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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Global Cellular Communication, Inc. ) Lottery ID No. 049 ) Application for authority ) to construct and operate a ) nationwide, commercial ) 220 MHz SMR System, ) Channels 151-155 ) MEMORANDUM OPINION AND ORDER Adopted: July 29, 1996 Released: September 18, 1996 By the Commission: Introduction and Executive Summary 1. On November 1, 1994, National Communications Group, Capital Communications Group, Columbia Communications Group, Lonesome Dove Communications Group, All- American Communications Partners, and Shiner Bock Group (collectively, "Petitioners") filed an Application of Review challenging the application filed by Global Cellular Communication, Inc. ("Global") for a five-channel, nationwide, commercial 220 MHz Specialized Mobile Radio (SMR) system. Petitioners assert that Global failed to adequately establish its financial qualifications. For the reasons that follow, the Application for Review is denied. Background 2. On March 31, 1993, the Commission conducted a lottery for nationwide 220 MHz SMR licenses. The results of the lottery were released on April 1, 1993. Global was one of four lottery winners, but Petitioners were not among the applicants selected in the lottery. On May 3, 1993, Petitioners filed an informal opposition to Global's application. Pursuant to delegated authority, the former Private Radio Bureau ("Bureau") dismissed Petitioners' objections as untimely filed and lacking in merit. Petitioners filed a petition for reconsideration which was also denied. Petitioners now seek Commission review of the Bureau's decision . 3. Petitioners object to the Bureau's dismissal of their objections to Global's financial qualifications as untimely and lacking in merit. Global asserts in its Opposition to the Application for Review, filed November 1, 1994, that Petitioners are barred from contesting the grant of its application because the Public Notice released on February 16, 1993, listing Global's application for inclusion in the lottery, directed that objections to any applicant's suitability to be a licensee be filed within thirty days of the notice. This Public Notice states in pertinent part: Additionally, pursuant to 47 C.F.R.  1.41, any interested party may file information with the Commission that may reflect on the suitability of an applicant to be a licensee. Only allegations pertaining to applicants later granted tentative selectee status will be investigated and all allegations directed toward a given tentative selectee will be resolved prior to the issuance of a license to that tentative selectee. Corrections to the listing of applicants to be included in the lottery and information relating to the suitability of these applicants must be received by the Commission within 30 days of the publication of this Public Notice in the Federal Register. 4. The Commission published the Public Notice in the Federal Register on February 19, 1993, making all objections due by March 21, 1993. The Public Notice provided for the orderly filing of Section 1.41 objections to any applicant's suitability to be a licensee, giving objecting parties assurance that their objections would be investigated and resolved prior to the grant of any licenses. Petitioners' Section 1.41 objections, filed May 3, 1993, were dismissed as untimely. Petitioners assert that the Public Notice related primarily to the listing of applicants. They assert that the Public Notice did not give sufficient notice that the Commission was requiring objections to financial qualifications to be filed by the deadline listed in the Public Notice. 5. The Bureau also found Petitioners' objections to Global's financial qualifications lacking in merit. Petitioners object to Global's qualification on two bases. First, Petitioners assert that Global failed to establish its financial qualifications because it did not submit a commitment letter containing an original signature. This argument is based on the premise that the Commission appliesall of the common carrier financial qualification standards, including staff and Commission precedent explaining such standards, to this private radio service. They also now assert, for the first time, that the Commission's orders implementing the legislation pertaining to the regulatory treatment of mobile services require the application of common carrier precedent to the 220 MHz SMR service. 6. Second, Petitioners argue that the obligation to provide financing contained in the commitment letter from Jericho State Capital Corp. ("Jericho") is illusory. Jericho included the following language in the commitment letter: The Lender has relied upon these representations and upon the accuracy of the submissions provided by [GCCI] and its Principals to Lender in deciding to issue this commitment, and any misstatement in any of these submissions which Lender in its sole discretion deems material will, at Lender's sole option, void this commitment. Petitioners assert that this language allows the lender to void the commitment at will. Global counters with the argument that the commitment is only voidable after a showing of a material misstatement, and that under New York law the lender's discretion in determining what constitutes a material misstatement is limited to a good faith determination. Discussion 7. Petitioners assert that 47 C.F.R.  1.41 does not provide a deadline for filing informal objections to applications. We agree with Petitioners that Section 1.41 of our rules, does not explicitly require informal requests for Commission action to be filed by a certain time. We note in this specific instance, however, that a filing deadline for informal objections was expressly imposed by the Public Notice. We further note that the Commission must, in certain instances, make and enforce certain procedural requirements in order to keep pace with the rapidly growing and changing telecommunications industry and to perform the tasks delegated to us by Congress. In this connection, we point to the February 16, 1993, Public Notice listing applicants for the nationwide 220 MHz lottery and requiring that any and all objections to their suitability as a licensee be filed within thirty days of publication in the Federal Register. This Public Notice was published in the Federal Register on February 19, 1993. Accordingly, we affirm the Bureau's decision on this issue. Petitioners' Application for Review mistakenly asserts that the specific request for objections against the suitability by a specific date was intended only to assure that the lottery itself had no fundamental procedural flaws. Contrary to this assertion, the purpose of the notice was to facilitate the expeditious processing of objections so that lottery winners might rapidly begin provision of service. We find that the February 19, 1993, Public Notice provided all applicants with ample notice that informal objections relating to the suitability of applicants to be licensees were due within thirty days. 8. We also disagree with Petitioners' assertion that Global's application was deficient. Petitioners assert that Paragraph 20 of the Third Report and Order in GN Docket No. 93-252 implementing the legislation pertaining to the regulatory treatment of mobile services requires that CMRS licensees conform to all common carrier licensing procedures. Global asserts that this argument is improperly raised here for the first time. We agree. Additionally, Petitioners mischaracterize the paragraph they rely on in the Third Report and Order. Paragraph 20 requires only that the common carrier provisions enumerated in Title III of the Communications Act be applied to CMRS providers, such as application forms and procedures, applicant qualifying information, application fees and regulatory fees, public notice and petition to deny procedures, treatment of mutually exclusive applications, use of competitive bidding procedures, amendment of applications and license modification, and conditional and special temporary authority. We note that many of these requirements pertain to the application process and the requisite contents of an application. Because Global's application already was granted when these requirements became effective, we decline to adopt Petitioners' suggestion that Global's pending application should be judged on the basis of these subsequently adopted policies. 9. In this connection, Petitioners' attempt to challenge Global's suitability to be a Commission licensee on the basis of its financial qualifications showing. When we adopted the rules governing nationwide 220 MHz financial qualification statements, our decision referenced, by footnote, the rule describing the firm financial commitment standard applicable in the common carrier context. Petitioners argue that this footnote to the common carrier firm financial commitment standard resulted in the incorporation of an original signature requirement as well. We disagree with the Petitioners' reasoning. We consider the original signature component of the cellular lottery application process to be an ancillary element of the common carrier firm financial commitment standard. In this connection, we believe that absent express notice to all applicants of the Commission of adoption of an original signature rule in the nationwide 200 MHz context, the public interest would not be served by the enforcement of such a policy. Furthermore, because an original signature on a commitment letter is not otherwise required under Subpart T of Part 90, we believe applicants might have justifiably relied on the policy embodied in Section 1.52 of our Rules, which provides that a copy or facsimile of a signature is acceptable, provided that the party filing the facsimile signature retains the originals. 10. In addition, we agree with the Bureau's order below that our decision here does not mean that all common carrier precedent relating to the financial commitment standard is irrelevant. Because the rule in Subpart T of Part 90 setting forth the 220 MHz financial commitment standard parallels a similar standard in Part 22 of our rules, common carrier precedent interpreting analogous Part 22 rules will be pertinent in determining the sufficiency of a financial commitment in the private land mobile radio context. 11. Finally, we conclude that the Jericho commitment letter provides the type of reasonable assurance of the availability of a loan that we are seeking from applicants. There has been no showing that the Jericho financing contract was anything less than a commitment from a financially responsible institution meeting the criteria established in the 220 MHz proceeding. Petitioners assert that we should not take Global and its lender's representations that a firm financial commitment existed at face value, but should weigh it separately. The Petitioners, however, fail to demonstrate that Global's analysis of the state law governing the interpretation of the commitment letter is erroneous. Conclusion 12. For the above reasons, IT IS HEREBY ORDERED THAT the Application for Review filed by National Communications Group, Capital Communications Group, Columbia Communications Group, Lonesome Dove Communications Group, All-American Communications Partners, and Shiner Bock Group on October 17, 1994, IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary