for the
United States Court of Appeals for the D.C. Circuit by using the CM/ECF
system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system.


Tamir D. Damari

Nossaman, LLP
1666 K Street, N.W., Suite 500
Washington, D.C. 20006-2803






/s/ Maureen K. Flood


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