**DA 04-2525**

**August 12, 2004**

**WIRELESS TELECOMMUNICATIONS BUREAU AND INTERNATIONAL BUREAU GRANT
CONSENT FOR THE TRANSFER OF CONTROL OF LICENSES AND AUTHORIZATIONS HELD
BY NEWCOMM WIRELESS SERVICES, INC. FROM CLEARCOMM, L.P. TO TEM PUERTO
RICO, INC.**

**WT Docket No. 02-366**

Pursuant to sections 4(i), 214(a) and 310(d) of the Communications Act
of 1934, as amended ("Act"),[^1] and sections 0.331 and 0.261 of the
Commission's rules,[^2] the Wireless Telecommunications Bureau and
International Bureau approve the applications listed below requesting
Commission consent to transfer control of broadband Personal
Communications Services ("PCS") and Fixed Microwave Services licenses
and an international section 214 authorization held by NewComm Wireless
Services, Inc. ("NewComm") from ClearComm, L.P. to TEM Puerto Rico, Inc.
("TEM PR"). No comments or petitions to deny were received in response
to the Public Notice announcing that the applications had been accepted
for filing.[^3] On March 25, 2004, the Department of Homeland Security
("DHS"), Department of Justice ("DOJ"), and Federal Bureau of
Investigation ("FBI") submitted a Petition to Adopt Conditions to
Authorizations and Licenses[^4] ("Petition") advising the Commission
they have no objection to grant of the applications and petition for
declaratory ruling filed in this proceeding provided the Commission
conditions grant on compliance with the provisions of the Network
Security Agreement, dated May 14, 2004 ("Network Security Agreement"),
entered into between NewComm, TEM PR, and Telefonica Moviles, S.A.
("Moviles"), on the one hand, and the DHS, DOJ, and FBI, on the other.
The Petition further states that NewComm, TEM PR and Moviles do not
object to the grant of the Petition. The Network Security Agreement is
attached to this Public Notice as Appendix A.

The Wireless Telecommunications Bureau and International Bureau find,
upon consideration of the record, that the proposed transfers of control
will serve the public interest, convenience, and necessity.[^5]
Consistent with Commission precedent, the Bureaus accord the appropriate
level of deference to the Executive Branch's expertise on national
security and law enforcement issues. The Network Security Agreement
addresses the Executive Branch agencies' stated concerns regarding
national security, law enforcement, and public safety. Accordingly, we
grant the Petition and grant the applications listed below subject to
compliance by NewComm, TEM PR, and Moviles with the terms of the Network
Security Agreement.

Pursuant to sections 4(i) and 310(b)(4) of the Act and section 0.261 of
the Commission's rules, the International Bureau finds that it would not
serve the public interest to deny the common carrier radio license
applications on the basis of proposed indirect foreign ownership of
NewComm in excess of the 25 percent benchmark of section 310(b)(4). Upon
consummation of the proposed transaction, NewComm, a U.S. corporation,
will be 50.1 percent owned and controlled by TEM PR, also a U.S.
corporation. In a petition for declaratory ruling filed pursuant to
section 310(b)(4), TEM PR states that it is a direct wholly-owned
subsidiary of Moviles, a publicly-traded Spanish corporation that is
controlled by Telefonica, S.A. ("Telefonica"), also a publicly-traded
Spanish corporation. According to the petition, Telefonica owns 92.75
percent of Moviles (71.25 percent directly and 21.50 percent indirectly
through Telefonica's wholly-owned subsidiary, Telefonica Internacional,
S.A. ("TISA")), with the remaining 7.3 percent traded on the Spanish
continuous market and the Madrid, Barcelona, Bilbao and Valencia stock
exchanges, as well as the New York Stock Exchange. TEM PR states that
Telefonica's shares are also publicly traded in Spain on the Madrid,
Barcelona, Bilbao and Valencia stock exchanges, as well as on the stock
exchanges in London, Paris, Frankfurt, Tokyo, New York, Lima, Buenos
Aires, Sao Paulo, and the SEAQ International Exchange in London. TEM PR
asserts that Moviles and Telefonica each has its principal place of
business in Spain, which is a World Trade Organization Member.

Pursuant to section 310(b)(4) of the Act and the Commission's "open
entry" standard for investment by WTO Members in U.S. common carrier
radio licensees,[^6] and upon consideration of the record, the
International Bureau finds that TEM PR is entitled to a presumption that
its 50.1 percent controlling investment in NewComm does not raise
competition concerns, and there is no evidence in the record that would
rebut this presumption. We also determine that the agreement between the
parties, the DHS, DOJ, and FBI addresses and resolves other factors
relevant to our public interest analysis under section 310(b)(4).

Accordingly, we grant the petition for declaratory ruling filed by TEM
PR to permit indirect foreign ownership of NewComm in excess of the 25
percent benchmark of section 310(b)(4). Specifically, this ruling
permits the indirect foreign ownership of NewComm by Moviles and its
Spanish shareholders, including Telefonica and its Spanish shareholders,
in an amount up to and including a controlling 50.1 percent equity and
voting interest. NewComm may acquire up to and including an additional,
aggregate 25 percent indirect equity and/or voting interest from other
foreign individuals and entities without seeking further Commission
approval under section 310(b)(4) subject to the following two
conditions: (1) non-Spanish foreign ownership of Moviles and Telefonica
shall be included in the total indirect foreign ownership of NewComm,
and (2) no single foreign individual or entity, with the exception of
Moviles and Telefonica, may acquire indirect ownership of NewComm in
excess of 25 percent without further Commission approval. We emphasize
that the specific ruling we issue to NewComm will require that the
licensee and its publicly-traded parent companies, Moviles and
Telefonica, continue to monitor NewComm's attributable foreign equity
and voting interests, and calculate these interests consistent with the
attribution principles enunciated by the Commission.[^7] This ruling is
conditioned on compliance with the provisions of the Network Security
Agreement, which is attached to this Public Notice as Appendix A.

# APPLICATIONS

## SECTION 310(d) APPLICATIONS

The Wireless Telecommunications Bureau consents to the following
applications to transfer control of PCS and Fixed Microwave Services
licenses.

**[File Number]{.underline} [Licensee]{.underline} [Lead Call
Sign]{.underline}**

0001049003 NewComm Wireless Services, Inc. KNLF736

0001048972 NewComm Wireless Services, Inc. WPQN608

Consent to application file no. 0001049003 is conditioned upon full
payment of the required unjust enrichment payments on or before the
consummation date.[^8]

## INTERNATIONAL SECTION 214 APPLICATION 

The International Bureau consents to the following application to
transfer control of an international section 214 authorization held by
NewComm from ClearComm to TEM PR. The international section 214
authorization held by NewComm is modified to exclude authority to
provide service between the United States and Cuba, effective upon the
date of consummation of the proposed transfer of control.[^9]

[Authorization Holder]{.underline} [Authorization Number]{.underline}
[File Number]{.underline}

NewComm Wireless Services, Inc. ITC-214-19990615-00426
ITC-T/C-20021015-00512

# Petition for DECLARATORY RULING

The petition for declaratory ruling under section 310(b)(4) of the Act,
File No. ISP-PDR-20021015-00035, is granted to the extent specified in
this Public Notice.

Pursuant to section 1.103 of the Commission's rules,[^10] the consent
granted herein is effective upon release of this Public Notice. By this
approval, the parties are authorized to consummate the transaction
described in their applications.[^11] Pursuant to sections 1.106(f) and
1.115(a) of the Commission's rules,[^12] petitions for reconsideration
and applications for review may be filed within thirty days of the
release of this Public Notice. Additionally, we remind parties that a
transfer shall not be considered complete until the underlying
transaction closes and all conditions set forth in the grant documents,
including this Public Notice and the application, are met. Upon receipt
of the notification required by section 1.948(d) of the Commission\'s
rules,[^13] and satisfaction of all requisite conditions, the Commission
will consider the transfer complete.  Failure of the parties to comply
with section 1.948(d) of the Commission\'s rules, or any specific
condition described above, will result in automatic cancellation of the
Commission\'s approval, and dismissal of the underlying application(s).

For further information, contact Erin McGrath, Mobility Division,
Wireless Telecommunications Bureau, at (202) 418-7240, or Rita
Cookmeyer, Auctions and Spectrum Access Division, Wireless
Telecommunications Bureau, at (202) 418-0660 (Part 24 only); Linda Ray,
Broadband Division, Wireless Telecommunications Bureau, at (202)
418-2487 (Part 101 only); or Francis Gutierrez or Susan O'Connell,
Policy Division**,** International Bureau, at (202) 418- 1460
(international section 214 authorization and petition for declaratory
ruling only).

**-FCC-**

**Appendix A**

[^1]: 47 U.S.C. §§ 154(i), 214(a), 310(d).

[^2]: 47 C.F.R. §§ 0.331, 0.261.

[^3]: *See* NewComm Wireless Services, Inc., ClearComm, L.P., and TEM
    Puerto Rico, Inc*.*, *Public Notice*, WT Docket No. 02-366, 17 FCC
    Rcd 23,738 (2002). The parties filed an application seeking consent
    to transfer control of microwave authorizations on July 23, 2004,
    File No. 0001817003. This application was placed on public notice on
    July 28, 2004. *See* Wireless Telecommunications Bureau Assignment
    of License Authorization Applications, Transfer of Control of
    Licensee Applications, and De Facto Transfer Lease Applications
    Accepted for Filing, *Public Notice*, Report No. 1895 (rel. July 28,
    2004). This recently filed application will be addressed in a
    subsequent public notice.

[^4]: Department of Homeland Security, Department of Justice, and
    Federal Bureau of Investigation, Petition to Adopt Conditions to
    Authorization and Licenses, WT Docket No. 02-366 (dated May 25,
    2004).

[^5]: *See* 47 U.S.C. §§ 214(a), 310(d).

[^6]: *See* Rules and Policies on Foreign Participation in the U.S.
    Telecommunications Market, IB Docket No. 97-142, *Report and Order
    and Order on Reconsideration*, 12 FCC Rcd 23,891 (1997); Rules and
    Policies on Foreign Participation in the U.S. Telecommunications
    Market, IB Docket No. 97-142, *Order on Reconsideration*, 15 FCC Rcd
    18,158 (2000).

[^7]: *See* Vodafone Americas Asia Inc. (Transferor) and Globalstar
    Corporation (Transferee), *Order and Authorization*, 17 FCC Rcd.
    12,849, 12,857-858, ¶¶ 23-26 (IB 2002) (citing Request for
    Declaratory Ruling Concerning the Citizenship Requirements of
    Sections 310(b)(3) and (4) of the Communications Act of 1932, as
    amended, *Declaratory Ruling*, FCC 85-295, 103 F.C.C.2d 511 (1985),
    *recon. in part*, 1 FCC Rcd. 12 (1986); BBC License Subsidiary L.P.,
    *Memorandum Opinion and Order*, 10 FCC Rcd 10968 (1995)).

[^8]: *See* 47 C.F.R. § 1.2111(c).

[^9]: *See* Application for Consent to Transfer Control, File No.
    ITC-T/C-20020105-00512, at p. 11 ("Cuba ... is not a destination
    country for purposes of this Application...."); *see also* Letter
    from Heidi Anderson, Counsel to TEM Puerto Rico, Inc., to Ms.
    Cynthia Bryant, Policy Division, International Bureau, FCC, dated
    April 30, 2002 (stating that calls to Cuba can and would be blocked
    at the NewComm system switch).

[^10]: 47 C.F.R. § 1.103.

[^11]: Section 1.948(d) of the Commission\'s rules provides that "the
    transaction must be consummated and notification provided to the
    Commission within 180 days of public notice of approval, and
    notification of consummation must occur no later than 30 days after
    actual consummation." 47 C.F.R. § 1.948(d). Section 63.24(e) of the
    Commission's rules requires that the "transferee shall notify the
    Commission no later than 30 days after either consummation of the
    proposed ...transfer of control, or a decision not to
    consummate...." 47 C.F.R. § 63.24(e)(4).

[^12]: 47 C.F.R. §§ 1.106(f), 1.115(a).

[^13]: 47 C.F.R. § 1.948.