**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. 0003382234          |
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| NatTel, LLC Petition to Deny     | ) |                              |
| Application of Puerto Rico       | * |                              |
| Telephone Company, Inc. for 700  | * |                              |
| MHz Band Licenses, Auction No.   |   |                              |
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**ORDER**

**Adopted:** January 16, 2009 **Released:** January 16, 2009

By the Chief, Mobility Division, Wireless Telecommunications Bureau:

# INTRODUCTION

1.  In this *Order*, we consider a petition to deny[^1] filed on April
    29, 2008, by NatTel, LLC (NatTel) against the application of Puerto
    Rico Telephone Company, Inc. ("PRTC") for 700 MHz Band licenses for
    which it was the high bidder in Auction No. 73.[^2] For the reasons
    stated below, we hereby deny the petition to deny filed by NatTel
    against PRTC's Application.

# BACKGROUND

2.  PRTC is the winning bidder from Auction 73 of two licenses in the
    Lower 700 MHz Band---the A-Block license in the Puerto Rico and
    Virgin Islands BEA (BEA174) and the B-Block license in the San
    Juan-Caguas, Puerto Rico CMA (CMA091).[^3] PRTC is a wireless and
    wireline service provider that is wholly-owned and controlled by
    América Móvil, S.A.B. de C.V. ("Móvil") through several indirect
    subsidiaries.[^4] Móvil is a publicly-traded corporation organized
    under the laws of Mexico.[^5] Carlos Slim Helú and certain members
    of his family directly and indirectly hold approximately 31 percent
    of the equity interests and 64.5 percent of the voting interests in
    Móvil.[^6] PRTC notes that the Commission has previously found that
    Móvil is ultimately controlled by Carlos Slim Helú.[^7]

3.  On April 2, 2008, PRTC filed the required Application to obtain the
    licenses for which it was the high bidder in Auction 73, and the
    Application references the ownership information submitted in its
    Ownership Report, FCC Form 602, filed on January 2, 2008.[^8] The
    Application appeared on public notice announcing that it was
    accepted for filing and that petitions to deny were due on May 2,
    2008.[^9] On April 29, 2008, NatTel filed a Petition to Deny against
    PRTC's application for the licenses won in Auction 73.[^10] In its
    Petition, NatTel argues that Móvil and PRTC lack the basic character
    qualifications to be granted the Auction 73 licenses.[^11] NatTel
    further argues that a grant of the licenses would be inconsistent
    with the public interest, convenience, and necessity,[^12] and that
    the Commission should deny the licenses or designate the application
    for hearing.[^13] Finally, NatTel argues that PRTC's failure to
    identify any real party in interest in the application is a
    misrepresentation and omission that additionally justifies
    disqualification of the applicant.[^14]

4.  PRTC filed an Opposition to NatTel's Petition on May 9, 2008, asking
    the Commission to dismiss or deny NatTel's Petition and to proceed
    to grant PRTC's application.[^15] In response, NatTel filed a Reply
    to PRTC's Opposition on May 16, 2008, maintaining that the
    Commission should deny PRTC's application, designate the application
    for hearing, or condition the grant of the licenses upon the outcome
    of NatTel's pending litigation against Móvil.[^16]

# DISCUSSION

5.  NatTel asserts that it was founded in 1995 to participate in
    Personal Communications Service (PCS) Auction No. 5, and was focused
    on the Caribbean wireless telecommunications market.[^17] Through
    several subsequent transactions, NatTel became the party in control
    of Oceanic Digital Communications, Inc. ("ODC"), the first digital
    wireless telecommunications operator in the Caribbean.[^18] NatTel
    notes that in 2000, its control of ODC "shifted from NatTel to
    S.A.C. Capital," a hedge fund located in Stamford, Connecticut,
    which has slowly liquidated ODC and sold all of ODC's assets,
    including the sale of ODC's Jamaica operation ("MiPhone") to Móvil
    in November 2007.[^19] According to NatTel, it has been involved in
    litigation with both ODC and its controlling shareholder, S.A.C.
    Capital, and these pending lawsuits are its primary assets as NatTel
    proceeds with a Chapter 11 bankruptcy case in Connecticut.[^20]

6.  NatTel's alleges in its lawsuits against Móvil, S.A.C. Capital, and
    others that the sale of ODC's Jamaican operation MiPhone to Móvil
    was unlawful and fraudulent.[^21] Specifically, NatTel argues that
    the transaction was intentionally structured to enable S.A.C.
    Capital "to misappropriate and divert to itself the entire \$75
    million in MiPhone sale proceeds to the detriment of NatTel, with
    Móvil being rewarded by being able to acquire MiPhone for
    substantially less than its fair market value."[^22] According to
    NatTel, a "sham entity" was created as the sole shareholder of
    MiPhone, Móvil paid \$9 million to MiPhone's sole direct
    shareholder, and the remaining \$66 million to S.A.C. Capital---with
    even the \$9 million eventually diverted back to S.A.C. Capital for
    payment of alleged "debt" that, according to NatTel, has not yet
    been fully explained.[^23] In effect, claims NatTel, the entire \$75
    million purchase of MiPhone was diverted to and misappropriated by
    S.A.C. Capital to the detriment of NatTel, and the supposed "debt"
    payment from the sole shareholder back to S.A.C. Capital was
    fraudulent.[^24]

7.  In addition to this diversion of funds and undervaluation of the
    MiPhone transaction, NatTel notes that there was a "no-shop" clause
    in the sale contract with Movil, whereby ODC and S.A.C. Capital were
    not permitted to seek out or entertain higher and better offers for
    MiPhone, and no "fiduciary out" exception was included that would
    allow the selling companies' controlling shareholders and directors
    to honor their fiduciary duties to minority shareholders to seek
    such offers.[^25] NatTel argues that the "no-shop" clause was
    governed by New York law pursuant to the purchase agreement itself,
    and that the clause violated New York law because the ODC board of
    directors did not establish an independent committee to review the
    fairness of the transaction to ODC's minority shareholders such as
    NatTel.[^26]

8.  NatTel adds that prior to the consummation of the MiPhone
    transaction involving Móvil, NatTel identified an entity named
    Digicel as a potential funding source through which NatTel could
    make a counter-bid for MiPhone.[^27] NatTel alleges that Digicel
    decided not to participate in the counter-bid due to potential
    complications caused by the "no-shop" clause together with a letter
    issued by Móvil threatening litigation if Digicel interfered with
    the Móvil-MiPhone transaction.[^28] When Digicel backed away from
    discussion regarding the funding of the counter-bid, NatTel was
    unable to submit a counter-bid and the Móvil-MiPhone transaction was
    consummated.[^29]

9.  Further, NatTel argues that it suffered actual damages in the amount
    of \$75-100 million for all of these reasons, and was subjected to
    tortious interference with its business expectancy in the MiPhone
    sale including a loss of its fair share of the proceeds,[^30] loss
    of the potential Digicel funding source due to the threat letter
    from Móvil,[^31] the unlawful "no-shop" clause,[^32] breach of
    fiduciary duty toward NatTel under Connecticut and New York common
    law,[^33] and Móvil's use of foreign citizenship to avoid United
    States laws and legal proceedings despite extensive operations in
    the United States including ownership of TracFone, the largest
    prepaid cellular provider in the United States.[^34] NatTel
    accordingly argues that these character issues justify the denial of
    PRTC's application, and that a grant of the licenses would be
    inconsistent with the public interest, convenience, and necessity.

10. Finally, NatTel adds that PRTC failed to answer Question 28 in its
    Form 601 Application, which asks for the name of any real party in
    interest, amounting to a misrepresentation or omission that
    additionally justifies disqualification of the applicant.[^35]
    NatTel argues that even with a disclosure elsewhere that Móvil is an
    indirect 100 percent owner, there is still no certainty as to who is
    the ultimate real party in interest---specifically, who owns and
    controls Móvil, and how such control is exercised.[^36]

11. In its Opposition, PRTC argues that NatTel's Petition raises no
    material questions of fact regarding PRTC's qualifications to be a
    Commission licensee, and merely raises a non-adjudicated, private
    dispute that is immaterial to the application for Auction 73
    licenses.[^37] PRTC asserts that the Commission consistently has
    refused to take such private disputes into consideration when acting
    on licensing applications, particularly where the appropriate remedy
    is money damages, and the right to such damages would not be
    affected by a grant of an application.[^38] PRTC also argues that it
    has not engaged in any of the types of misconduct that are grounds
    for dismissal based on basic character qualifications: violation of
    Commission rules and regulations; already-adjudicated non-Commission
    misconduct including fraud; any felony; or egregious
    misconduct.[^39] Finally, PRTC argues that contrary to NatTel's
    accusation, Móvil's 100 percent indirect ownership interest in PRTC
    is sufficiently and directly disclosed in PRTC's Form 602
    application, and indirectly disclosed in Exhibit A to PRTC's Form
    601 application by reference to Form 602.[^40]

12. Based on the record before us, we deny NatTel's Petition. The
    Commission has consistently held that it will consider certain forms
    of adjudicated, non-Commission related misconduct that includes: (1)
    felony convictions; (2) fraudulent misrepresentation to government
    units; and (3) violations of antitrust or other laws protecting
    competition.[^41] The Commission refrains from making decisions
    based on mere allegations of misconduct where those allegations are
    in the process of being adjudicated by another agency or court.[^42]
    However, the Commission has stated that it might consider
    non-Commission related misconduct prior to adjudication by another
    body in "circumstances in which an applicant has engaged in . . .
    misconduct so egregious as to shock the conscience and evoke almost
    universal disapprobation.[^43] The Commission also has consistently
    held that private contractual disputes are beyond its regulatory
    jurisdiction and must be resolved in a local court of competent
    jurisdiction.[^44] Further, with respect to Commission-related
    conduct, the Commission has held that it would treat any violation
    of any provision of the Communications Act or the Commission's rules
    as predictive of an applicant's future truthfulness and reliability
    and, thus, as having a bearing on the applicant's character
    qualifications.[^45]

13. We agree that the ongoing dispute involving NatTel and Móvil, S.A.C.
    Capital, and others is outside the scope of our review of PRTC's
    Auction 73 application. Although, as discussed above, the private
    nature of their litigation does not totally exempt it from our
    assessment of PRTC's or Móvil's character qualifications *per se*,
    we find that there is nothing in the record to justify denial of
    PRTC's application on the basis of character qualifications. NatTel
    appears to concede that its allegations against Móvil relate to
    misconduct, prior to adjudication by a court, that is not related to
    the Commission, its regulations, and related laws.[^46] We agree
    with PRTC, that with the exception of misconduct "so egregious as to
    shock the conscience and evoke almost universal
    disapprobation,"[^47] the Commission does not assess character
    qualifications in advance of a pending adjudication that would
    resolve non-Commission-related issues---especially where the remedy
    solely would be monetary damages. In this context, we disagree with
    NatTel's argument that PRTC or Móvil has engaged in such egregious
    misconduct as to rise above that limitation. We find that the
    misconduct alleged by NatTel is not of the nature that would prompt
    our immediate concern prior to the resolution of the pending
    judicial proceedings.[^48]

14. We also find that PRTC has met the requirement to disclose any real
    party in interest. NatTel appears to concede that PRTC, in its Form
    601, references a disclosure in Form 602 that Móvil indirectly owns
    100 percent of PRTC.[^49] However, NatTel argues that an indirect
    100-percent owner is not necessarily the applicant's real party in
    interest, and that here, there is a lack of disclosure as to "who or
    what owns and controls Móvil, and how that control is
    exercised."[^50] While acknowledging that PRTC did disclose the
    identity of the Slim family who holds equity and voting interest in
    Móvil, NatTel argues that further detail is necessary to meet the
    real-party-in-interest disclosure requirement, including who within
    that family exercises what kind of control, and how much.[^51]
    Further, NatTel introduces additional allegations of control with
    respect to the Slim family ownership of Móvil, including a trust
    that holds shares for the family's benefit and a real estate holding
    company.[^52]

15. We find that PRTC has satisfied the ownership disclosure
    requirements under section 1.2112 of the Commission's rules.[^53]
    Generally, section 1.2112 requires the disclosure of the real party
    or parties in interest and any party holding a 10 percent or greater
    direct or indirect interest in an applicant.[^54] PRTC reports in
    its Form 602 filed on September 16, 2008 that "although no
    individual member of the Slim family directly or indirectly owns a
    10 \[percent\] or greater equity interest in . . . Móvil, the
    controlling interest in . . . Móvil's shares is held by the Slim
    family. . . .[^55] PRTC further states that "\[t\]here are no other
    beneficial owners of a 10 \[percent\] or greater equity interest in
    . . . Móvil."[^56] Although PRTC does not designate a real party in
    interest in its application, we are satisfied by PRTC's disclosure
    in its Form 602 that Carlos Slim Helú and his family collectively
    hold the majority of the voting interests in Móvil and that Carlos
    Slim Helú has control of Móvil, as stated in the Application. The
    instructions to the Form 601 state that "\[i\]f a party other than
    the Applicant is the real party in interest (*e.g.,* a parent or
    other controlling entity), enter that party's name in \[response to
    Question 28\]. If there is more than one real party in interest,
    attach an exhibit detailing all parties in interest."[^57] Although
    there is no exhibit clearly identifying the real party or parties in
    interest, the information contained in the attachments to the
    Application and Form 602 explain that Carlos Slim Helú has control
    of Móvil, which, in turn, is in control of PRTC. Since this
    information is disclosed, we do not find that there has been a
    misrepresentation to the Commission that impacts PRTC's eligibility
    to be a Commission licensee. Further, we only have mere allegations
    by NatTel, and no factual support, that the trust and real estate
    holding company that NatTel discusses are in control and a real
    party in interest of Móvil. In fact, there is no evidence in the
    record to suggest that these entities are even required to be
    disclosed under any of the provisions in section 1.2112 of the
    Commission's rules. Accordingly, for the reasons discussed herein,
    we deny NatTel's Petition.

# ORDERING CLAUSES

16. Accordingly, IT IS ORDERED, pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    that the petition to deny filed by NatTel, LLC on April 29, 2008, IS
    DENIED, and application File No. 0003382234, filed on April 2, 2008,
    SHALL BE PROCESSED consistent with this Order and the Commission\'s
    Rules.

17. 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

                                                            Roger S.
Noel

                                                           Chief,
Mobility Division

> Wireless Telecommunications Bureau

[^1]: NatTel, LLC Petition to Deny Application of Puerto Rico Telephone
    Company, Inc. (filed Apr. 29, 2008) ("NatTel Petition").

[^2]: Application, FCC Form 601, File No. 0003382234 (filed April 2,
    2008) ("Application").

[^3]: *See* Auction of 700 MHz Band Licenses Closes, Winning Bidders
    Announced for Auction 73, *Public Notice*, 23 FCC Rcd 4572 (2008).

[^4]: *See* Application; Puerto Rico Telephone Company, Ownership
    Disclosure Form 602, File No. 0003273343, Indirect Ownership
    Attachment at 1 (filed Jan. 2, 2008) ("January 2, 2008 Form 602").

[^5]: January 2, 2008 Form 602, Indirect Ownership Attachment at 2.

[^6]: *Id*. PRTC filed a more current Form 602 on September 9, 2008. In
    this Form 602, PRTC reports that Carlos Slim Helú and certain
    members of his immediate family directly and indirectly now hold an
    approximate 30 percent equity interest and 66 percent voting
    interest in Móvil. Puerto Rico Telephone Company, Ownership
    Disclosure Form 602, File No. 0003573775, Attachment: Revised
    Description of Direct and Indirect Ownership at 2 (filed Sept. 9,
    2008; exhibit dated July 16, 2008) ("September 9, 2008 Form 602").

[^7]: *See* Application, Exhibit B, Request for Declaratory Ruling at 3.

[^8]: *See* Application, Exhibit A; January 2, 2008 Form 602.

[^9]: Wireless Telecommunications Bureau Announces that Applications for
    700 MHz Band Licenses Are Accepted for Filing, *Public Notice*, 23
    FCC Rcd 6722 (WTB 2008).

[^10]: NatTel asserts standing to challenge PRTC's application based on
    NatTel's own participation in Auction 73, and claims it thus has
    status as a "party in interest" within the meaning of Section
    309(d)(1) of the Communications Act of 1934, as amended ("the Act").
    NatTel Petition at 1, citing 47 U.S.C. § 309(d)(1).

[^11]: *Id.* at 2.

[^12]: *Id.* at 2, citing U.S.C. § 309(d)(1), 12-13.

[^13]: *Id.*

[^14]: NatTel Petition at 2, 12.

[^15]: Puerto Rico Telephone Company, Inc. Opposition to Petition to
    Deny of NatTel, LLC at 8-9 (filed May 9, 2008) ("PRTC Opposition").

[^16]: NatTel, LLC Reply to Opposition of Puerto Rico Telephone Company,
    Inc. at 5 (filed May 16, 2008) ("NatTel Reply").

[^17]: NatTel Petition at 3.

[^18]: *Id.* NatTel states that, in 1997, it founded Paradise
    Communications, Inc. ("Paradise") to pursue wireless opportunities
    in the Caribbean. Paradise merged with a Bahamian international
    business company with the same name in December 1998. The surviving
    entity changed its name to ODC. NatTel further states that, under
    its direction, "ODC became the first digital wireless telecom
    operator in the Caribbean in 1998."

[^19]: *Id.* at 3-4.

[^20]: *Id.* at 4.

[^21]: *Id.* (citing *NatTel, LLC v. SAC Capital Associates, LLC, et
    al.*, No. FST-CV-08-5007031-S (X08) (J.D. of Stamford)).

[^22]: NatTel Petition at 5.

[^23]: *Id.*

[^24]: *Id.* at 5-6.

[^25]: *Id.* at 6.

[^26]: *Id.* at 6-7. We note that NatTel does not, however, cite to any
    specific New York law that would invalidate the "no-shop" clause.

[^27]: *Id.* at 7.

[^28]: *Id.*

[^29]: *Id.*

[^30]: *Id.* at 8.

[^31]: *Id.* at 8-9.

[^32]: *Id.* at 9.

[^33]: *Id.* at 9, 10. NatTel argues that under Connecticut law,
    specifically the Connecticut Unfair Trade Practices Act, Móvil is
    liable to NatTel for treble punitive damages in an amount up to
    \$300 million. *Id.* at 10.

[^34]: *Id.* at 10-12.

[^35]: *Id.* at 12.

[^36]: NatTel Reply at 2-3. We note that NatTel sent the Bureau a letter
    requesting a copy of a letter that the Bureau sent to PRTC regarding
    PRTC's short-form application for Auction 78, alleging that the
    Bureau's letter may shed light on PRTC's ownership issues in Auction
    73. *See* Letter from Jack E. Robinson, President, NatTel, LLC,
    Emergency Request for Information (filed July 8, 2008). As Mr.
    Robinson's informal request is solely based upon speculation and is
    not made pursuant to any recognized administrative process such as a
    Freedom of Information Act request, we will not introduce the Bureau
    letter into the record. We do not make such letters public because
    they contain sensitive information, and Mr. Robinson's request has
    not made the requisite case to get access to the letter. Thus, we
    deny Mr. Robinson's request

[^37]: PRTC Opposition at 1.

[^38]: *Id.* at 2-4.

[^39]: *Id.* at 5-6. PRTC argues that even if there were non-Commission
    misconduct, it would have to be adjudicated as such before the
    Commission could consider it in an assessment of PRTC's character,
    and NatTel itself admits that the alleged misconduct of America
    Móvil currently is being litigated. *Id.* at 6, 7.

[^40]: *Id.* at 7-8.

[^41]: *See, e.g.,* AT&T Inc. and BellSouth Corporation Application for
    Transfer of Control, WC Docket No. 06-74, Memorandum Opinion and
    Order, 22 FCC Rcd 5662, 5756 ¶ 191 (2007) ("*AT&T-BellSouth
    Order*"); Applications of AT&T Wireless Services, Inc. and Cingular
    Wireless Corporation, WT Docket No. 04-70, *Memorandum Opinion and
    Order*, 19 FCC Rcd 21522, 21548 ¶ 47 (2004) ("*Cingular-AT&T
    Wireless Order*").

[^42]: *See, e.g.,* *Cingular-AT&T Wireless Order*, 19 FCC Rcd at
    21548-49 ¶ 49 ("The Commission's long-held position \[is\] that
    there 'must be an ultimate adjudication before an appropriate trier
    of fact, either by a government agency or court, before we will
    consider the activity in our character determinations."); Letter
    from Peter H. Doyle, Chief, Audio Division, Media Bureau, Federal
    Communications Commission, to Timothy K. Brady, Esq., Womble Carlyle
    Sandridge & Rice, P.L.L.C, 20 FCC Rcd 11987, 11993 (2005).

[^43]: Policy Regarding Character Qualifications in Broadcast Licensing,
    *Report and Order and Policy Statement*, 102 FCC 2d 1179, 1205 n.60
    (1986) ("Character Policy Statement"), *recon. granted in part,
    denied in part*, 1 FCC Rcd 421 (1986), *modified*, 5 FCC Rcd 3252
    (1990), *recon. granted in part*, 6 FCC Rcd 3448 (1991), *modified
    in part*, 7 FCC Rcd 6564 (1992). The Commission reserved judgment as
    to what type of misconduct would meet this standard, noting that
    such determinations would be made "with regard to a specific
    application involving specific misconduct." Character Policy
    Statement, 102 FCC 2d at 1205 n.60. *See also* Williamsburg County
    Broadcasting Corp., MM Docket No. 88-536, *Order to Show Cause*, 5
    FCC Rcd 3034, 3035 ¶ 13 ( 1996) ("*Williamsburg County
    Broadcasting*".

[^44]: *See, e.g.,* O.D.T. International, *Memorandum Opinion and
    Order*, 9 FCC Rcd 2575, 2576 ¶ 9 (1994).

[^45]: *See, e.g.,* *AT&T-BellSouth Order*, 22 FCC Rcd at 5756 ¶ 191;
    *Cingular-AT&T Wireless Order*, 19 FCC Rcd at 21548 ¶ 47.

[^46]: *See* NatTel Reply at 4.

[^47]: PRTC Opposition at 6, citing Character Policy Statement, 102 FCC
    2d at 1205 n.60 (1986).

[^48]: *Compare* Application of Multimedia, Inc. (Transferor), and
    Gannett Co., Inc. (Transferee), *Memorandum Opinion and Order*, 11
    FCC Rcd 4883, 4896 ¶ 37 (1995) (unadjudicated antitrust and labor
    allegations are not "egregious misconduct"), Application of Press
    Broadcasting Company, Inc., Assignor, and Paxson Broadcasting of
    Orlando, L.P., Assignee, *Memorandum Opinion and Order*, 13 FCC Rcd
    1026, 1029 ¶ 11 (1997) (unadjudicated allegations of tax fraud are
    not "egregious misconduct"), and USA Broadcasting, Inc. (Transferor)
    and Univision Communications, Inc. (Transferee), 19 FCC Rcd 4253,
    4256 ¶ 9 (2005) (unadjudicated allegations involving contract
    interpretation is not "egregious misconduct"), *with* Contemporary
    Media, Inc., MM Docket No. 95-154, *Order to Show Cause and Notice
    of Apparent Liability*, 10 FCC Rcd 13685, 13687 ¶ 9 (1995)
    (allegations of child sexual abuse and assault may constitute
    egregious misconduct) *and* *Williamsburg County Broadcasting*, 5
    FCC Rcd at 3035 ¶¶ 13-14 (allegations of drug trafficking may
    constitute egregious misconduct).

[^49]: *See* NatTel Reply at 2.

[^50]: *See id.*

[^51]: *See id.* at 2-3.

[^52]: *See id.* at 3 n.11.

[^53]: 47 C.F.R. § 1.2112.

[^54]: *Id.* § 1.2112 (a)(1), (2), (6).

[^55]: September 9, 2008 Form 602, Exhibit, Revised Description of
    Direct and Indirect Ownership of PRTC at 2.

[^56]: *Id*.; January 2, 2008 Form 602, Indirect Ownership Attachment at
    2.

[^57]: Federal Communications Commission, Form 601, Information and
    Instructions (Feb. 2008), *available at*
    http://www.fcc.gov/Forms/Form601/601main.pdf (last visited Aug. 20,
    2008).