**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Paging Network of Virginia Inc. ) File No. 28046-CN-P/L-94

)

For License for Station KNKV201 )

for Narrowband Nationwide Personal )

Communications Service on Frequency )

Block N-1 )

**MEMORANDUM OPINION AND ORDER**

**Adopted: March 7, 2000 Released: April 6, 2000**

**By the Commission:**

I.  **INTRODUCTION**

1\. In this Order, we deny the Application for Review filed by Edward M.
Johnson (Johnson) on February 3, 1995, and affirm the Wireless
Telecommunications Bureau's (Bureau) Order granting Paging Network of
Virginia (PNV)[^1] a nationwide narrowband personal communications
services (PCS) license.[^2]

## BACKGROUND

2\. On July 29, 1994, the Commission completed its auction for
nationwide narrowband PCS licenses, in which PNV was the high bidder for
three licenses.[^3] PNV's applications for these three licenses were
accepted for filing on August 17, 1994.[^4] On September 13, 1994,
Johnson filed a petition to deny the grant of one of PNV's three
narrowband applications.[^5] On January 9, 1995, the Bureau released an
order under delegated authority that denied Johnson's petition to deny
and granted PNV's narrowband PCS application.[^6] On February 3, 1995,
Johnson filed an application for review seeking review and reversal of
the Bureau's order denying his petition to deny. In Johnson's
Application for Review, he renews previous objections and raises new
objections against our auction rules, PNV, and PNV's application for a
narrowband PCS license. As discussed below, we affirm the findings of
the Bureau Order and deny Johnson's Application for Review.

### 

### III. DISCUSSION

3\. Johnson's Application for Review renews several objections that
Johnson raised in his petition to deny against our narrowband PCS
auction rules, PNV's financial qualifications, and PNV's license
application. Specifically, Johnson argues that mutual exclusivity in the
narrowband PCS Block N-1 auction was not established by the filing of
Form 175 by auction participants, that our upfront payment rule was
violative of the Administrative Procedures Act, that PNV lacks the
requisite financial qualifications to hold a narrowband PCS license, and
that PNV violated section 24.413 of the Commission's rules.[^7] Upon
review of these contentions, we find that Johnson has not provided any
basis for reversing the Bureau's conclusion and we therefore affirm the
Bureau's decision. In addition, Johnson argues for the first time that
the Commission's rules prohibiting settlements and settlement
negotiations among narrowband PCS auction applicants violate section
309(j)(6) of the Communications Act.[^8] We decline to consider
Johnson's objection concerning settlement agreements because Johnson
should have raised any general objections concerning settlement
agreements in a timely petition for reconsideration of our auction
rules, and not in an application for review of PNV's license
application.

4\. Finally, Johnson argues that PNV engaged in misrepresentation in its
September 1994 opposition to Johnson's petition to deny. Specifically,
Johnson claims that PNV stated in its pleading that it had received
consent to acquire additional debt from PNV's debt security holders, and
further claims that PNV did not actually receive such consent until
November 1994, when PNV arranged to borrow additional money. [^9] As a
threshold matter, we note that Johnson could have raised this issue in
its reply to PNV's opposition but did not do so.[^10] Consequently, we
find that Johnson's misrepresentation allegation is untimely. Even if we
were to consider Johnson's claim on the merits, we find that Johnson has
failed to present sufficient evidence to support the allegation. First,
Johnson has not conclusively shown that the statement in PNV's
opposition regarding the debtholders was false: even if the debtholders
had to take additional steps before PNV acquired new debt, it is
possible that PNV reasonably anticipated that consent would be given.
Second, there is no showing of intent to deceive, *i.e*., that PNV
withheld relevant information, that it knew the information was
relevant, and that it intended to withhold that information.[^11]
Finally, the issue of whether the debtholders consented to PNV's
acquiring additional debt in September or November is a minor issue of
limited relevance to the merits of PNV's narrowband PCS application that
the Bureau concluded did not warrant further investigation. We find no
reason to reverse the Bureau's decision on this basis.

### ORDERING CLAUSES

5\. Accordingly, IT IS ORDERED that the Order of the Wireless
Telecommunications Bureau granting Paging Network of Virginia, Inc.'s
application on January 9, 1995, IS AFFIRMED.

6\. IT IS FURTHER ORDERED that, pursuant to section 5(c)(5) of the
Communications Act of 1934, as amended, 47 U.S.C. § 155(c)(5), and
section 1.115 of the Commission's rules, 47 C.F.R. § 1.115, the
Application for Review filed by Edward M. Johnson on February 3, 1995 IS
DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: PNV is a wholly owned subsidiary of Paging Network, Inc.
    (PageNet).

[^2]: Paging Network of Virginia, *Memorandum Opinion and Order*, 10 FCC
    Rcd 1016 (1995) (*Bureau Order*).

[^3]: *Public Notice*, Report No. PNWL-94-004 (August 2, 1994).

[^4]: *Public Notice*, Report No. PCS-NB-94-1 (August 17, 1994).

[^5]: Johnson did not file a petition to deny PNV's two other narrowband
    PCS applications.

[^6]: *Bureau Order*, 10 FCC Rcd at 1016.

[^7]: Application for Review at 2-4, 6.

[^8]: *Id.* at 3-4.

[^9]: *Id*. at 5-6. Johnson claims that PNV's September 28, 1994
    opposition to his petition to deny states that consent was received
    at this time. Johnson also claims that PNV did not actually receive
    consent to acquire additional debt from its debt security holders
    until November 1994, when PNV arranged to borrow additional money in
    December 1994.

[^10]: The filing deadline for Johnson's reply to PNV's opposition was
    October 11, 1994. However, Johnson raised the misrepresentation
    allegation on November 25, 1994, well past the deadline for filing
    replies.

[^11]: *See Fox Television Stations*, 10 FCC Rcd 8452, 8478 ¶ 60 (1995).