Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Applications of            | *  | FCC File No. 0000334962      |
|                                  | *) |                              |
| INTERACTIVE CONTROL TWO, INC.    | ** | FCC File No. 0000334985      |
|                                  |    |                              |
| WINCOM CORP.                     | *  | FCC File No. 0000334966      |
|                                  | *) |                              |
| U.S. TELEMETRY-NEW BRUNSWICK,    | ** |                              |
| INC.                             |    |                              |
|                                  | *  |                              |
| U.S. TELEMETRY-LANCASTER, INC.   | *) |                              |
|                                  | ** |                              |
| For Consent to the Assignment of |    |                              |
| Licenses for Stations KIVD0063   | *  |                              |
| and KIVD0247 in the\             | *) |                              |
| 218-219 MHz Service              | ** |                              |
|                                  |    |                              |
| and                              | *  |                              |
|                                  | *) |                              |
| INTERACTIVE CONTROL TWO, INC.    | ** |                              |
|                                  |    |                              |
| SYN-TEL LANCASTER, LLC           | *  |                              |
|                                  | *) |                              |
| SYN-TEL NEW BRUNSWICK, LLC       | ** |                              |
|                                  |    |                              |
| For Consent to the Assignment of | *  |                              |
| Licenses for Stations KIVD0063   | *) |                              |
| and KIVD0247 in the\             | ** |                              |
| 218-219 MHz Service              |    |                              |
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+----------------------------------+----+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted: October 26, 2001 Released: October 26, 2001**

By the Deputy Chief, Wireless Telecommunications Bureau:

### INTRODUCTION

1.  We have before us two petitions for reconsideration and
    reinstatement *nunc pro tunc*, one filed jointly by U.S.
    Telemetry-New Brunswick, Inc. and U.S. Telemetry-Lancaster, Inc.
    (U.S. Telemetry) and one filed jointly by Syn-Tel Lancaster, LLC and
    Syn-Tel New Brunswick, LLC (Syn-Tel),[^1] as well as related
    pleadings.[^2] The petitioners seek reconsideration pursuant to
    Section 1.106 of our Rules[^3] of the dismissal by the Licensing and
    Technical Analysis Branch (Branch) of the Public Safety and Private
    Wireless Division of their respective above-captioned
    applications,[^4] and they request the reinstatement of those
    applications *nunc pro tunc*.[^5] Because the petitions raise
    interdependent issues, and the resolution of either petition will
    necessarily affect the resolution of the other, we have consolidated
    these matters and we address both petitions in this *Order on
    Reconsideration*. For the reasons set forth below, we grant both the
    U.S. Telemetry Petition and the Syn-Tel Petition insofar as each
    seeks reversal of the dismissals of the captioned applications, and
    we reinstate the applications *nunc pro tunc*. In addition, we grant
    the U.S. Telemetry applications[^6] and dismiss the Syn-Tel
    applications[^7] pursuant to Section 1.934(d)(2) of the Rules.[^8]

### BACKGROUND

2.  Interactive Control Two, Inc. (Interactive) acquired the subject
    licenses as the successful high bidder in the Federal Communications
    Commission's (FCC or Commission) July 1994 auction of Interactive
    Video and Data Service (IVDS) licenses.[^9] In 1995, Interactive
    entered into an agreement with Wincom Corporation (Wincom).[^10]
    Although the agreement contemplated that Interactive would assign
    the subject licenses to Wincom,[^11] and Interactive executed FCC
    Form 1046 applications seeking Commission approval of such
    assignments,[^12] Wincom filed for protection under Chapter 11 of
    the Bankruptcy Code before any assignment applications were filed.
    The case was subsequently converted to a Chapter 7 liquidation, and
    Mr. Patrick Malloy III was appointed the Trustee.[^13]

3.  On October 7, 1999, U.S. Telemetry submitted a formal offer to
    purchase the Wincom bankruptcy estate's interest in sixty-six
    218-219 MHz licenses, including the subject licenses.[^14] An
    evidentiary hearing on the Trustee's motions to sell the estate's
    interest in the 218-219 MHz licenses to U.S. Telemetry occurred on
    December 16, 1999.[^15] Although Interactive did not attend that
    hearing, a number of other 218-219 MHz licensees that had entered
    into similar asset purchase agreements with Wincom did attend,[^16]
    and they objected to the proposed disposition of the 218-219 MHz
    licenses covered by those agreements, claiming that Wincom had
    defaulted in paying for the licenses because the preferred stock
    with which Wincom had purchased the licenses was not as valuable as
    represented and/or the various stock exchanges were not
    completed.[^17]

4.  On January 10, 2000, the United States Bankruptcy Court for the
    Northern District of Oklahoma (Bankruptcy Court) issued a Memorandum
    Opinion holding that, pursuant to contract law, Wincom had acquired
    an interest in the licenses, including the right to apply to the FCC
    for approval of the assignment of the licenses.[^18] The Bankruptcy
    Court also held that under these circumstances, the Trustee would be
    permitted to apply to the FCC for approval of the assignment of the
    instant licenses.[^19] At the same time, the Bankruptcy Court made
    clear that its order was not intended to infringe in any way on the
    FCC's authority over assignments of FCC licenses.[^20] In subsequent
    orders, the Bankruptcy Court again emphasized that its determination
    of the contractual rights among the parties and its application of
    bankruptcy law to this case:

> shall in no way be construed as this Court's having made any finding,
> determination, conclusion of law or decision as to the status, grant
> or assignment of any of the licenses or licensee \[sic\] or any other
> parties' rights or obligations under (1) those licenses, (2) the
> Communications Act of 1934, as amended, and (3) any applicable FCC
> rules, regulations and/or orders; nor shall this Order have any effect
> on the FCC's exclusive jurisdiction to determine whether grant of
> applications for assignment of the licenses ... serves the public
> interest, convenience, or necessity, 47 U.S.C. §§ 301, 309, and 310(d)
> ...."[^21]

It further specified that the purchasers must assume all outstanding
indebtedness owing to the FCC with respect to the licenses.[^22] It
authorized and instructed the Trustee "to immediately prepare and file
with the FCC any and all forms and documents ... required to assign and
transfer the title to the licenses \[to U.S. Telemetry\] and to seek the
approval of the FCC of said assignment and transfer ...."[^23]

5.  The applications to assign the subject licenses to U.S. Telemetry
    were filed in February 2000. The Trustee submitted contemporaneously
    three sets of applications to request FCC approval of the
    transaction. First, the Trustee filed FCC Form 574 and FCC Form
    1046[^24] to request approval for the involuntary assignment of the
    licenses by operation of law from Interactive to Wincom (Step 1
    Application). Second, the Trustee filed FCC Form 703 to request
    approval for the transfer of control of Wincom by operation of law
    to the Trustee (Step 2 Application).[^25] Third, the Trustee filed
    FCC Form 574 and FCC Form 1046 to request approval for the voluntary
    assignment of the licenses from the Trustee to U.S. Telemetry (Step
    3 Application).[^26] The filings were structured in this manner,
    U.S. Telemetry explained, to permit the Commission's licensing
    records to reflect accurately the three discrete stages of the
    overall transaction.[^27] The applications all bear the signature of
    Patrick J. Malloy III as Trustee. Of most significance to this case,
    Mr. Malloy signed the Step 1 Application on behalf of the assignor,
    Interactive.

6.  On May 23, 2000, while the U.S. Telemetry applications remained
    pending, the applications to assign the same licenses from
    Interactive to Syn-Tel were filed. These Syn-Tel applications were
    signed on behalf of the assignor by Martin Quinn, President of
    Interactive, who is listed in the Commission's Universal Licensing
    System database as the contact for the licensee of record.

7.  On January 23, 2001, both the U.S. Telemetry applications and the
    Syn-Tel applications to assign the licenses for stations KIVD0063
    and KIVD0247 were dismissed by the Branch, and public notice of the
    dismissals was provided on January 31, 2001.[^28] On February 16,
    2001, the Branch issued the Dismissal Letters, informing the parties
    that their applications were dismissed in accordance with Section
    1.934 of the Rules because of the apparent conflict between them.
    "Since the Commission has received two apparently valid applications
    for assignment of this call sign to different entities," the Branch
    stated in each case, "your application can not be processed."[^29]
    Both U.S. Telemetry and Syn-Tel submitted timely-filed applications
    for reconsideration and reinstatement *nunc pro tunc*.

### DISCUSSION

8.  U.S. Telemetry and Syn-Tel both contend that Section 1.934 provides
    no basis for the dismissal of their applications.[^30] U.S.
    Telemetry further argues that the Branch erred in dismissing its
    applications because the Branch did not contemporaneously specify
    the reasons for the dismissal,[^31] and because the dismissal runs
    afoul of the directive in Section 310(d) of the Communications Act
    (Act)[^32] that, in reviewing an assignment application, the
    Commission may not consider the qualifications of a party other than
    the proposed assignee.[^33] Although conceding that Syn-Tel's
    applications are not subject to dismissal under Section 1.934 any
    more than are its own, U.S. Telemetry says that Syn-Tel's
    applications are nonetheless subject to dismissal as inconsistent or
    conflicting applications under Section 1.937(d).[^34] Syn-Tel
    argues, on the other hand, that neither set of applications is
    subject to dismissal at this stage, and that the applications must
    therefore be designated for hearing.[^35]

9.  U.S. Telemetry and Syn-Tel also address the merits of their
    applications. Citing the U.S. Court of Appeals decision in
    *LaRose v. FCC*,[^36] as well as other court and FCC decisions*,*
    U.S. Telemetry asserts that its applications should be processed,
    and Syn-Tel's applications dismissed or denied, because of the
    Commission's duty to reconcile its licensing decisions with those of
    bankruptcy courts to the greatest extent compatible with its
    statutory public interest responsibilities.[^37] Syn-Tel argues, on
    the other hand, that granting U.S. Telemetry's applications on the
    basis of the Bankruptcy Court's decision would give undue weight to
    that decision.[^38] According to Syn-Tel, the U.S. Telemetry
    applications are not valid because (1) there is no legal basis for
    the Step 1 involuntary assignment applications; (2) Interactive and
    Wincom had consummated or attempted to consummate an assignment
    without Commission authorization; (3) U.S. Telemetry is itself
    guilty of wrongdoing in connection with this matter; and (4) Wincom
    is not financially qualified to be a licensee.[^39] We address these
    arguments in turn.

    A.  *Validity of dismissal pursuant to Section 1.934(a).*

10. None of the grounds for dismissal set forth in Section 1.934(a)
    apply to the case at hand, U.S. Telemetry asserts.[^40] Syn-Tel
    concurs that dismissal of the applications cannot be predicated on
    Section 1.934.[^41] Syn-Tel adds, moreover, that nowhere in the
    Commission's Rules is there a provision permitting "the perfunctory
    dismissal of two 'apparently valid' assignment applications" for
    wireless licenses.[^42]

11. We agree with U.S. Telemetry and Syn-Tel that their applications
    were not subject to dismissal under Section 1.934 of our Rules.
    Section 1.934(a) specifies five discrete grounds for dismissing
    applications: at the request of the applicant; if the application is
    mutually exclusive with another application that is selected or
    granted in accordance with the Part 1 rules; 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.[^43] The Branch's dismissals could not be predicated
    on any of these grounds. Although this may be that exceedingly rare
    instance in which two assignment applications before the Commission
    may be deemed to be mutually exclusive, neither was selected or
    granted, and this precluded the dismissal of either application
    under Section 1.934 for reasons of mutual exclusivity. Accordingly,
    we grant the U.S. Telemetry and Syn-Tel Petitions insofar as they
    seek reconsideration of the dismissal of their respective
    applications, and we direct the Branch to reinstate the applications
    *nunc pro tunc*.[^44]

*B. Propriety of dismissing Syn-Tel applications pursuant to Section
1.937.*

12. According to U.S. Telemetry, the Syn-Tel applications should be
    dismissed pursuant to Section 1.937(d), which provides that, during
    the pendency of an application, "any subsequent inconsistent or
    conflicting application submitted by, on behalf of, or for the
    benefit of the same applicant, its successor or assignee will not be
    accepted for filing."[^45] U.S. Telemetry argues that since the
    Syn-Tel applications are inconsistent with the previously filed U.S.
    Telemetry applications, they are subject to dismissal under Section
    1.937(d).[^46] Syn-Tel disputes that Section 1.937(d) is a basis for
    dismissing its applications. Section 1.937, Syn-Tel says, is
    intended to prevent repetitious and vexatious filings by parties who
    have had earlier applications dismissed, implementing the legal
    principle *res judicata*.[^47] Thus, it does not apply in these
    circumstances, Syn-Tel continues, because when it filed its
    applications, there were no pending or conflicting applications
    "submitted by, on behalf of, or for the benefit" of Interactive. For
    the Commission to place its imprimatur on U.S. Telemetry's
    construction of Section 1.937(d), Syn-Tel argues, would convert the
    provision, untenably, into a first-to-file rule.[^48]

13. We disagree with U.S. Telemetry that the Syn-Tel applications are
    subject to dismissal under Section 1.937(d) of the Rules. To be
    deemed repetitive of, or in conflict with, a pending application
    under this provision, the later-filed application(s) must be
    "submitted by, on behalf of, or for the benefit of the same
    applicant \[or\] its successor or assignee."[^49] Here, although
    Interactive is nominally a proposed assignor in both sets of
    applications, the true parties in interest clearly are not the same,
    and it would elevate form over substance to view the Syn-Tel
    applications as having been filed by, on behalf of, or for the
    benefit of the parties in interest to the U.S. Telemetry
    applications. The cases cited by U.S. Telemetry to support the
    applicability of Section 1.937(d) to the Syn-Tel applications fail
    to carry its argument. *Big Wyoming Broadcasting Corp*.[^50] and
    *Jersey Shore Broadcasting Corp. v. FCC*[^51] are both inapposite
    because the inconsistent applications dismissed in those cases,
    unlike the Syn-Tel applications in the instant case, were filed by
    precisely the same parties in interest who had filed the earlier
    applications with which they conflicted.

*C. Need for a hearing.*

14. Syn-Tel argues that the Commission must designate the U.S. Telemetry
    and Syn-Tel applications for hearing.[^52] According to Syn-Tel,
    where the Commission is unable to make a determination on the
    existing record as to which of two or more competing applications
    should be granted, the Commission is required under Section 309(e)
    and Section 310(d) of the Act[^53] to hold a hearing to resolve the
    matter. Syn-Tel cites *Citizens Committee to Save WEFM v. FCC*[^54]
    for the proposition that a hearing is mandated by Section 309(e)
    whenever "the Commission 'for any reason' is unable, on the basis of
    the application, pleadings and officially noticeable materials, to
    make the requisite finding that the public interest would be
    served."[^55]

15. We disagree with Syn-Tel that the hearing requirements of the Act
    provide the appropriate avenue for resolution of this dispute. We
    can discern no "substantial and material questions of fact" that
    require resolution in a hearing.[^56] We defer to the factual
    findings of the Bankruptcy Court insofar as they provide the factual
    underpinnings of the court's application of contract law to the
    dispute before it in the *January 10 Opinion*.[^57] We therefore
    decline Syn-Tel's invitation to relitigate factual matters
    concerning, for example, the existence, legitimacy, and nature of
    any contract between Interactive and Wincom. The only other disputed
    factual matter pertains to whether an unauthorized assignment of the
    subject licenses occurred. As discussed below, we find that those
    allegations do not warrant a hearing, and that this licensing
    dispute can indeed be resolved on the basis of the applications and
    pleadings.

*D. Allegations that an unauthorized assignment of the licenses
occurred.*

16. Syn-Tel says the U.S. Telemetry applications are not valid
    applications because the transaction between Interactive and Wincom
    resulted in a consummated assignment without the requisite prior
    approval of the Commission.[^58] It points to the statement by the
    Bankruptcy Court that "*all conditions* to the Agreements \[between
    the original 218-219 MHz licensees and Wincom\] were resolved to the
    satisfaction of the licensee or were otherwise *waived*; that the
    consideration *had been exchanged*; and that the assignments of
    licenses *had occurred*."[^59] Syn-Tel argues that these
    circumstances, and particularly the release by the escrow agent of
    the stock certificate representing Interactive's ownership interest
    in Wincom preferred stock, evince an unauthorized assignment or at
    least an attempt to complete an unauthorized assignment. Syn-Tel
    contends that the Commission "has expressly stated that releasing
    documents and funds from escrow prior to approval is a violation of
    section 310(d) of the Act,"[^60] citing *Oyate, Inc*.[^61] Syn-Tel
    adds that, under Commission precedent, an assignment is considered
    to be consummated on the date reflected in the documents associated
    with the transaction, citing *In re Kevin Hackler*[^62] as an
    example.[^63] Syn-Tel also argues that where documents have not been
    executed, the Commission has found that a transaction was
    consummated when consideration and ownership of the license had
    passed.[^64] Syn-Tel concludes that, under these precedents, an
    unauthorized assignment or attempted assignment of the licenses from
    Interactive to Wincom occurred on the closing date of the asset
    purchase agreement between those parties.[^65] Finally, Syn-Tel says
    U.S. Telemetry may not invoke the *Second Thursday* doctrine to
    permit the transaction to go forward despite evidence of wrongdoing
    because a condition precedent to the invocation of the *Second
    Thursday* doctrine is that the transferor of the subject licenses be
    in bankruptcy, whereas in this case Interactive is solvent, and
    because U.S. Telemetry may itself be guilty of wrongdoing.[^66]

17. U.S. Telemetry denies that there was an unauthorized assignment or
    transfer of the licenses at any point. It says that the Bankruptcy
    Court findings relied upon by Syn-Tel in making this claim indicate
    only the existence of a contract pursuant to which Wincom acquired
    the right to seek assignment of the licenses.[^67] U.S. Telemetry
    further argues that even if it could be concluded that there had
    been an unauthorized transaction, the involuntary assignment of the
    licenses to Wincom is permissible under the Commission's *Second
    Thursday* doctrine because no Wincom principal would benefit from
    the ultimate assignment of the licenses to U.S. Telemetry or play
    any role in the ultimate assignees.[^68]

18. We conclude that Syn-Tel has failed to establish a *prima facie*
    case warranting further inquiry into the question of whether an
    unauthorized assignment of the licenses from Interactive to Wincom
    had occurred.[^69] During the Bankruptcy Court proceeding, the issue
    was whether Wincom had acquired *rights to seek FCC approval* for
    assignment of the licenses,[^70] and the need to secure advance FCC
    approval for the assignment was acknowledged by the parties from the
    beginning and was also explicit in the Bankruptcy Court's *January
    10 Order*.[^71] Accordingly, the Bankruptcy Court's statements from
    the *January 10 Opinion* cited by Syn-Tel pertain only to the
    contractual relations between the parties, and are not a conclusion
    that the parties had circumvented the requirement for the
    Commission's advance approval to a license assignment. Based on the
    record before us, we can discern no basis to inquire further into
    this matter.

19. The cases cited by Syn-Tel do not persuade us otherwise. In none of
    the cited cases did the Commission purport to establish a principle
    of general applicability as to when an assignment or transfer of
    control is to be deemed consummated for purposes of determining
    whether there has been a violation of Section 310(d) of the Act and
    the implementing rules. In all of the cited cases, the decision was
    clearly fact-specific, holding at most only that, under the
    particular circumstances under review, an unauthorized transaction
    had occurred. These cases are readily distinguishable from the
    instant one, moreover, because here there is an agreement between
    the parties specifically contemplating that the requisite
    applications would be filed with the Commission, and there is no
    evidence that Wincom asserted control of an operating facility prior
    to Commission approval.[^72] In sum, the cases relied upon by
    Syn-Tel do not provide a basis for finding that an unauthorized
    assignment occurred in the circumstances of this case.

    *E. Allegations against U.S. Telemetry.*

20. Syn-Tel alleges that there is sufficient evidence of wrongdoing on
    the part of U.S. Telemetry to warrant a hearing on its basic
    qualifications to be a licensee. Syn-Tel accuses U.S. Telemetry of
    actively suppressing the disclosure of information regarding
    Wincom's participation in the alleged unauthorized assignment of the
    licenses so that U.S. Telemetry might purchase the licenses from the
    Wincom estate at a favorable price.[^73] Syn-Tel asserts that U.S.
    Telemetry "played a central and highly unusual role" in settlements
    between the Trustee and other 218-219 MHz licensees that resulted in
    the exclusion of certain licenses from the bankruptcy estate.[^74]
    According to Syn-Tel, U.S. Telemetry apparently made payments to the
    estate in conjunction with these settlements. This circumstance,
    Syn-Tel argues, reflects U.S. Telemetry's recognition of the
    weakness of Wincom's, and by extension U.S. Telemetry's, claim to
    the licenses.[^75]

21. We find no basis for further inquiry into the basic qualifications
    of U.S. Telemetry. Syn-Tel's allegations against U.S. Telemetry are
    conjectural, and even if proven would not call into question U.S.
    Telemetry's qualifications to be a licensee. Syn-Tel says that the
    record suggests that U.S. Telemetry acted to conceal violations of
    the Commission's Rules, referring to the alleged unauthorized
    assignment of the licenses. We have determined, however, that the
    record does not support that allegation. Moreover, Syn-Tel offers no
    factual basis for its claim that U.S. Telemetry sought to suppress
    the disclosure of information regarding the transaction. Syn-Tel
    does not explain what U.S. Telemetry allegedly did, or omitted to
    do, to suppress disclosure of this information. Additionally, we
    note that, standing alone, an applicant's participation in the full
    or partial settlement of litigation after considering the
    possibility of an adverse decision would not reflect on its
    character. Accordingly, we reject Syn-Tel's request to designate a
    basic qualifications issue against U.S. Telemetry.[^76]

    *F. Wincom's financial qualifications.*

22. Syn-Tel also challenges the Step 1 applications for assignment of
    the licenses from Interactive to Wincom on the ground that Wincom's
    bankruptcy precludes a finding that Wincom is financially qualified
    to be a licensee.[^77] Syn-Tel cites *Tri-State Communications*[^78]
    as an "analogous case," and argues that the U.S. Telemetry
    applications "fly in the face of the Commission's decision in
    *Tri-State*, seeking not only an assignment of a license to a
    bankrupt entity, but to a bankrupt entity that was already in
    bankruptcy the day the application was filed."[^79] U.S. Telemetry
    says *Tri-State* is inapposite because it involved an applicant in a
    comparative hearing for a new broadcast facility, where the
    Commission was called upon to make a predictive judgment about which
    applicant was best qualified to operate the proposed station in the
    public interest.[^80]

23. We believe Syn-Tel's argument on this point is misplaced. To support
    its argument that Wincom's lack of financial qualifications
    precludes a grant of the U.S. Telemetry applications, Syn-Tel relies
    on a single case, *Tri-State Communications*. That case involved a
    comparative hearing to choose among mutually exclusive applicants
    for a new FM broadcast station, and does not suggest that the
    financial qualifications of an entity that does not intend to
    operate an FCC-licensed facility, such as Wincom, must be
    evaluated.[^81]

24. Under previous license assignment methods, the Commission held that
    it is not necessary to evaluate the financial qualifications of an
    entity which is under the supervision of a bankruptcy court and is
    holding the license(s) only temporarily during the pendency of the
    bankruptcy proceeding.[^82] In addition, the Commission has made
    clear that this policy is not confined to receivers and trustees in
    bankruptcy but also applies to any entity that may be assigned the
    license temporarily in conjunction with a bankruptcy
    proceeding.[^83] Under the three-step U.S. Telemetry applications,
    the assignment to Wincom is an intermediate step. Ultimately, it is
    U.S. Telemetry, not Wincom, which proposes to operate the stations,
    and thus it is only the financial qualifications of U.S. Telemetry,
    not those of Wincom, that should concern us here. Furthermore, at
    the time the three-step transfer was approved, the estate had
    already made provision for the continued payment of the financial
    obligations associated with the license through its agreement with
    U.S. Telemetry. Consequently, the intermediate transfer to the
    estate did not raise any issue of the financial qualifications of
    the estate itself.[^84]

25. Syn-Tel's argument also fails to acknowledge that the Commission has
    determined that its interest in the financial integrity of assignees
    of auctioned licenses, such as the licenses at issue here, can be
    met through self-certifications and financial documents.[^85] Where
    a licensee has signed a promissory note, the Commission requires
    that the assignor, the assignee, and the Commission execute loan
    documents, typically taking the form of an assignment and assumption
    agreement, including a self-certification on the part of the
    assignee.[^86] Commission approval of the U.S. Telemetry
    applications will be conditioned on full compliance with these
    documentation requirements,[^87] and this adequately addresses any
    concerns relating to the financial qualifications of any of the
    parties to those applications.

    *G. Effect of Bankruptcy Court ruling.*

26. U.S. Telemetry argues that its applications should be processed over
    Syn-Tel's because to do otherwise would be inconsistent with the
    Commission's duty to reconcile its public interest responsibilities
    for radio licensing with the requirements of the Bankruptcy Code and
    the decision of the Bankruptcy Court.[^88] According to U.S.
    Telemetry, the Commission has previously permitted what would
    otherwise be unorthodox filing procedures in order to protect
    innocent creditors of bankrupt entities.[^89] In this case, U.S.
    Telemetry adds, it was within the jurisdiction of the Bankruptcy
    Court to decide Wincom's contract rights under its agreement with
    Interactive, and the Commission, in keeping with precedent and its
    consistent practice, should defer to such a judicial determination
    regarding the validity of contracts between licensees and
    others.[^90] According to Syn-Tel, its applications should be
    processed because Interactive, as the licensee of record, is the
    only party authorized to seek assignment of the licenses, and
    Interactive has chosen to assign the licenses to Syn-Tel.[^91] In
    what Syn-Tel terms "an obvious effort to make too much of the
    decision of the United States Bankruptcy Court," U.S. Telemetry is,
    in Syn-Tel's view, asking the Commission to take the unprecedented
    step of approving the involuntary assignment of licenses from
    Interactive to Wincom.[^92]

27. Conceding that the Commission has a history of working with
    bankruptcy courts and trustees to effectuate license transactions
    that will benefit innocent creditors, Syn-Tel says the instant case
    is distinguishable from those earlier cases because Interactive is
    not itself in bankruptcy, and never lawfully transferred its license
    to Wincom. Should the U.S. Telemetry applications be granted,
    Syn-Tel says, a licensee who has not committed fraud or declared
    bankruptcy will have its license taken from it involuntarily.[^93]
    Syn-Tel further asserts that, in the line of cases relied upon by
    U.S. Telemetry, "it appears that the Commission had not taken a hard
    look at the qualifications of the potential licensees, but instead
    deferred the vast majority of its review to the decision of the
    courts."[^94] Syn-Tel suggests that the Commission deferred to the
    courts in these cases because a failure to accommodate the court
    decision in the licensing process threatened a disruption of
    service. Because no service has been initiated under these 218-219
    MHz licenses, there is no similar risk of disruption here, according
    to Syn-Tel.[^95]

28. In this instance, we have determined to defer to a court of
    competent jurisdiction with respect to its interpretation of a
    contract entered into by the parties, *i.e.*, Interactive and
    Wincom, and its attendant conclusion that Wincom acquired a right to
    apply to the Commission for the assignment of the subject licenses.
    We also acknowledge the Bankruptcy Court's authority to allow the
    Trustee for Wincom to exercise such a right. Our actions are
    consistent with our obligation under Section 309(a) of the Act to
    grant applications only when the "public interest, convenience, and
    necessity will be served."[^96]

29. In *Arecibo Radio Corporation*,[^97] applications for involuntary
    assignment of two broadcast licenses from the licensee to a third
    party were signed, pursuant to court directive, by the Marshall of
    the Superior Court of Puerto Rico, rather than by an officer of the
    licensee. The Commission approved the assignments, rejecting the
    licensee's contention that a license may be assigned without the
    incumbent licensee's consent only when the incumbent licensee is
    legally disabled from holding the license.[^98] The Commission held
    that, given its policy of deferring to courts of competent
    jurisdiction in the interpretation and enforcement of contracts, it
    was proper to accept and process the assignment applications under
    the Marshall's signature since the licensee, in refusing to sign the
    applications, was defying an order of the court concerning a matter
    clearly within the court's jurisdiction.[^99] The Commission also
    determined that the court's actions had not interfered with the
    licensee's right to assert before the Commission any argument
    regarding the assignment applications, and specifically and
    appropriately left to the Commission the determination of public
    interest issues raised by the applications.[^100] Accordingly, we
    reject Syn-Tel's contention that the Step 1 application -- the
    application for involuntary assignment of the licenses from
    Interactive to Wincom -- is unprecedented and without legal basis.

30. As we have established above, Commission precedent allows us to
    recognize the contract right granted to Wincom, *i.e*., the right to
    apply for the assignment of licenses. As we explain below,
    Commission precedent also allows us to give deference to the
    Bankruptcy Court's conclusion that such a right is part of the
    estate in bankruptcy and that the Trustee is authorized to exercise
    that right.

31. For example, the Commission has permitted a bankruptcy trustee,
    receiver or other court-appointed agent to file applications to
    assign licenses to himself/herself and then to a third party without
    the acquiescence of the licensee.[^101] The Commission accepted and
    processed such applications even when the licensee of record was not
    bankrupt or otherwise subject to financial disqualification.[^102]
    In doing so, the Commission rejected arguments that it may not
    permit assignment of a license without the licensee's consent in the
    absence of a revocation proceeding pursuant to Section 312 of the
    Act[^103] or a finding that the licensee is under a legal
    disability.[^104] We find, therefore, that the acceptance and grant
    of the Step 2 and Step 3 applications, like that of the Step 1
    application, is consistent with precedent and in accord with
    established Commission policy.

32. We conclude that there is no basis for departing here from judicial
    and Commission precedent regarding the treatment of applications for
    involuntary assignment submitted by officers of the bankruptcy court
    with the court's authorization.[^105] U.S. Telemetry has been found
    qualified to be a Commission licensee, as reflected in the grant of
    a number of applications to assign licenses to U.S. Telemetry, and
    there are no paramount policy considerations that would warrant
    denial of the U.S. Telemetry applications.[^106] Thus, we deny the
    Syn-Tel Petition insofar as it requests that we grant the Syn-Tel
    applications rather than the U.S. Telemetry applications.

33. Having determined that the grant of the U.S. Telemetry applications
    will serve the public interest, we dismiss the reinstated Syn-Tel
    applications under Section 1.934(d)(2) of the Rules.[^107] Section
    1.934(d)(2) provides, in pertinent part, that "\[t\]he Commission
    may dismiss without prejudice an application that it finds to be
    defective. An application is defective if: ... (2) \[i\]t requests
    an authorization that would not comply with one or more of the
    Commission's rules" and does not seek a waiver to remedy this
    defect.[^108] The Syn-Tel applications are defective within the
    meaning of Section 1.934(d)(2) because, as explained above, the
    Bankruptcy Court, based upon its determination that Wincom possessed
    the contract right to apply for the assignment of licenses,
    authorized the Trustee to file assignment applications for these
    licenses. Commission precedent allows us to defer to the Court's
    decision in this regard. Therefore, the Syn-Tel assignment
    applications were signed by a party who was not authorized to seek
    assignment of the licenses. The lack of a valid authorized signature
    violates Section 1.917 of our Rules.[^109] Thus, the Syn-Tel
    applications are subject to dismissal for this failure to comply
    with Section 1.917.[^110] Accordingly, our decision here is
    supported by Commission precedent and comports with our rules.

34. We note that both the Wincom bankruptcy estate and Interactive filed
    elections for these licenses pursuant to the restructuring plan for
    the 218-219 MHz Service. Both elected the option of reamortization
    and resumption of payments. We accepted Interactive's election and
    rejected the bankruptcy estate's election because we accepted
    elections only from the licensees of record as of the election
    date.[^111] In light of our decision herein, we reject Interactive's
    election and accept the Wincom bankruptcy estate's election *nunc
    pro tunc*. The payment obligations attending the resumption option
    continue to attach to these licenses. Accordingly, as an eligible
    licensee that elected resumption, Wincom must execute loan
    documents.[^112]

35. In keeping with our general practice with respect to assignment
    applications involving 218-219 MHz licenses to which an indebtedness
    to the FCC attaches,[^113] we condition the grant of the U.S.
    Telemetry applications upon full and timely performance of the
    payment obligations under the installment payment plan. All
    installment payments must be current on the consummation date. Our
    approval of the U.S. Telemetry applications is further conditioned
    upon the execution of all Commission loan documents by the parties,
    and upon U.S. Telemetry's execution of the applicable financing
    statements (*i.e*., the UCC-1 Forms) and payment of all costs
    associated with the preparation and recordation of the financing
    statements. It is further conditioned upon full payment of any
    required unjust enrichment payments on or before the consummation
    date.[^114] Upon receipt of the notification required by Section
    1.948(d) of the Rules,[^115] and satisfaction of all requisite
    conditions, including execution of the appropriate documents, we
    will consider the assignment "complete" and will issue the licenses
    to U.S. Telemetry. Failure of the parties to comply with Section
    1.948(d) or any specific condition described herein will result in
    automatic cancellation of the Commission's assignment approval, and
    dismissal of the applications.

### CONCLUSION AND ORDERING CLAUSES

36. For the reasons set forth above, we grant the petitions for
    reconsideration insofar as they seek reinstatement *nunc pro tunc*
    of the subject assignment applications. We further determine that
    the public interest will be served by the grant of the U.S.
    Telemetry applications, rather than the Syn-Tel applications, and we
    accordingly dismiss the Syn-Tel applications.

37. ACCORDINGLY, pursuant to Sections 4(i) and 405 of the Communications
    Act of 1934, as amended, 47 U.S.C. §§ 154(i), 405, and Section 1.106
    of the Commission's Rules, 47 C.F.R. § 1.106, IT IS ORDERED that the
    petitions for reconsideration filed by U.S. Telemetry and Syn-Tel on
    February 16, 2001 and March 2, 2001, respectively, ARE GRANTED IN
    PART insofar as they seek reinstatement of the applications *nunc
    pro tunc*.

38. IT IS FURTHER ORDERED that the Application to Assign the Licenses
    for Call Signs KIVD0063 and KIVD0247 from Interactive Control Two,
    Inc. to U.S. Telemetry New Brunswick, Inc., FCC File No. 0000334962,
    filed February 7, 2000; the Application to Assign the License for
    Call Sign KIVD0247 from Interactive Control Two, Inc. to Syn-Tel
    Lancaster, LLC, FCC File No. 0000334985, filed May 23, 2000; and the
    Application to Assign the License for Call Sign KIVD0063 from
    Interactive Control Two, Inc. to Syn-Tel New Brunswick LLC, FCC File
    No. 0000334996, filed May 23, 2000, are REINSTATED *nunc pro tunc*.

39. IT IS FURTHER ORDERED that the Application to Assign the Licenses
    for Call Signs KIVD0063 and KIVD0247 from Interactive Control Two,
    Inc. to Wincom, then to the Wincom bankruptcy state, and ultimately
    to U.S. Telemetry New Brunswick, Inc., FCC File No. 0000334962,
    filed February 7, 2000, is GRANTED, effective January 22, 2001,
    subject to the conditions set forth in paragraphs 34-35, *supra*.

40. IT IS FURTHER ORDERED that the Wincom Bankruptcy Estate is the
    licensee of record for Call Signs KIVD0063 and KIVD0247 for purposes
    of the 218-219 MHz Service Restructuring Plan, and the Wincom
    Bankruptcy Estate's election pursuant to the 218-219 MHz Service
    Restructuring Plan is ACCEPTED *nunc pro tunc*, and Interactive
    Control Two's election pursuant to the 218-219 MHz Service
    Restructuring Plan is REJECTED *nunc pro tunc*.

41. IT IS FURTHER ORDERED that the Application to Assign the License for
    Call Sign KIVD0247 from Interactive Control Two, Inc. to Syn-Tel
    Lancaster, LLC, FCC File No. 0000334985, filed May 23, 2000, and the
    Application to Assign the License for Call Sign KIVD0063 from
    Interactive Control Two, Inc. to Syn-Tel New Brunswick LLC, FCC File
    No. 0000334996, filed May 23, 2000, ARE DISMISSED pursuant to
    Section 1.934 of the Rules, 47 C.F.R. § 1.934.

42. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131,
    0.331.

    FEDERAL COMMUNICATIONS COMMISSION

Kathleen O'Brien Ham

Deputy Chief

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration and Reinstatement *Nunc Pro Tunc*
    filed by U.S. Telemetry on February 16, 2001 (U.S. Telemetry
    Petition); Petition for Reconsideration and Reinstatement *Nunc Pro
    Tunc* filed by Syn-Tel on March 2, 2001 (Syn-Tel Petition).

[^2]: The additional pleadings are a Motion to Accept Late-Filed
    Opposition to Syn-Tel Petition for Reconsideration and Reinstatement
    *Nunc Pro Tunc*, filed by U.S. Telemetry on March 16, 2001 (U.S.
    Telemetry Motion); an Opposition to Syncom \[sic\] Petition for
    Reconsideration and Reinstatement *Nunc Pro Tunc*, filed by U.S.
    Telemetry on March 16, 2001 (U.S. Telemetry Opposition); a
    Supplement to Petition for Reconsideration and Reinstatement *Nunc
    Pro Tunc*, filed by U.S. Telemetry on March 19, 2001 (U.S. Telemetry
    Supplement); a Motion for Extension of Time \[to File a Reply to the
    U.S. Telemetry Opposition\], filed by Syn-Tel on March 20, 2001
    (Syn-Tel Motion); a Petition for Waiver of Page Limitation, filed by
    Syn-Tel on April 9, 2001 (Syn-Tel Waiver Request); and a Reply to
    Opposition to Petition for Reconsideration and Reinstatement *Nunc
    Pro Tunc*, filed by Syn-Tel on April 9, 2001 (Syn-Tel Reply). In
    light of the unusual circumstances of this case, where we have what
    are in effect mutually exclusive applications to assign the same
    licenses, we will grant the U.S. Telemetry Motion, the Syn-Tel
    Motion, and the Syn-Tel Waiver Request, waive the relevant rules,
    and consider all of the referenced pleadings in order to develop as
    complete a record as possible in this matter. We note that neither
    party has objected to any of the other party's procedural requests.
    We nonetheless remind litigants before the Commission that we will
    not routinely grant extensions of time for the filing of pleadings,
    accept late-filed pleadings, or waive the page limitations for
    pleadings.

[^3]: 47 C.F.R. § 1.106.

[^4]: On January 22, 2001, the Branch gave consent to the applications
    to assign the licenses to U.S. Telemetry. On January 23, 2001,
    however, the Branch set aside its consent to those applications, and
    they were subsequently dismissed.

[^5]: Public notice of the dismissals was given on January 31, 2001.
    Wireless Telecommunications Bureau Assignment of Authorization and
    Transfer of Control Applications -- Action, *Public Notice*, Report
    No. 767, at 31-32 (rel. Jan. 31, 2001). On February 16, 2001, the
    Branch sent letters to the parties explaining the reason for the
    dismissals. Letter from Mary Shultz, Chief, Licensing and Technical
    Analysis Branch, Public Safety and Private Wireless Division,
    Wireless Telecommunications Bureau to Wayne L. Rogers, Syn-Tel New
    Brunswick LLC (sent by facsimile transmission on February 16, 2001);
    Letter from Mary Shultz, Chief, Licensing and Technical Analysis
    Branch, Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau to Wayne L. Rogers, Syn-Tel Lancaster LLC
    (sent by facsimile transmission on February 16, 2001); and Letter
    from Mary Shultz, Chief, Licensing and Technical Analysis Branch,
    Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau to K. Steven Roberts, U.S. Telemetry New
    Brunswick, Inc. (sent by facsimile transmission on February 16,
    2001) (collectively, Dismissal Letters).

[^6]: Application to Assign the Licenses for Call Signs KIVD0063 and
    KIVD0247 from Interactive Control Two, Inc. to U.S. Telemetry New
    Brunswick, Inc., FCC File No. 0000334962, filed February 7, 2000.

[^7]: Application to Assign the License for Call Sign KIVD0247 from
    Interactive Control Two, Inc. to Syn-Tel Lancaster, LLC, FCC File
    No. 0000334985, filed May 23, 2000; and Application to Assign the
    License for Call Sign KIVD0063 from Interactive Control Two, Inc. to
    Syn-Tel New Brunswick LLC, FCC File No. 0000334996, filed May 23,
    2000.

[^8]: 47 C.F.R. § 1.934(d)(2).

[^9]: Announcing High Bidders for 594 Interactive Video and Data Service
    (IVDS) Licenses, *Public Notice*, Mimeo 44160 (rel. Aug. 2, 1994).
    In 1998, the IVDS was redesignated as the 218-219 MHz Service and
    the rules governing the service were amended. *See* Amendment of
    Part 95 of the Commission's Rules to Provide Regulatory Flexibility
    in the 218-219 MHz Service, *Memorandum Opinion and Order and Notice
    of Proposed Rulemaking*, WT Docket No. 98-169, 13 FCC Rcd 19064
    (1998).

[^10]: The referenced agreement was entered into by World Interactive
    Network, Inc., the predecessor in interest to Wincom. In addition,
    subsequent to the agreement, Wincom was consolidated into Winco,
    Inc. *See* In re Winco Corp., D. Heubsch Corp., Lincoln
    Distributing, Wincom Corp., Consolidated Case Nos. 98-01647-R,
    98-03493-R, 98-03494-R and 98-02066-R, *Memorandum Opinion*, at 4-5,
    7 n.2 (Bankr. N.D. Okla. Jan. 10, 2000) (slip opinion) (*January 10
    Opinion*). These corporate changes have no relevance to the legal
    issues before us, and we will refer to the company as Wincom
    throughout this *Order on Reconsideration* in the interest of
    clarity.

[^11]: *January 10 Opinion* at 5; *see* *also* Agreement for Purchase
    and Sale of Assets, dated August 31, 1995, attached as Exhibit C to
    the U.S. Telemetry Petition (*Asset Purchase Agreement*).

[^12]: *January 10 Opinion* at 5-6.

[^13]: *See* Letter from Stephen Díaz Gavin, Esq., Patton Boggs LLP, to
    Ms. Magalie Roman Salas, Secretary, Federal Communications
    Commission, dated February 4, 2000, at 2 (Cover Letter to U.S.
    Telemetry Applications).

[^14]: *See* Letter from K. Steven Roberts, Esq. to Patrick J. Malloy
    III, Trustee, dated October 7, 1999 and attached as Exhibit C to the
    Trustee's Motion to Sell filed with the Bankruptcy Court on October
    14, 1999. The purchase offer was from Lynx Network, Inc. and 218
    Telemetry Inc., which together own U.S. Telemetry. The licenses were
    to go to U.S. Telemetry as the purchasers' designee. Some of these
    licenses had canceled automatically and were therefore not eligible
    to participate in the restructuring plan. Wireless
    Telecommunications Bureau Announces Revised Election Date (January
    31, 2001) and Amended Eligibility List for 218-219 MHz Service,
    *Public Notice*, 16 FCC Rcd 5937 (2001).

[^15]: *January 10 Opinion* at 1.

[^16]: *Id*. at 1-2.

[^17]: *Id*. at 6.

[^18]: *Id*. at 17-19. The Bankruptcy Court also found that the price
    offered by U.S. Telemetry for the licenses was fair and reasonable.
    *Id.* at 18.

[^19]: *Id*. at 17.

[^20]: The Bankruptcy Court stated, "The FCC's interest in regulating
    the transfer of licenses, including its right to approve, or not,
    any transfer of any license for any reason is not affected by this
    order. The sale to the Purchasers is *contingent* upon FCC approval
    as stated in the Trustee's Motions ...." *Id*. at 19 (emphasis in
    original).

[^21]: *See* In re Winco Corp., D. Heubsch Corp., Lincoln Distributing,
    Wincom Corp., Consolidated Case Nos. 98-01647-R, 98-03493-R,
    98-03494-R and 98-02066-R, *Second* *Amended Order*, at 2 (Bankr.
    N.D. Okla. May 12, 2000) (slip opinion) (*Second Amended Order*).

[^22]: *Id*. at 3-4.

[^23]: *Id*. at 3.

[^24]: Currently, applications to assign 218-219 MHz licenses must be
    filed on FCC Form 603. *See* 47 C.F.R.\
    § 1.913(a)(3). However, the use of FCC Form 603 for this purpose did
    not become mandatory until March 20, 2001. *See* Wireless
    Telecommunications Bureau Implements Phase I of a Three-Phased
    Deployment of the Universal Licensing System for Land Mobile Radio
    Services on September 19, 2000, *Public Notice*, 15 FCC Rcd 18945
    (2000).

[^25]: We believe the transaction between Wincom and the Trustee
    represents an assignment of the licenses, rather than a transfer of
    control. However, the characterization of the transaction as either
    an assignment or transfer of control does not bear on our analysis
    of the legal issues in this case.

[^26]: Although there is only one Step 1 application and one Step 2
    application, there are two Step 3 applications to account for the
    different entities -- U.S. Telemetry-New Brunswick, Inc. and U.S.
    Telemetry-Lancaster, Inc. -- which are proposed as assignees.

[^27]: Cover Letter to U.S. Telemetry Applications at 3.

[^28]: *See* n.4, *supra*.

[^29]: Dismissal Letters at 1.

[^30]: U.S. Telemetry Supplement at 2-3; Syn-Tel Petition at 5-7.

[^31]: U.S. Telemetry Petition at 5-6.

[^32]: 47 U.S.C. § 310(d).

[^33]: U.S. Telemetry Petition at 10.

[^34]: U.S. Telemetry Opposition at 7-8 (citing 47 C.F.R. § 1.937(d)).

[^35]: Syn-Tel Petition at 3-5.

[^36]: 494 F.2d 1145 (D.C. Cir. 1974) (*LaRose*) (holding that, in light
    of the public interest in protecting innocent creditors of bankrupt
    entities, as embodied in the Commission's *Second Thursday*
    doctrine, the Commission abused its discretion by rejecting on
    grounds of administrative finality a petition for reconsideration
    filed by a receiver in bankruptcy seeking the renewal and assignment
    of a broadcast license).

[^37]: U.S. Telemetry Petition at 6-10; U.S. Telemetry Opposition at
    8-13.

[^38]: Syn-Tel Petition at 8-10; Syn-Tel Reply at 7-8.

[^39]: Syn-Tel Petition at 10-15; Syn-Tel Reply at 9-23.

[^40]: U.S. Telemetry Supplement at 2-3.

[^41]: Syn-Tel Petition at 5-7.

[^42]: *Id*. at 3.

[^43]: 47 C.F.R. § 1.934(a).

[^44]: This action renders moot the issues raised by U.S. Telemetry
    regarding the adequacy and timing of the Branch's notification of
    the applicants as to the reasons for the dismissals. It also renders
    moot U.S. Telemetry's argument that dismissing its applications due
    to the filing of the Syn-Tel applications contravened the directive
    in Section 310(d) of the Act that the Commission consider only the
    qualifications of the proposed assignee and not some third party.

[^45]: 47 C.F.R. § 1.937(d).

[^46]: U.S. Telemetry Opposition at 6-8.

[^47]: Syn-Tel Reply at 4-5.

[^48]: *Id*. at 5-6.

[^49]: 47 C.F.R. § 1.937(d).

[^50]: Big Wyoming Broadcasting Corp., *Memorandum Opinion and Order*, 2
    FCC Rcd 3493 (1987).

[^51]: 37 F.3d 1531 (D.C. Cir. 1994).

[^52]: Syn-Tel Petition at 3-5.

[^53]: 47 U.S.C. §§ 309(e), 310(d).

[^54]: 506 F.2d 246, 259 (D.C. Cir. 1974).

[^55]: Syn-Tel Petition at 4.

[^56]: *See* 47 U.S.C. § 309(d)(2), (e).

[^57]: *See* ¶¶ 28-31*, infra.*

[^58]: Syn-Tel Petition at 10-11.

[^59]: *Id*. at 11 (citing *January 10 Opinion* at 13) (emphasis in
    *January 10 Opinion*).

[^60]: Syn-Tel Reply at 10.

[^61]: Oyate, Inc., *Memorandum Opinion and Order*, 3 FCC Rcd 6759
    (1988) (*Oyate*). In *Oyate*, Syn-Tel observes, the Commission held
    that "\[b\]cause \[it\] had not yet approved the sale of \[the
    station\], the certificates should not have been taken out of
    escrow." *Id*. at 6762 ¶ 25.

[^62]: In re Kevin Hackler, *Notice of Apparent Liability for
    Forfeiture*, 15 FCC Rcd 12928 (EB 2000) (*Hackler*).

[^63]: Syn-Tel Petition at 12.

[^64]: *Id*. at 12-13 (citing Voice of Reason, *Decision*, 37 FCC 2d
    686, 692-93 ¶¶ 15-16 (Rev. Bd. 1972) (*Voice of Reason*)).

[^65]: *Id*. at 13. Syn-Tel adds that Wincom apparently had a motive to
    consummate the transaction for financial reporting purposes. It
    alleges, among other things, that Wincom represented itself
    prematurely as the licensee in certain written communications; that
    Wincom and affiliated companies made material misrepresentations to
    licensees with which they contracted; and that Wincom wanted to make
    its interests in all of the 218-219 MHz licenses appear less
    contingent than they were in order to give a favorable impression of
    its financial condition to accountants and/or the Securities and
    Exchange Commission. Syn-Tel Reply at 15-19.

[^66]: Syn-Tel Reply at 11-13. *See* Second Thursday Corp., *Memorandum
    Opinion and Order*, 22 FCC 2d 515, *recon. granted*, 25 FCC 2d 112
    (1970) (*Second Thursday*). The *Second Thursday* doctrine is an
    exception to the general rule that if basic qualifications issues
    have been designated against a licensee, the licensee may not assign
    or transfer its licenses until the matter has been resolved and the
    licensee has been found qualified to hold those licenses. Under
    *Second Thursday*, when such a licensee has gone into bankruptcy,
    the license may be assigned, usually by a trustee in bankruptcy, if
    it is established that "the individuals charged with misconduct will
    have no part in the proposed operations and will either derive no
    benefits from favorable action on the applications or only a minor
    benefit which is outweighed by equitable considerations in favor of
    innocent creditors." *Second* *Thursday*, 22 FCC 2d at 516 ¶ 5.

[^67]: U.S. Telemetry Opposition at 13-14.

[^68]: *Id*. at 14.

[^69]: We observe at the outset that if an unauthorized assignment of
    the licenses had indeed occurred, it would reflect on the basic
    qualifications not only of Wincom but also of Interactive. The
    designation of a basic qualifications issue against Wincom would
    seem to necessitate designation of a basic qualifications issue
    against Interactive as well. Under our *Jefferson Radio* policy,
    which precludes the approval of a license assignment when designated
    issues regarding the basic qualifications of the licensee remain
    unresolved, this would present an obstacle to the grant of the
    Syn-Tel applications at least as great as it would to the U.S.
    Telemetry applications. *See Jefferson Radio Co. v. FCC*, 340 F. 2d
    781 (D.C. Cir. 1964).

[^70]: *See, e.g., January 10 Opinion* at 18 (concluding that "the
    Trustee met his burden of showing that the estate possesses an
    interest in the licenses, that being the right to apply for FCC
    approval of the assignments... .")

[^71]: *January 10 Opinion* at 19 (holding that "\[t\]he sale to the
    purchasers is *contingent* upon FCC approval, as stated in the
    Trustee's motions ... .) (emphasis in original); *Asset Purchase
    Agreement* at 2 (specifying that *"\[i\]immediately upon receipt of
    FCC approval* for the transfer of the Licenses, Seller shall deliver
    to Purchaser possession of the Licenses and the Transfer Documents
    (the 'Approval Date')." (emphasis added). Throughout the *Asset
    Purchase Agreement*, the parties make clear that the transaction is
    not to be consummated without FCC approval and is to be subject to
    any conditions imposed by the Commission in conjunction with that
    approval. *See, e.g*., *Asset Purchase Agreement* at 5 (Clause 9(b),
    Procurement of FCC Approvals, and Clause 9(d), Special FCC
    Conditions). Of course, in determining whether an unauthorized
    assignment of a license may have occurred, we must look to the
    actual conduct of the parties as well as the terms of the agreement
    between them. Here, however, the record is devoid of any allegation
    that Wincom had assumed any control of any operating facilities
    authorized by the subject licenses or otherwise exercised the
    prerogatives of a licensee.

[^72]: In *Hackler*, the Enforcement Bureau concluded only that a
    transfer of control occurred on or about the same date on which a
    licensee executed to another party lien documents conveying, among
    other things, all pertinent station equipment, accounts receivable,
    furniture, fixtures, and FCC licenses for an operating FM radio
    station. *Hackler*, 15 FCC Rcd at 12930 ¶ 6. Similarly, in *Voice of
    Reason,* the Review Board did not determine that the release of
    funds from escrow always constitutes an unauthorized transfer of
    control, but only that such a transfer of control had occurred in
    the particular circumstances of that case because, as consideration
    for the release, the party in question received and exercised actual
    day-to-day control of the station. *Voice of Reason*, 37 FCC 2d at
    692-93 ¶¶ 15-16. Finally, when read in context, it is clear that the
    Commission's statement in *Oyate* that "\[b\]ecause the Commission
    had not yet approved the sale of \[the station\], the certificates
    should not have been taken out of escrow," *Oyate*, 3 FCC Rcd at
    6762 ¶ 25, does not represent a Commission determination that the
    removal of the certificates from escrow constituted an unauthorized
    transfer of control, but only that it complicated the resolution of
    the matter for the interested parties.

[^73]: Syn-Tel Reply at 20-23.

[^74]: *Id*. at 20.

[^75]: *Id*. at 22.

[^76]: Having determined that further inquiry into the basic
    qualifications of the parties is not warranted, we need not address
    their arguments regarding the applicability of the *Second Thursday*
    doctrine to this case.

[^77]: Syn-Tel Petition at 13-15.

[^78]: Tri-State Communications, *Summary Decision*, 4 FCC Rcd 6708 (ALJ
    1989) (*Tri-State*).

[^79]: Syn-Tel Petition at 14.

[^80]: U.S. Telemetry Opposition at 15.

[^81]: *See* *Tri*-*State*, 4 FCC Rcd at 6709 ¶¶ 9-10.

[^82]: *See, e.g.*, Gulf Coast Radio, Inc., *Memorandum Opinion and
    Order*, 45 FCC 1865, 1866 ¶ 4 (1964) (holding that the financial and
    other qualifications of a receiver in bankruptcy "require no
    detailed consideration" given that the assignment of the license to
    the receiver "by its very nature is a temporary measure.");
    *LaRose*, 494 F.2d at 1148 n.4. (observing with approval that the
    Commission's practice in cases involving an involuntary assignment
    to a receiver in bankruptcy is to treat the receiver's
    qualifications as irrelevant, and to focus on the qualifications of
    the ultimate assignee); D.H. Overmyer Telecasting Co., Inc.,
    *Memorandum Opinion and Order*, 94 FCC 2d 117, 124\
    ¶ 10 (1983) (*D.H. Overmyer*) (reasoning that it is not necessary to
    consider the qualifications of an assignee where the assignee is to
    hold the license only temporarily, and under the supervision of the
    Bankruptcy Court, until the bankruptcy estate is settled and the
    ultimate licensee is approved.). This policy comports with the
    Communications Act; Section 308(b) of the Act does not mandate
    scrutiny of the financial qualifications of an applicant if the
    Commission "deems it irrelevant to its regulatory scheme." *National
    Association of Regulatory Utility Commissioners v. FCC*, 525 F.2d
    630, 645 (D.C. Cir.), *cert. denied*, 425 U.S. 992 (1976).

[^83]: *D.H. Overmyer*, 94 FCC 2d at 124 ¶ 11 (stating "we find it
    inappropriate to accept \[the\] proposition that distinctions should
    be made between court appointed agents, ... debtors in possession,
    trustees and receivers. While each designation has its own
    significance under federal bankruptcy law, they all represent
    essentially the same basic situation with regard to the control of
    the licensee; *i.e*., in each case a licensee is not an independent
    entity, but subject to the control of a court appointed and
    supervised officer.").

[^84]: The result here may not hold true if we were presented with an
    involuntary assignment to an entity that lacked the ability to
    ensure payment of debt obligations associated with the license and
    make the required certifications pertaining to financial
    qualifications.

[^85]: *See* Applications for Assignment of Broadband Personal
    Communications Services Licenses, *Order*, 14 FCC Rcd 1126 (1998)
    (*Tritel Order*) (holding that execution of required documentation,
    including an Assignment and Assumption Agreement, strikes a
    reasonable balance in satisfying the Commission's interests in the
    financial integrity of a licensee in an auction context.) In the
    *Tritel Order*, the Commission noted the great weight it would place
    on certifications of solvency, and that a misrepresentation in that
    context may be grounds for a revocation of license. *Id*. at 1127 ¶
    3.

[^86]: Amendment of Part 1 of the Commission's Rules -- Competitive
    Bidding Procedures, *Order of Reconsideration of the Third Report
    and Order, Fifth Report and Order, and Fourth Further Notice of
    Proposed Rule Making*, WT Docket No. 97-82, 15 FCC Rcd 15293, 15312
    (¶ 32) (2000).

[^87]: *See* ¶¶ 34-35, *supra*.

[^88]: U.S. Telemetry Petition at 6 (citing *LaRose*).

[^89]: *Id*. at 6-7.

[^90]: *Id*. at 7-9.

[^91]: Syn-Tel Petition at 7.

[^92]: *Id*. at 8.

[^93]: Syn-Tel Reply at 7.

[^94]: *Id*. at 7-8.

[^95]: *Id*. at 8.

[^96]: Syn-Tel asserts repeatedly in its pleadings that we must not
    avoid our licensing responsibilities under the Act by giving too
    much weight to the Bankruptcy Court decisions. We defer to the
    Bankruptcy Court only with respect to matters within its
    jurisdiction, and we make here an independent determination that
    U.S. Telemetry is qualified to be a Commission licensee and that the
    public interest will best be served by the grant of the U.S.
    Telemetry applications. *See* ¶ 32 *supra*. In addition, to the
    extent that Syn-Tel claims that the Bankruptcy Court's factual
    findings and legal conclusions are flawed because they are based on
    an incomplete record, we note that the Court determined that legally
    adequate notice had been provided to all interested parties. If
    Syn-Tel believes that its failure to participate in the Bankruptcy
    Court proceeding was due to legally insufficient notice, and that
    its participation would have resulted in a different decision by the
    Bankruptcy Court, it must turn to the federal courts, not the
    Commission, for relief from any such alleged legal error. Litigants
    complaining of unfairness in a Bankruptcy Court proceeding have
    available to them avenues of recourse within the judicial system.
    *See* Station KDEW(AM), *Memorandum Opinion and Order*, 11 FCC Rcd
    13683, 13687 ¶ 10 (1996), and cases cited therein (explaining that
    the Commission will not undertake an independent investigation of
    allegations that there were "mistakes, illegalities, and
    irregularities" in a bankruptcy court's decision, but rather will
    leave such disputes for resolution by tribunals specifically charged
    with reviewing such matters on appeal).

[^97]: Arecibo Radio Corporation, *Memorandum Opinion and Order*, 101
    FCC 2d 545 (1985) (*Arecibo*).

[^98]: *Id*. at 549 n.12.

[^99]: *Id*.

[^100]: *Id*. at 549 ¶ 10.

[^101]: *See* O.D.T. International, *Memorandum Opinion and Order*, 9
    FCC Rcd 2575 (1994) (*O.D.T. International*); In the Matter of Dale
    J. Parsons, *Memorandum Opinion and Order*, 10 FCC Rcd 2718 (1995)
    (*Parsons*), *aff'd per curiam*, 93 F.3d 986 (D.C. Cir. 1996).

[^102]: In *Parsons*, the licensee was not in bankruptcy. *Parsons*, 10
    FCC Rcd at 2720 ¶ 11. In *O.D.T. International*, moreover, the
    Commission stated that even if it assumed that the licensee in that
    case was financially qualified, "approval of \[the licensee's\]
    proposal would appear to sanction an evasion of federal policies
    under the bankruptcy laws. Unless a public interest determination
    compels a different result, the Commission attempts to accommodate
    such policies." *O.D.T. International*, 9 FCC Rcd at 2576 ¶ 8.

[^103]: 47 U.S.C. § 312. Section 312 lists seven discrete grounds for
    revoking a license and requires that a hearing precede revocation.

[^104]: *See* *Parsons*, 10 FCC Rcd at 2721 ¶ 17 (rejecting argument
    that licensee must be afforded a Section 312 hearing); *Arecibo*,
    101 FCC 2d 549 n.12 (rejecting argument that legal disability of the
    licensee is a prerequisite).

[^105]: Syn-Tel also argues that the instant case is distinguishable
    from precedent because, in the earlier cases, the Commission paid
    deference to the Bankruptcy Court decisions at least partly out of a
    concern to avoid separating the license from the licensed
    facilities, which could result in a disruption of service. This
    concern, Syn-Tel says, is absent from the instant case. Syn-Tel
    Reply at 8. Syn-Tel, however, does not cite a case in which it was
    held that the concern about disruption of service was a significant
    decisional factor.

[^106]: U.S. Telemetry requests a waiver of Section 1.913(a) of our
    Rules, 47 C.F.R. § 1.913(a), to the extent needed for acceptance of
    the Step 1 application because the application is signed by the
    Trustee rather than an officer, director or duly authorized employee
    of Interactive. Cover Letter to U.S. Telemetry Applications at 6-7.
    However, it is Section 1.917(a), 47 C.F.R. § 1.917(a), that
    specifies who may sign FCC applications. Since the Trustee does not
    fit squarely into any of the enumerated classes of eligible
    signatories, we will grant a waiver of § 1.917. This comports with
    the waiver granted by the Commission in *Arecibo*. *See* *Arecibo*,
    101 FCC 2d at 549 ¶ 10 (waiving the Part 73 rule requiring that a
    duly authorized corporate officer of the licensee sign the
    assignment applications).

[^107]: 47 C.F.R. § 1.934(d)(2).

[^108]: *Id*.

[^109]: 47 C.F.R. § 1.917.

[^110]: Biennial Regulatory Review -- Amendment of Parts 0, 1, 13, 22,
    24, 26, 27, 80, 87, 90, 95, 97, and 101 of the Commission's Rules to
    facilitate the Development and Use of the Universal Licensing System
    in the Wireless Telecommunications Services, *Report and Order*, 13
    FCC Rcd 21027, 21068 ¶ 89-90 (1998) (holding that an application is
    defective under Section 1.934(d) if it is filed "without a valid
    signature.")

[^111]: Wireless Telecommunications Bureau Announces the Elections for
    the 218-219 MHz Service, *Public Notice*, 16 FCC Rcd 5901 (2001).

[^112]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service, *Report and Order
    and Memorandum Opinion and Order*, WT Docket No. 98-169, 15 FCC Rcd
    1497, 1524-25 ¶ 44 (1999) (*Restructuring Order*). In the
    *Restructuring Order*, the Commission adopted a restructuring plan
    for existing 218-219 MHz licensees that acquired their licenses
    through competitive bidding and met specified eligibility criteria.
    Under the restructuring plan, eligible licensees were permitted to
    choose (i) reamortization of principal and interest installment
    payments over a ten-year period; (ii) an amnesty option wherein the
    licensee would surrender any licenses it chose to the Commission for
    subsequent auction and, in return, have all of the outstanding debt
    on those licenses forgiven; or (iii) a prepayment option pursuant to
    which the licensee could retain or return as many licenses it
    desired *Id*. at 1518-1529 ¶¶ 33-54.

[^113]: *See, e.g.,* Wireless Telecommunications Bureau Grants Consent
    to Assign 218-219 MHz Service License, *Public Notice*, DA 01-865
    (April 6, 2001).

[^114]: *See* 47 C.F.R. § 1.2111(c), (d).

[^115]: 47 C.F.R. § 1.948(d).