Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | FCC Form 490                 |
|                                  | * |                              |
| WESTERN MANAGEMENT CORPORATION   | ) | FCC File No. R375195         |
|                                  | * |                              |
| Application for Assignment of    | * | FCC File Nos. D129494 and    |
| Authorization or Consent to      |   | D129495                      |
| Transfer of Control of Licensee  | * |                              |
| for Call Signs WNJN327, WPER274, | * | FCC Form 405A                |
| WPET577 and WPAF615              | ) |                              |
|                                  | * |                              |
| Application for Renewal of       | * |                              |
| Station WPER274                  |   |                              |
|                                  | * |                              |
| Applications for Modification of | * |                              |
| Stations WPAF615 and WPET577     | ) |                              |
|                                  | * |                              |
| Application for Cancellation of  | * |                              |
| Station WPEK890                  |   |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: January 11, 2001 Released: January 16, 2001**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

**I. INTRODUCTION**

1.  We have before us a "Petition to Dismiss or Deny/Informal
    Objection," filed on behalf of Communication Technologies, Inc.
    (ComTech), relating to the above-captioned application filed by
    Western Management Corporation, seeking assignment or transfer of
    Stations WNJN327, WPER274, WPET577 and WPA615.[^1] These four
    stations are currently licensed to various licensees, including
    ComTech,[^2] Western Management Corporation: America West C&E, Inc.
    dba Page Me,[^3] and Communication Technologies, Inc. dba Page
    Me.[^4] On our own motion, we are considering in this Order the
    renewal application for Station WPER274,[^5] and the modification
    applications for Stations WPAF615 and WPET577,[^6] as well as a
    cancellation request relating to Station WPEK890, filed on behalf of
    Page Wyo, Inc.[^7] We note that certain contractual rights and
    interests of the aforementioned licensees and their principals are
    currently being litigated in the Wyoming State Court system.[^8] For
    the reasons set forth below, we will continue to hold the renewal
    application for Station WPER274 in abeyance, return without action
    the cancellation request relating to Station WPEK890, and dismiss
    the Petition and all remaining captioned applications without
    prejudice.

    **II. BACKGROUND**

2.  Stations WNJN327, WPER274, WPET577 and WPAF615 were originally
    licensed in the name of Western Management Corporation: America West
    C&E dba Page Me. On December 4, 1998, Stewart Powell and Donnajean
    Williamson dba Western Management Corporation, filed a complaint in
    the District Court for the Third Judicial District of Sweetwater
    County, Wyoming, against Ted Higgins, ComTech, and America West
    Communications and Electronics, Inc.[^9] In the complaint, Stewart
    Powell alleges, *inter alia*, that he is the owner of Western
    Management Corporation, and the operator of Page Me, a Wyoming
    partnership.[^10] On February 19, 1999, ComTech filed a complaint in
    the District Court for the Third Judicial District of Uinta County,
    Wyoming, against Western Management Corporation.[^11] In its
    complaint, ComTech alleges, *inter alia*, that Page Me is a Wyoming
    partnership or joint venture, originally comprised of Western
    Management Corporation and America West Communications and
    Electronics, Inc. ComTech further alleges that Western Management
    Corporation acted as manager of the joint venture, and had sole
    custody and control of Page Me's and Page Wyo's books and
    records.[^12] ComTech also alleges that it acquired ownership and
    title to America West Communications and Electronics, Inc.'s
    interests in Page Me and Page Wyo, Inc. by order of sale dated and
    filed on July 6, 1998, in the United States Bankruptcy Court for the
    District of Wyoming.[^13]

3.  On January 14, 1999, applications were filed to renew the licenses
    for Stations WNJN327 and WPAF615. The applications also requested a
    change of licensee name without change of ownership, corporate
    structure or control.[^14] Ted S. Higgins of America West C&E dba
    Page Me signed those applications.[^15] Commission staff granted
    those applications on February 3, 1999.[^16]

4.  On March 16, 1999, Western Management Corporation: America West C&E
    filed a renewal application, seeking to renew the license for
    Station WPER274.[^17] On July 26, 1999, Western Management
    Corporation filed an application to assign Stations WNJN327,
    WPER274, WPET577 and WPAF615 from Western Management Corporation:
    America West C&E dba Page Me to Western Management Corporation.[^18]
    Stuart Powell signed the assignment application on behalf of both
    Western Management Corporation: America West C&E dba Page Me, the
    assignor, and Western Management Corporation, the assignee.[^19] On
    the same date, Western Management Corporation also filed
    applications to modify Stations WPAF615[^20] and WPET577[^21] to
    change the radio service from the private radio service to the
    commercial radio service.[^22] Also on that same date, Page Wyo,
    Inc. filed a request to cancel Station WPEK890's license.[^23]
    Stuart Powell signed that application.[^24]

5.  On August 30, 1999, ComTech filed the Petition seeking the dismissal
    or denial of Western Management Corporation's assignment
    application.[^25] In the Petition, ComTech argues that Stations
    WNJN327, WPER274, WPET577 and WPAF615 are held by a Wyoming
    partnership called Page Me, an entity formed between Western
    Management Corporation and America West C&E.[^26] ComTech alleges
    that it purchased all of the stock of America West C&E, and is
    therefore entitled to a fifty percent interest in Stations WNJN327,
    WPER274, WPET577 and WPAF615.[^27] ComTech further alleges that
    Western Management Corporation did not have the authority to file an
    assignment application relating to the four stations on July 26,
    1999, without ComTech's approval.[^28]

6.  Western Management Corporation filed an opposition to the Petition
    on September 29, 1999.[^29] In the Opposition, Western Management
    Corporation alleged that it was the sole entity remaining after a
    joint venture between America West C&E and Western Management
    Corporation dba Page Me had terminated. Western Management
    Corporation also alleged that ComTech had improperly filed the
    January 1999, renewal and name change applications relating to
    Stations WNJN327 and WPAF615 without Western Management
    Corporation's consent.[^30]

7.  ComTech filed a response to Western Management Corporation's
    Opposition on October 15, 1999,[^31] contending that it had acted
    properly in filing the two renewal applications.[^32] In its Reply,
    Com Tech also requested that any pending applications relating to
    this matter be held in abeyance until the conclusion of the Wyoming
    State Court litigation.[^33]

8.  ComTech sought summary judgment in the Uinta County court case, but
    its Motion for Summary Judgment was denied on August 17, 2000.[^34]
    The court opinion stated that the case was very complex and
    convoluted, with almost every issue of material fact in
    dispute.[^35] The opinion further stated that the "precise nature of
    the business entity formed in January 1997, and the business
    relationship between the parties is unclear, in dispute, and is the
    foundation of duties owed or not owed."[^36] The opinion
    additionally noted that whether or not Ted Higgins was a member of a
    joint venture is also at issue.[^37]

    **III. DISCUSSION**

9.  When Western Management Corporation filed an application for
    assignment or transfer of control relating to Stations WNJN327,
    WPER274, WPET577 and WPAF615, the four licenses were held in the
    name of Western Management Corporation: America West C&E dba Page
    Me, a joint venture comprised of two partners: Western Management
    Corporation and America West C&E dba Page Me.[^38] It is our
    understanding that the joint venture was subsequently terminated,
    and the ownership rights of the partnership are currently being
    litigated in the State of Wyoming.[^39] ComTech seeks the dismissal
    or denial of Western Management Corporation's assignment
    application, alleging that it had purchased all of the stock of
    America West, and thereby has beneficial ownership of America West's
    partnership interest in the four licenses.[^40] Western Management
    Corporation alleges that ComTech filed renewal requests relating to
    two of the stations, Stations WNJN327 and WPAF615, without Western
    Management Corporation's consent.[^41]

10. Clearly, there is a dispute between the parties as to who has the
    authority with respect to these licenses. We note, as an initial
    matter, that other than the assignment applications referenced
    herein, we have not received any applications regarding a
    substantial change in control of the subject stations. The rights of
    the parties to a joint venture, upon the termination or dissolution
    of the joint venture, is a private contractual dispute.[^42] Under
    Wyoming law, the existence of a joint venture, is preeminently a
    question for the finder of fact.[^43] It is the Commission's policy
    to defer to the determinations made by the appropriate state courts
    in such situations.[^44] The parties are actively litigating the
    ownership issue before the Third Judicial District of the State of
    Wyoming.[^45] As a result, we believe it would be inappropriate to
    grant any of these applications until the Wyoming state courts
    determine the respective rights of the parties. Against this
    backdrop, we believe the best course of action would be to dismiss
    all of the pending applications without prejudice to the rights of
    the parties to refile if, at the conclusion of the Wyoming State
    Court litigation, it is determined that they have ownership
    interests in the subject licenses. Accordingly, we will dismiss
    without prejudice the assignment and modification applications filed
    by Western Management Corporation. We will also return, without
    taking action, the application filed by Page Wyo, Inc. seeking
    cancellation of the license for WPEK890. We anticipate that no
    action will be taken on any application relating to these stations
    until we are notified that the litigation has been resolved.

11. Western Management Corporation: American West C&E filed a renewal
    application seeking renewal of Station WPER274 on March 16,
    1999.[^46] Dismissal of the renewal application prior to the
    conclusion of the state court litigation would result in the
    cancellation of the station authorization, without the opportunity
    to re-file at the conclusion of the litigation. The application will
    therefore be held in abeyance pending the conclusion of the
    litigation.

    **IV. CONCLUSION AND ORDERING CLAUSES**

12. Because questions of ownership exist, any pending applications, with
    the exception of the renewal application for Station WPER274, are
    dismissed without prejudice or returned without action. The renewal
    application relating to Station WPER274 is being held in abeyance
    pending the outcome of the Wyoming State Court litigation discussed
    herein.

13. Accordingly, IT IS ORDERED pursuant to Section 4(i) of the
    Communications Act of 1934, 47 U.S.C. § 154(i), and Sections 1.41
    and 1.939 of the Commission's Rules, 47 C.F.R. §§ 1.939, 1.41, that
    the Petition to Dismiss or Deny/Informal Complaint filed by
    Communication Technologies, Inc. on August 30, 1999, IS DISMISSED
    WITHOUT PREJUDICE.

14. IT IS FURTHER ORDERED that the application to assign or transfer the
    licenses for Stations WNJN327, WPER274, WPET577 and WPAF615, filed
    by Western Management Corporation on July 26, 1999, FCC Form 490, IS
    DISMISSED WITHOUT PREJUDICE.

15. IT IS FURTHER ORDERED that the application for renewal relating to
    Station WPER274, FCC File No. R375195, IS TO BE HELD IN ABEYANCE,
    pending the conclusion of the related Wyoming State Court
    litigation.

16. IT IS FURTHER ORDERED that the applications for modification of
    Stations WPAF615 and WPET577, FCC File Nos. D129494 and D129495,
    filed by Western Management Corporation on July 26, 1999, ARE
    DISMISSED WITHOUT PREJUDICE.

17. IT IS FURTHER ORDERED that the application for cancellation of
    Station WPEK890, FCC Form 405A, filed by Page - WYO, Inc., IS
    RETURNED WITHOUT ACTION.

18. 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

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: Petition to Dismiss or Deny/Informal Objection (filed Aug. 30,
    1999) (Petition).

[^2]: Station WNJN327.

[^3]: Stations WPER274 and WPET577.

[^4]: Station WPAF615.

[^5]: *See* FCC File No. R375195.

[^6]: *See* FCC File Nos. D129494 and D129495, respectively.

[^7]: *See* FCC Form 405A relating to Station WPEK890, currently
    licensed to Communication Technologies, Inc. (dated July 23, 1999).

[^8]: *See* Western Management Corporation v. Communication
    Technologies, Inc., Civ. No. 98-660, District Court of the Third
    Judicial District, Sweetwater County, Wyoming (1998); Communication
    Technologies, Inc. v. Western Management Corporation, Civ. No.
    99-45, District Court of the Third Judicial District, Uinta County,
    Wyoming (1999).

[^9]: *See* Complaint in Western Management Corporation v. Communication
    Technologies, Inc., Civ. No. 98-660, District Court of the Third
    Judicial District, Sweetwater County, Wyoming (filed Dec. 4, 1998).

[^10]: *Id*. at 1.

[^11]: *See* Complaint in Communication Technologies, Inc. v. Western
    Management Corporation, Civ. No. 99-45, District Court of the Third
    Judicial District, Uinta County, Wyoming (filed Feb. 19, 1999).

[^12]: *Id*. at 1-2.

[^13]: *Id*.

[^14]: *See* FCC File Nos. R359197 and R359162 (filed Jan. 14, 1999).

[^15]: *Id.*

[^16]: *Id.* (granted Feb. 3, 1999).

[^17]: *See* FCC File No. R375195 (filed Mar. 16, 1999).

[^18]: *See* FCC Form 490 (filed July 26, 1999). At the time of filing,
    Station WNJN327 was licensed in the name of Communication
    Technologies, Inc, and Station WPAF615 was licensed in the name of
    Communication Technologies, Inc. dba Page Me.

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

[^20]: *See* FCC File No. D129494.

[^21]: *See* FCC File No. D129495.

[^22]: *See* FCC File Nos. D129494 and D129495 at Schedule D.

[^23]: *See* FCC Form 405A (filed July 26, 1999).

[^24]: *Id.*

[^25]: Petition to Dismiss or Deny/Informal Objection (filed Aug. 30,
    1999) (Petition).

[^26]: *Id*. at 1.

[^27]: *Id*. at 2.

[^28]: *Id*.

[^29]: Opposition to Petition to Dismiss or Deny (filed Sept. 29, 1999)
    (Opposition). The Opposition was timely filed. On Sept. 8, 1999,
    Western Management Corporation and ComTech filed a Joint Consent
    Motion for an extension of time until Sept. 29, 1999, in which to
    file an Opposition, and October 15, 1999, to file a Reply.

[^30]: *Id.* at 5.

[^31]: Reply to Opposition to Petition to Dismiss or Deny (filed Oct.
    15, 1999) (Reply).

[^32]: *Id.* at 1-3.

[^33]: *Id*. at 1.

[^34]: *See* Opinion Letter of District Judge Jere Ryckman,
    Communication Technologies, Inc. v. Western Management Corporation,
    Civ. No. 99-45, District Court of the Third Judicial District, Uinta
    County, Wyoming (dated Aug. 17, 2000).

[^35]: *Id*. at 2.

[^36]: *Id*.

[^37]: *Id*.

[^38]: *See* Petition at 1.

[^39]: *Id*.

[^40]: *Id.*

[^41]: Opposition at 2.

[^42]: *See* In re Hoffman, *Memorandum Opinion and Order*, FCC 00-387,
    ¶ 23 (rel. Nov. 8, 2000).

[^43]: *Id*. (*citing* Romberger v. VFW Post 1881, 918 P.2d 993, 995
    (Wyo. 1996).

[^44]: *See* Listeners' Guild, Inc. v. FCC, 813 F.2d 465, 469 (D.C. Cir.
    1987).

[^45]: *See* note 8, *supra*.

[^46]: *See* note 18, *supra*.