**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | Report No. AUC-65            |
|                                  | * |                              |
| Intelligent Transportation &     | ) | DA 06-1520                   |
| Monitoring Wireless LLC and AMTS | * |                              |
| Consortium, LLC                  | * | FCC File No. 0002653156      |
|                                  |   |                              |
| Petition for Declaratory Ruling  | * | FCC File No. 0002658043      |
| and Motion for Stay of Auction   | * |                              |
| No. 65                           | ) |                              |
|                                  | * |                              |
| Auction 65 Public Notice         | * |                              |
| Regarding Long Form/             |   |                              |
|                                  | * |                              |
| FCC Form 601 Applications        | * |                              |
| Accepted for Filing              | ) |                              |
|                                  | * |                              |
| Application of AC BidCo LLC for  | * |                              |
| Authorization To Provide         |   |                              |
| Air-Ground Radiotelephone        | * |                              |
| Service in the 800 MHz Band      | * |                              |
|                                  | ) |                              |
| Application of LiveTV LLC for    | * |                              |
| Authorization To Provide         | * |                              |
| Air-Ground Radiotelephone        |   |                              |
| Service in the 800 MHz Band      | * |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: March 9, 2007 Released: March 9, 2007**

By the Chief, Wireless Telecommunications Bureau:

# introduction

1.  In this Memorandum Opinion and Order, we address the "Response to
    and Informal Request for Reconsideration of Order Regarding Petition
    for Declaratory Ruling and Supplement and Amendment of Motion for
    Stay and Rescheduling of Auction 65" filed by Intelligent
    Transportation & Monitoring Wireless LLC and AMTS Consortium, LLC
    (together, the "Havens Parties" or "Petitioners") on May 10, 2006
    ("Reconsideration Petition").[^1] The Havens Parties seek
    reconsideration of a decision of the Auctions and Spectrum Access
    Division ("Division") denying their petition for declaratory ruling
    and motion for stay ("Petition") of the auction last year of 800 MHz
    Air-Ground Radiotelephone Service licenses (Auction No. 65).[^2] In
    their Petition, the Havens Parties had sought an interpretation of
    the eligibility restriction for 800 MHz Air-Ground Radiotelephone
    licenses set forth in Section 22.853 of the Commission's Rules.[^3]
    In addition, we also address a Petition for Reconsideration filed by
    the Havens Parties[^4] with respect to the applications of AC BidCo
    LLC ("AC BidCo") and LiveTV LLC ("LiveTV") for authorization to
    provide Air-Ground Radiotelephone Service in the 800 MHz Band
    ("Auction No. 65 Applications Reconsideration Petition").[^5] For
    the reasons explained below, we find that the Reconsideration
    Petition fails to demonstrate that the *Division Order* contained
    erroneous findings of fact or conclusions of law. Accordingly, we
    deny both the Reconsideration Petition and the Auction No. 65
    Applications Reconsideration Petition.

# BACKGROUND

2.  On February 22, 2005, the Commission released the *Air-Ground
    Order*, in which it adopted a flexible regulatory approach to
    determine the future band configuration of the four megahertz of
    dedicated spectrum in the 800 MHz commercial Air-Ground
    Radiotelephone Service.[^6] Based on the band configuration
    proposals submitted by interested parties in the proceeding, the
    Commission decided to assign nationwide air-ground licenses under
    one of three alternative band configurations, implementing the band
    plan receiving the highest gross aggregate bid in an auction.[^7] In
    light of specific circumstances relating to this spectrum, the
    Commission prohibited any party from obtaining a controlling
    interest, either at auction or by a post-auction transaction, in
    more than three megahertz of spectrum (either shared or exclusive)
    in the 800 MHz air-ground band.[^8] The Commission also requested
    comment on competitive bidding rules for the 800 MHz commercial
    Air-Ground Radiotelephone Service.

3.  On December 9, 2005, the Commission released the *Air-Ground
    Reconsideration Order* *and* *Report and Order*, in which it
    resolved petitions for reconsideration of the *Air-Ground Order* and
    adopted competitive bidding rules for the 800 MHz commercial
    Air-Ground Radiotelephone Service.[^9] On January 10, 2006, the
    Wireless Telecommunications Bureau ("Bureau") announced that the
    auction of new licenses in the 800 MHz Air-Ground Radiotelephone
    service would begin on May 10, 2006, and sought comment on various
    procedures for the auction.[^10]

4.  On February 21, 2006, the Bureau released its *Auction No. 65
    Procedures Public Notice* announcing various deadlines for
    applicants wishing to participate, as well as minimum opening bids
    and other procedures for Auction No. 65.[^11] The *Auction No. 65
    Procedures Public Notice* described procedures pursuant to which
    this auction would offer nationwide commercial licenses in the 800
    MHz band in three alternative band configurations, and that licenses
    in only one of the three mutually incompatible band configurations
    would be awarded.

5.  The *Auction No. 65 Procedures Public Notice* established that
    applicants were required to file short-form auction applications on
    FCC Form 175 by March 24, 2006 and upfront payments by April 17,
    2006.[^12] On April 28, 2006, the Bureau released a public notice
    identifying the nine bidders that had qualified to participate in
    Auction No. 65.[^13] The Havens Parties were two of the nine
    qualified bidders.[^14]

6.  On May 1, 2006, the Havens Parties filed their Petition seeking an
    explanation of the eligibility provisions of the rules governing the
    800 MHz Air-Ground Radiotelephone Service.[^15] The Havens Parties
    posed four questions relating to the 800 MHz Air-Ground Service
    eligibility restriction, and challenged the rules established by the
    Commission's *Air-Ground Order*, asserting that further
    clarification was warranted.[^16]

7.  On May 4, 2006, the Bureau released a public notice explaining that
    the computerized competitive bidding system for Auction No. 65 had
    been programmed to recognize -- from the information provided in
    potential bidders\' short form applications -- any bids that would
    run afoul of the Commission's rule that prohibits an individual or
    entity from holding, directly or indirectly, a controlling interest
    in licenses authorizing the use of more than three megahertz of
    spectrum.[^17] Specifically, the *Auction No. 65 Supplemental
    Procedures Public Notice* explained that the system used in Auction
    No. 65 would not assign both licenses to any single applicant or to
    multiple applicants that, based on their short-form auction
    applications (FCC Form 175), shared a common controlling interest.
    The *Auction No. 65 Supplemental Procedures Public Notice* noted
    that the Havens Parties reported on their short-forms that they
    shared a common controlling interest. It also stated that the
    Auction No. 65 system would prevent them from both becoming winning
    bidders in that auction.[^18]

8.  On May 8, 2006, Havens Parties filed their Supplement, asserting
    that the *Auction No. 65 Supplemental Procedures Public Notice* did
    not address the issues that they raised in their Petition.

9.  On May 9, 2006, the Division denied the Haven's Parties' Petition
    and dismissed the Motion for Stay. The Division addressed each of
    the four questions raised by the Petitioners, noting that, in more
    than one case, it was premature to make any decision regarding the
    application of the rules to the particular circumstances of the
    Havens Parties or any other applicants.[^19] The following day, the
    Havens Parties submitted the instant petition.[^20]

# Discussion

10. Under Section 1.106 of the Commission's rules, a petition requesting
    reconsideration of a final Commission action must cite findings of
    fact and/or conclusions of law it believes to be erroneous and must
    also state with particularity the respects in which it believes such
    findings and conclusions should be changed.[^21] The Havens Parties
    argue that the Division failed to address its perceived ambiguity
    over the "controlling interest" standard as applied to the
    eligibility restriction for 800 MHz Air-Ground licenses, and,
    consequently, lacked authority to hold Auction No. 65. For the
    reasons set forth below, we disagree and deny the Reconsideration
    Petition.

11. The Havens Parties argue that the language in the *Air-Ground Order*
    implies that all of the relationships set forth under the definition
    of "affiliate" in Section 1.2110(c)(5) are "controlling interests"
    for purposes of the Air-Ground eligibility restriction.[^22] We
    disagree. The Commission clearly stated, in the *Air-Ground Order*,
    that the eligibility restriction pertains to entities and their
    controlling interests.[^23] The Commission added that the
    "controlling interests" and "affiliates" definitions set forth in
    Section 1.2110(c) would apply, but did not assert, as the
    Petitioners suggest, that every relationship described as
    affiliation would be deemed to be a controlling interest.[^24]
    Rather, by noting that the definition of "affiliate" would apply in
    the context of determining Air-Ground eligibility, the Commission
    was merely indicating that a "controlling interest" in an entity --
    the operative standard under the *Air-Ground Order* -- *may* arise
    from certain relationships described under the affiliation
    definition.[^25] We find no evidence that the Commission intended,
    as the Havens Parties assert, that the *Air-Ground Order* intended
    to require *all* affiliates to be considered *per se* controlling
    interests in an entity for purposes of the Air-Ground eligibility
    provision found in Section 22.853. As a result, we agree with the
    *Division Order* with respect to its explanation of the standard.

12. We likewise find to be without merit the Petitioners' assertion that
    the Commission -- specifically the Division -- lacked authority to
    hold Auction No. 65. The Havens Parties assert that if "all
    affiliates...are controlling interests, then this auction is fatally
    flawed...since many if not all short form \[applications\] of
    bidders did not disclose all affiliates as controlling
    interests."[^26] Moreover, the Havens Parties attempt to
    characterize Section 22.853 as "overly vague" and therefore
    "unconstitutional and unenforceable," and as a result, assert that
    the Division does not have the authority to hold Auction No.
    65.[^27] We disagree with this assessment. First, as noted above,
    the Commission's language in the *Air-Ground Order* is not
    ambiguous. Second, the Bureau, in the *Auction No. 65 Supplemental
    Public Notice*, took the added measure of describing how the
    Air-Ground eligibility restriction will affect provisionally winning
    bids and minimum acceptable bids in Auction No. 65.

13. We also note that in arguing that the eligibility rule is vague
    and/or unconstitutional, the Havens Parties are essentially seeking
    reconsideration of the *Air-Ground Order*. The Petitioners
    themselves acknowledge this when they state that Section 22.853
    "must be fixed by rule making under \[Administrative Procedures Act
    ("APA")\] procedures."[^28] The Commission adopted Section 22.853
    through notice-and-comment procedures consistent with the APA, and
    neither the *Auction No. 65 Supplemental Public Notice* nor the
    *Division Order* amended that rule, but simply provided guidance in
    light of the circumstances of Auction No. 65 and the Petition. All
    interested parties, including the Havens Parties, had an opportunity
    to seek reconsideration or clarification of Section 22.853 within
    the time period afforded by Section 1.429 of the Commission's
    rules.[^29] The Havens Parties concede that they did not participate
    in the rulemakings that established these service rules, and only
    recently became interested in this auction and the 800 MHz
    Air-Ground Service.[^30] The Havens Parties, therefore, missed their
    chance to influence either the rules for this service or the
    procedures for the auction. They nevertheless qualified to bid and
    participated in Auction No. 65. For all these reasons, the Havens
    Parties have failed to demonstrate that the Commission lacked
    authority to hold Auction No. 65.

14. Finally, we address the Petitioners' argument that Division did not
    consider all of their filings, specifically their Supplement filed
    May 8, 2006,[^31] which, according to the Havens Parties, was filed
    "well before (given the shortened time frames) release of the
    Order."[^32] We first note that the Havens Parties filed the
    Supplement on May 8, 2006, and the *Division Order* was released on
    May 9, 2006. Even taking "shortened time frames" of an auction into
    account, the characterization that the Supplement was filed "well
    before" the release of the *Division Order* is, at best,
    disingenuous.[^33] In any case, the arguments made in the Supplement
    are not substantively different from those raised in the Petition or
    the Reconsideration Petition and, therefore, have been adequately
    addressed.

15. In light of our action on the Reconsideration Petition, we also deny
    the Havens Parties' Auction No. 65 Applications Reconsideration
    Petition. The Havens Parties allege in that filing that they did
    challenge the long form applications filed by AC BidCo and LiveTV,
    stating that "\[t\]he Applicants participated in an auction under
    rules that were not fair and effective for reasons Petitioners
    stated prior to the auction in filings with the FCC concurrently
    served upon the Applicants: Applicants were put on notice."[^34] We
    have been able to discern no basis for the Havens Parties' challenge
    to the applications of AC BidCo and LiveTV other than the claims
    made in the Reconsideration Petition. Thus, for the same reasons
    that we deny the Reconsideration Petition, we deny the Auction No.
    65 Applications Reconsideration Petition.

# Conclusion

16. The Havens Parties assert that the language of Section 22.853 and
    the *Air-Ground Order* is ambiguous with regard to the "controlling
    interest" standard contained therein, and that the Division failed
    to address this ambiguity and therefore lacked the proper authority
    to hold Auction No. 65. We find that Section 22.853 and the
    *Air-Ground Order* clearly states that a "controlling interest"
    standard will be used for the Air-Ground eligibility restriction,
    and that the definitions of "controlling interests" and "affiliates"
    in Section 1.2110(c) will be applied. To that end, we find the
    arguments set forth in Havens Parties' Petition and all subsequent
    supplements without merit, and dismiss the suggestion that Auction
    No. 65 should have been rescheduled because of the Petitioner's
    apparent misunderstanding of the Air-Ground eligibility rule.
    Therefore, we deny the Reconsideration Petition. Similarly, because
    the Havens Parties challenge the AC BidCo and LiveTV applications on
    the same grounds set forth in the Reconsideration Petition, we also
    deny the Auction No. 65 Applications Reconsideration Petition.

# ORDERING CLAUSE

17. Accordingly, IT IS ORDERED that, pursuant to the authority granted
    in Sections 4(i) and 309(j) of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 154(i) and 309(j), and Sections 1.106 of the
    Commission's Rules, 47 C.F.R. § 1.106, the Response to and Informal
    Request for Reconsideration of Order Regarding Petition for
    Declaratory Ruling and Supplement and Amendment of Motion for Stay
    and Rescheduling of Auction 65 filed by Intelligent Transportation &
    Monitoring Wireless LLC and AMTS Consortium, LLC, on May 10, 2006,
    and the Petition for Reconsideration filed by Intelligent
    Transportation & Monitoring Wireless LLC and AMTS Consortium, LLC,
    on November 30, 2006, are DENIED. 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

Fred B. Campbell, Jr.

Chief, Wireless Telecommunications Bureau

[^1]: Intelligent Transportation & Monitoring Wireless LLC and AMTS
    Consortium, LLC, Response to and Informal Request for
    Reconsideration of Order Regarding Petition for Declaratory Ruling
    and Supplement and Amendment of Motion for Stay and Rescheduling of
    Auction 65, filed on May 10, 2006 ("Reconsideration Petition").
    Intelligent Transportation & Monitoring Wireless LLC and AMTS
    Consortium, LLC are each controlled by Warren C. Havens. *See* FCC
    Form 175 for Auction No. 65 filed by Intelligent Transportation &
    Monitoring Wireless LLC and AMTS Consortium, LLC. Short-form
    applications and other information concerning Auction No. 65 may be
    viewed at: <http://wireless.fcc.gov/auctions/65/>.

[^2]: Intelligent Transportation & Monitoring Wireless LLC and AMTS
    Consortium, LLC, Petition for Declaratory Ruling and Motion for Stay
    of Auction No. 65, *Order*, 21 FCC Rcd 5117 (WTB/ASAD 2006)
    ("*Division Order*"). Intelligent Transportation & Monitoring
    Wireless LLC and AMTS Consortium, LLC, Petition for Declaratory
    Ruling and Motion for Stay and Rescheduling of Auction 65, filed on
    May 1, 2006 ("Petition").

[^3]: 47 C.F.R. § 22.853.

[^4]: *See* Intelligent Transportation & Monitoring Wireless LLC and
    AMTS Consortium LLC, Petition for Reconsideration, filed on Nov. 30,
    2006 ("Auction No. 65 Applications Reconsideration Petition").

[^5]: *See* FCC File Nos. 0002653156, 0002658043.

[^6]: Amendment of Part 22 of the Commission's Rules to Benefit the
    Consumers of Air-Ground Telecommunications Services, Biennial
    Regulatory Review -- Amendment of Parts 1, 22, and 90 of the
    Commission's Rules, Amendment of Parts 1 and 22 of the Commission's
    Rules to Adopt Competitive Bidding Rules for Commercial and General
    Aviation Air-Ground Radiotelephone Service, WT Docket Nos. 03-103
    and 05-42, *Report and Order and Notice of Proposed Rulemaking*, 20
    FCC Rcd 4403 (2005) ("*Air-Ground Order*").

[^7]: *Air-Ground Order,* 20 FCC Rcd at 4405-06 ¶ 1, 4418-22 ¶¶ 24-32.

[^8]: *Id.* at 4423-27 ¶¶ 37-44. This eligibility restriction may be
    found at section 22.853 of the Commission's rules. 47 C.F.R. §
    22.853. For purposes of this prohibition, the Commission explained
    that it would apply the definitions of "controlling interests" and
    "affiliate" currently set forth in Sections 1.2110(c)(2) and
    1.2110(c)(5) of the Commission\'s rules. *See Air-Ground Order,* 20
    FCC Rcd at 4427 ¶ 44.

[^9]: Amendment of Part 22 of the Commission's Rules to Benefit the
    Consumers of Air-Ground Telecommunications Services, Biennial
    Regulatory Review -- Amendment of Parts 1, 22, and 90 of the
    Commission's Rules, Amendment of Parts 1 and 22 of the Commission's
    Rules to Adopt Competitive Bidding Rules for Commercial and General
    Aviation Air-Ground Radiotelephone Service, WT Docket Nos. 03-103
    and 05-42, *Order on Reconsideration and Report and Order,* 20 FCC
    Rcd 19663 (2005).

[^10]: "Auction of 800 MHz Air-Ground Radiotelephone Service Licenses
    Scheduled for May 10, 2006; Comment Sought on Reserve Prices or
    Minimum Opening Bids and Other Procedures for Auction No. 65,"
    *Public Notice*, 21 FCC Rcd 4 (WTB 2006).

[^11]: "Auction of 800 MHz Air-Ground Radiotelephone Service Licenses
    Scheduled for May 10, 2006; Notice and Filing Requirements, Minimum
    Opening Bids, Upfront Payments and Other Procedures for Auction No.
    65," *Public Notice*, 21 FCC Rcd 1278 (WTB 2006) ("*Auction No. 65
    Procedures Public Notice*").

[^12]: *Auction No. 65 Procedures Public Notice*, 21 FCC Rcd at 1300-01
    ¶¶ 76, 79.

[^13]: "Auction of 800 MHz Air-Ground Radiotelephone Service Licenses; 9
    Bidders Qualified to Participate in Auction No. 65," *Public
    Notice*, 21 FCC Rcd 4266 (WTB 2006).

[^14]: *Id.* at 4265.

[^15]: Petition at 6-10.

[^16]: *Id*.

[^17]: "Auction of 800 MHz Air-Ground Radiotelephone Service Licenses
    Scheduled for May 10, 2006; Clarification of Treatment of Bids by
    Bidders Sharing a Controlling Interest," *Public Notice,* 21 FCC Rcd
    5058 (WTB 2006) ("*Auction No. 65 Supplemental Procedures Public
    Notice*").

[^18]: *Id*. at 5058 and n.4.

[^19]: *Division Order*, 21 FCC Rcd at 5120 ¶ 10

[^20]: On August 7, 2006, the Havens Parties filed a "Petition for
    Clarification, and Action Deemed Appropriate, Under Sections 1.939,
    1.2108, and 1.41." Intelligent Transportation & Monitoring Wireless
    LLC and AMTS Consortium LLC, Petition for Clarification, and Action
    Deemed Appropriate, Under Sections 1.9393, 1.2108 and 1.41, filed on
    Aug. 7, 2006 ("Auction No. 65 Applications Petition"). The
    applicants, AC BidCo LLC and LiveTV, LLC, filed oppositions. *See*
    AC BidCo LLC, Opposition to Petition for Clarification, and Action
    Deemed Appropriate, filed on Aug. 14, 2006; LiveTV, LLC, Opposition
    to Petition for Clarification and Action, filed on Aug. 14, 2006.
    The Havens Parties filed a response. *See* Intelligent
    Transportation & Monitoring Wireless LLC and AMTS Consortium LLC,
    Reply to Oppositions to Petition for Clarification and Action Deemed
    Appropriate, Under Section 1.939, 1.2108 and 1.41, filed on Aug. 21,
    2006. The Bureau's Mobility Division dismissed the Auction No. 65
    Applications Petition as duplicative since it relied upon and
    incorporated by reference the arguments made in the Reconsideration
    Petition. *See* Auction 65 Public Notice Regarding Long Form/FCC
    Form 601 Applications Accepted for Filing, *et al*., *Order*, 21 FCC
    Rcd 13010 (WTB/MD 2006). The Commission concurrently issued a public
    notice granting the AC BidCo and LiveTV applications. *See* Wireless
    Telecommunications Bureau Grants 800 MHz Air-Ground Licenses,
    Auction No. 65, *Public Notice*, 21 FCC Rcd 13022 (WTB 2006). The
    Havens Parties subsequently filed the Auction No. 65 Applications
    Reconsideration Petition with respect to the Mobility Division
    order. AC BidCo and LiveTV filed Oppositions. *See* AC BidCo LLC,
    Opposition to Petition for Reconsideration, filed on Dec. 7, 2006;
    LiveTV, LLC, Opposition to Petition for Reconsideration, filed on
    Dec. 12, 2006.

[^21]: 47 C.F.R. § 1.106(d)(2).

[^22]: Reconsideration Petition at 3.

[^23]: The Commission specifically prohibited "any party from obtaining
    a controlling interest, either at auction or by a post-auction
    transaction, in more than three megahertz of spectrum (either shared
    or exclusive) in the 800 MHz air-ground band." *Air-Ground Order*,
    20 FCC Rcd at 4426-27 ¶ 43.

[^24]: *Id*. at 4427 ¶ 44.

[^25]: *See Division Order* at 5119 ¶ 8. For example, under 47 C.F.R. §
    1.2110(c)(5)(ii)(C), control "can arise through management
    positions...," which means that control of an entity may rest in
    those in management positions under certain conditions.

[^26]: Reconsideration Petition at 3.

[^27]: *Id*. at 4.

[^28]: *Id*. at 5.

[^29]: 47 C.F.R. § 1.429.

[^30]: Petition at 3.

[^31]: Reconsideration Petition at 4. The Petitioners also argue that
    the Division ignored their original petition and motion for stay in
    the *Auction No. 65 Supplemental Public Notice*. *Id*. The content
    of the *Auction No. 65 Supplemental Public Notice*, however, is not
    in question here. Nonetheless, we note that the *Auction No. 65
    Supplemental Public Notice* did not arise from the Petition and
    Motion for Stay, but rather to clarify how bids will be handled in
    Auction No. 65, given the unique nature of the Air-Ground
    eligibility provision.

[^32]: Reconsideration Petition at 5.

[^33]: Moreover, the Petitioners themselves characterize the Supplement
    as a "response to the \[Supplemental\] Public Notice released on
    \[May 5, 2006\]." Supplement at 2.

[^34]: Auction No. 65 Applications Reconsideration Petition at 1.