Subject: [NEXTEL-1] 800 MHz Station KGQ445- Assignment Pacific Wireless to Nextel(With Complications) DENIED

From: Marcel <[email-masked]>
Date: Fri, 25 Apr 2003 15:05:44 -0400

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

Pacific Wireless Technologies, Inc.
800 MHz Station KGQ445

Assignment from Pacific Wireless Technologies, Inc. to Nextel of California, Inc.  )
File No. 0000659443

ORDER

   Adopted:  April 23, 2003 Released: April 25, 2003

By the Chief, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau:

I.  INTRODUCTION

1. We have before us two petitions for reconsideration, and a request for stay, filed by
Pacific Wireless Technologies, Inc. (“Pacific Wireless”).   Pacific Wireless seeks
reconsideration of Letter Decisions by the Licensing and Technical Analysis Branch
(“Branch”) of the Commercial Wireless Division, Wireless Telecommunications Bureau, which
reinstated a license to operate conventional industrial/land transportation pool station
KGQ445 (“License”) to Lodi Farming, Inc. (“Lodi”), and set aside an earlier assignment of
the License from Lodi to Pacific Wireless.   For the reasons discussed below, we deny the
Petitions and the Request for Stay.
II.  BACKGROUND

2. On August 8, 1986, Cortopassi Farms, Inc. assigned station license KGQ445 to Lodi.
Call sign KGQ445 was authorized as a community repeater station on Mount Oso in Stanislaus
County, California on frequency 851.8375 MHz.   Diamondback Enterprises, Inc. d/b/a Noack
Pump Co. (‘Noack”) operated a co-channel station under call sign KMA683 for frequency
851.8375 MHz on the same community repeater as Lodi.   On June 25, 1997, Noack assigned
station license KMA683 to Delta.   On October 25, 2000, an FCC Form 601 and accompanying
assignment of authorization form (FCC Form 1046), designating Felix Difuntorum as
signatory for Lodi, was filed with the Commission to assign call sign KGQ445 from Lodi to
Pacific Wireless.   The assignment was granted on April 16, 2001.   Felix Difuntorum is
Vice President of Delta and is not an officer, director, or authorized employee of Lodi.
On July 27, 2001, Pacific Wireless filed an application with the Commission to assign 188
of its SMR licenses to Nextel of California, Inc. (“Nextel”), including call sign
KGQ445.   On September 25, 2001, Lodi sent a letter to the Commission alleging that the
prior assignment of station license KGQ445 to Pacific Wireless was unauthorized and
requesting that the License be reinstated to Lodi.   On November 15, 2001, Pacific
Wireless filed: i) an amended application to delete the License from the pending
application for assignment to Nextel;  and (ii) a new application to assign the License to
Nextel.   On December 4, 2000 and January 8, 2001, Felix Difuntorum wrote to the
Commission confirming his lack of authority to act on Lodi’s behalf, and requested
reinstatement of the License to Lodi.   The Branch subsequently issued the Letter
Decisions, setting aside the prior assignment from Lodi to Pacific Wireless and
reinstating the license to Lodi.   Based on the Letter Decisions, on February 11, 2002,
the Branch also dismissed Pacific Wireless’ pending application to assign the License to
Nextel.   Pacific Wireless subsequently filed the instant Petitions for Reconsideration,
Supplement to Petition for Reconsideration and Request for Stay.

III.  DISCUSSION
3. We affirm the Branch’s decision to reinstate station license KGQ445 to Lodi and set
aside the assignment of the License from Lodi to Pacific Wireless.  It is well established
that an unauthorized assignment is void ab initio, and cannot convey any rights to the
assignee.   We find that the assignment from Lodi to Pacific Wireless was unauthorized,
because Felix Difuntorum had no authority to act as Lodi’s signatory on the assignment of
authorization form filed on October 25, 2000.  Pacific Wireless fails to offer any
evidence or even allege that Mr. Difuntorum had authority to act as signatory for Lodi.
In fact, in his letters to the Commission, Mr. Difuntorum requests that the License be
reinstated to Lodi, because he lacked authority to assign the License.   We therefore
reject Pacific Wireless’ argument that the Branch revoked the License before considering
all the facts and circumstances as required by Commission precedent.

4. We further reject Pacific Wireless’ argument that the Branch failed to provide proper
notice pursuant to section 312(c) of the Communications Act before reinstating the License
to Lodi.   As the Commission stated in Tsooris, if an assignment is “void ab initio,” the
purported assignee is not a Commission recognized licensee, and therefore the provisions
of section 312(c) of the Communications Act do not apply.   We find the cases cited by
Pacific Wireless as authority for its section 312(c) argument inapposite, because those
cases involve proceedings against Commission recognized licensees that acquired their
licenses through authorized Commission processes, not through an unauthorized
assignment.   For example, in S.A. Dawson Associates, the case upon which Pacific Wireless
chiefly relies, the request for reinstatement of a license centered on the issue of the
corporate authority of an admitted employee of the license holder to assign the license.
Under such circumstances, the Commission will investigate to determine whether a
substantial and material question of fact exists that requires the matter under
consideration be designated for hearing or referred to courts of competent jurisdiction.
There is no substantial and material question of fact in the instant case, because it is
uncontroverted that Felix Difuntorum possesses no connection to the licensee, Lodi, and
has admitted his lack of authority to assign the license.

5. We also reject Pacific Wireless’ argument that the Branch did not have the authority to
set aside the assignment to Pacific Wireless because the assignment was administratively
final.  Pacific Wireless argues that it is in the public interest to have Commission
decisions remain final if not timely challenged.   Nonetheless, it is well settled that
misuse of Commission processes can result in the re-opening of a proceeding.   Pacific
Wireless’ reliance on Birach Broadcasting in support of its administrative finality
argument is misplaced because, in that case, the Commission found that its determination
to reissue a broadcast license would not be re-opened unless there had been fraud in the
proceeding or the challenged result was unconscionable.   Here, while the record does not
support a finding of fraud in the assignment process, the filing of an unauthorized
assignment through mistake represents a misuse of the Commission’s processes, and it would
be unconscionable to apply the doctrine of administrative finality to an assignment that
was void ab initio.

6. In addition, we are not persuaded by Pacific Wireless’ argument that the Branch should
not have set aside the assignment, because Pacific Wireless had no knowledge of the
unauthorized assignment.  Lack of knowledge has no bearing on whether the assignment
should be invalidated.   Although Pacific Wireless states that it had no prior knowledge
of the unauthorized assignment, failure to return the parties to their rightful positions
under these circumstances would encourage such conduct, have an injurious effect on the
Commission’s processes, and otherwise be contrary to the public interest.

7. Further, we reject Pacific Wireless’ argument that because this matter involves a
private contractual dispute, the Courts and not the Commission should decide it.   The
Commission generally does not adjudicate private contractual disputes, but instead
attempts to reach a fair accommodation between its exclusive authority over licensing
matters and the authority of State and local courts to decide contractual matters under
State and local law.   However, where there is no legal or factual question that an
unauthorized assignment has taken place, the Commission will act to invalidate the
transaction.   Accordingly, Pacific Wireless’ reliance on Listener’s Guild, where material
factual questions requiring local court resolution did exist, is misplaced.

8. Pacific Wireless additionally seeks reconsideration of the Branch’s decision rejecting
its request that the License be cancelled due to Lodi’s failure to operate the station for
one year or more.   We affirm the Branch’s finding that Pacific Wireless failed to provide
adequate information demonstrating that the License canceled automatically due to Lodi’s
failure to operate the station for one year or more.   Section 90.157 of the Commission's
rules provides that a station license terminates automatically if operations are
permanently discontinued.   The rule section further defines "permanently discontinued" as
any station that has not operated for one year or more.   As evidence of non-operation,
Pacific Wireless offers the declaration of its Chief Executive Officer, Jeffery Fuller,
which states that, after monitoring the channel, Pacific Wireless detected no activity
from April 16, 2001 to December 20, 2001, the period in which Pacific Wireless controlled
the license.   Pacific Wireless also cites statements made by Felix Difuntorum of Delta,
which state that Lodi abandoned its community repeater station and was no longer a
customer when the co-channel station, call sign KMA683, was assigned to Delta in 1997.
The Division found that because Pacific Wireless monitored the station for less than one
year, its certification of non-operation failed to provide a level of proof necessary for
cancellation.   As the Letter Decisions state, Pacific Wireless’ monitoring of the
frequency for less than one year does not serve to substantiate a violation of section
90.157.   Similarly, the statements of Felix Difuntorum, standing alone, do not
conclusively establish Lodi’s permanent discontinuance of its operation of the License.
Specifically, Pacific Wireless seeks to rely on Mr. Difuntorum’s statements that during
the period of Delta’s ownership of the community repeater, Lodi was not a customer.
However, there remain significant questions in the record regarding the ownership of the
facilities stationed on Mount Oso in Stanislaus County, California,  because Pacific
Wireless and Delta maintain that Noack owned the repeater, and Lodi maintains it owned the
repeater.   As such, the statements of Felix Difuntorum, without more, do not conclusively
demonstrate Lodi’s non-operational status for one year or more in violation of the
Commission’s rules.  Moreover, Mr. Difuntorum’s statements, being unsworn and uncertified,
do not satisfy the requirements of section 1.106(d) that findings of fact in petitions for
reconsideration be stated with particularity.

9. Finally, we reject Pacific Wireless’ argument that Lodi’s license cancelled
automatically because it failed to construct and begin operations within one year after
the date of the license grant pursuant to section 90.155.   We make this finding because
Pacific Wireless has not provided any evidence that Lodi failed to construct its
facilities or failed to begin operations within the required one year time period under
the rule.

IV. ORDERING CLAUSE

10. Accordingly, IT IS ORDERED that, pursuant to Section 4(i), 303(r), and 405 of the
Communications Act, as amended, 47 U.S.C. §§ 154(i), 303(r), 405, and Sections 0.331 and
1.106 of the Commission's rules, 47 C.F.R. §§ 0.331, 1.106, the Petitions for
Reconsideration filed by Pacific Wireless Technologies, Inc. on January 17, 2002 and March
7, 2002, the Supplement to Petition for Reconsideration filed on March 7, 2002, and the
Request for Stay filed on January 17, 2002 ARE DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Paul D’Ari, Chief
Policy and Rules Branch
Commercial Wireless Division
Wireless Telecommunications Bureau

 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-233586A1.doc

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