Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| **In the Matter of**             | * | **File No. 0000659443**      |
|                                  | * |                              |
| **Pacific Wireless Technologies, | ) |                              |
| Inc.**                           | * |                              |
|                                  | * |                              |
| **800 MHz Station KGQ445**       |   |                              |
|                                  | * |                              |
| **Assignment from Pacific        | * |                              |
| Wireless Technologies, Inc. to   | ) |                              |
| Nextel of California, Inc.**     | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**ORDER**

**Adopted: April 23, 2003 Released: April 25, 2003**

By the Chief, Policy and Rules Branch, Commercial Wireless Division,

Wireless Telecommunications Bureau:

**I. INTRODUCTION**

1\. We have before us two petitions for reconsideration, and a request
for stay, filed by Pacific Wireless Technologies, Inc. ("Pacific
Wireless").[^1] Pacific Wireless seeks reconsideration of Letter
Decisions by the Licensing and Technical Analysis Branch ("Branch") of
the Commercial Wireless Division, Wireless Telecommunications Bureau,
which reinstated a license to operate conventional industrial/land
transportation pool station KGQ445 ("License") to Lodi Farming, Inc.
("Lodi"), and set aside an earlier assignment of the License from Lodi
to Pacific Wireless.[^2] For the reasons discussed below, we deny the
Petitions and the Request for Stay.[^3]

**II. BACKGROUND**

2\. On August 8, 1986, Cortopassi Farms, Inc. assigned station license
KGQ445 to Lodi.[^4] Call sign KGQ445 was authorized as a community
repeater station on Mount Oso in Stanislaus County, California on
frequency 851.8375 MHz.[^5] Diamondback Enterprises, Inc. d/b/a Noack
Pump Co. ('Noack") operated a co-channel station under call sign KMA683
for frequency 851.8375 MHz on the same community repeater as Lodi.[^6]
On June 25, 1997, Noack assigned station license KMA683 to Delta.[^7] On
October 25, 2000, an FCC Form 601 and accompanying assignment of
authorization form (FCC Form 1046), designating Felix Difuntorum as
signatory for Lodi, was filed with the Commission to assign call sign
KGQ445 from Lodi to Pacific Wireless.[^8] The assignment was granted on
April 16, 2001.[^9] Felix Difuntorum is Vice President of Delta and is
not an officer, director, or authorized employee of Lodi.[^10] On July
27, 2001, Pacific Wireless filed an application with the Commission to
assign 188 of its SMR licenses to Nextel of California, Inc. ("Nextel"),
including call sign KGQ445.[^11] On September 25, 2001, Lodi sent a
letter to the Commission alleging that the prior assignment of station
license KGQ445 to Pacific Wireless was unauthorized and requesting that
the License be reinstated to Lodi.[^12] On November 15, 2001, Pacific
Wireless filed: i) an amended application to delete the License from the
pending application for assignment to Nextel;[^13] and (ii) a new
application to assign the License to Nextel.[^14] On December 4, 2000
and January 8, 2001, Felix Difuntorum wrote to the Commission confirming
his lack of authority to act on Lodi's behalf, and requested
reinstatement of the License to Lodi.[^15] The Branch subsequently
issued the Letter Decisions, setting aside the prior assignment from
Lodi to Pacific Wireless and reinstating the license to Lodi.[^16] Based
on the Letter Decisions, on February 11, 2002, the Branch also dismissed
Pacific Wireless' pending application to assign the License to
Nextel.[^17] Pacific Wireless subsequently filed the instant Petitions
for Reconsideration, Supplement to Petition for Reconsideration and
Request for Stay.

# III. DISCUSSION

3\. We affirm the Branch's decision to reinstate station license KGQ445
to Lodi and set aside the assignment of the License from Lodi to Pacific
Wireless. It is well established that an unauthorized assignment is void
*ab initio*, and cannot convey any rights to the assignee.[^18] We find
that the assignment from Lodi to Pacific Wireless was unauthorized,
because Felix Difuntorum had no authority to act as Lodi's signatory on
the assignment of authorization form filed on October 25, 2000. Pacific
Wireless fails to offer any evidence or even allege that Mr. Difuntorum
had authority to act as signatory for Lodi. In fact, in his letters to
the Commission, Mr. Difuntorum requests that the License be reinstated
to Lodi, because he lacked authority to assign the License.[^19] We
therefore reject Pacific Wireless' argument that the Branch revoked the
License before considering all the facts and circumstances as required
by Commission precedent.[^20]

4\. We further reject Pacific Wireless' argument that the Branch failed
to provide proper notice pursuant to section 312(c) of the
Communications Act before reinstating the License to Lodi.[^21] As the
Commission stated in *Tsooris*, if an assignment is "void *ab initio*,"
the purported assignee is not a Commission recognized licensee, and
therefore the provisions of section 312(c) of the Communications Act do
not apply.[^22] We find the cases cited by Pacific Wireless as authority
for its section 312(c) argument inapposite, because those cases involve
proceedings against Commission recognized licensees that acquired their
licenses through authorized Commission processes, not through an
unauthorized assignment.[^23] For example, in *S.A. Dawson Associates,*
the case upon which Pacific Wireless chiefly relies, the request for
reinstatement of a license centered on the issue of the corporate
authority of an admitted employee of the license holder to assign the
license.[^24] Under such circumstances, the Commission will investigate
to determine whether a substantial and material question of fact exists
that requires the matter under consideration be designated for hearing
or referred to courts of competent jurisdiction.[^25] There is no
substantial and material question of fact in the instant case, because
it is uncontroverted that Felix Difuntorum possesses no connection to
the licensee, Lodi, and has admitted his lack of authority to assign the
license.

5\. We also reject Pacific Wireless' argument that the Branch did not
have the authority to set aside the assignment to Pacific Wireless
because the assignment was administratively final. Pacific Wireless
argues that it is in the public interest to have Commission decisions
remain final if not timely challenged.[^26] Nonetheless, it is well
settled that misuse of Commission processes can result in the re-opening
of a proceeding.[^27] Pacific Wireless' reliance on *Birach
Broadcasting* in support of its administrative finality argument is
misplaced because, in that case, the Commission found that its
determination to reissue a broadcast license would not be re-opened
unless there had been fraud in the proceeding or the challenged result
was unconscionable.[^28] Here, while the record does not support a
finding of fraud in the assignment process, the filing of an
unauthorized assignment through mistake represents a misuse of the
Commission's processes, and it would be unconscionable to apply the
doctrine of administrative finality to an assignment that was void *ab
initio.*[^29]

6\. In addition, we are not persuaded by Pacific Wireless' argument that
the Branch should not have set aside the assignment, because Pacific
Wireless had no knowledge of the unauthorized assignment. Lack of
knowledge has no bearing on whether the assignment should be
invalidated.[^30] Although Pacific Wireless states that it had no prior
knowledge of the unauthorized assignment, failure to return the parties
to their rightful positions under these circumstances would encourage
such conduct, have an injurious effect on the Commission's processes,
and otherwise be contrary to the public interest.

7\. Further, we reject Pacific Wireless' argument that because this
matter involves a private contractual dispute, the Courts and not the
Commission should decide it.[^31] The Commission generally does not
adjudicate private contractual disputes, but instead attempts to reach a
fair accommodation between its exclusive authority over licensing
matters and the authority of State and local courts to decide
contractual matters under State and local law.[^32] However, where there
is no legal or factual question that an unauthorized assignment has
taken place, the Commission will act to invalidate the transaction.[^33]
Accordingly, Pacific Wireless' reliance on *Listener's Guild*, where
material factual questions requiring local court resolution did exist,
is misplaced.[^34]

8\. Pacific Wireless additionally seeks reconsideration of the Branch's
decision rejecting its request that the License be cancelled due to
Lodi's failure to operate the station for one year or more.[^35] We
affirm the Branch's finding that Pacific Wireless failed to provide
adequate information demonstrating that the License canceled
automatically due to Lodi's failure to operate the station for one year
or more.[^36] Section 90.157 of the Commission\'s rules provides that a
station license terminates automatically if operations are permanently
discontinued.[^37] The rule section further defines \"permanently
discontinued\" as any station that has not operated for one year or
more.[^38] As evidence of non-operation, Pacific Wireless offers the
declaration of its Chief Executive Officer, Jeffery Fuller, which states
that, after monitoring the channel, Pacific Wireless detected no
activity from April 16, 2001 to December 20, 2001, the period in which
Pacific Wireless controlled the license.[^39] Pacific Wireless also
cites statements made by Felix Difuntorum of Delta, which state that
Lodi abandoned its community repeater station and was no longer a
customer when the co-channel station, call sign KMA683, was assigned to
Delta in 1997.[^40] The Division found that because Pacific Wireless
monitored the station for less than one year, its certification of
non-operation failed to provide a level of proof necessary for
cancellation.[^41] As the Letter Decisions state, Pacific Wireless'
monitoring of the frequency for less than one year does not serve to
substantiate a violation of section 90.157.[^42] Similarly, the
statements of Felix Difuntorum, standing alone, do not conclusively
establish Lodi's permanent discontinuance of its operation of the
License. Specifically, Pacific Wireless seeks to rely on Mr.
Difuntorum's statements that during the period of Delta's ownership of
the community repeater, Lodi was not a customer.[^43] However, there
remain significant questions in the record regarding the ownership of
the facilities stationed on Mount Oso in Stanislaus County,
California,[^44] because Pacific Wireless and Delta maintain that Noack
owned the repeater, and Lodi maintains it owned the repeater.[^45] As
such, the statements of Felix Difuntorum, without more, do not
conclusively demonstrate Lodi's non-operational status for one year or
more in violation of the Commission's rules. Moreover, Mr. Difuntorum's
statements, being unsworn and uncertified, do not satisfy the
requirements of section 1.106(d) that findings of fact in petitions for
reconsideration be stated with particularity.[^46]

9\. Finally, we reject Pacific Wireless' argument that Lodi's license
cancelled automatically because it failed to construct and begin
operations within one year after the date of the license grant pursuant
to section 90.155.[^47] We make this finding because Pacific Wireless
has not provided any evidence that Lodi failed to construct its
facilities or failed to begin operations within the required one year
time period under the rule.

**IV. ORDERING CLAUSE**

10\. Accordingly, IT IS ORDERED that, pursuant to Section 4(i), 303(r),
and 405 of the Communications Act, as amended, [47 U.S.C. §§
154(i)](http://web2.westlaw.com/Find/Default.wl?DB=1000546&DocName=47USCAS154&FindType=L&AP=&RS=WLW2.81&VR=2.0&SV=Split&MT=Westlaw&FN=_top),
[303(r)](http://web2.westlaw.com/Find/Default.wl?DB=1000546&DocName=47USCAS303&FindType=L&AP=&RS=WLW2.81&VR=2.0&SV=Split&MT=Westlaw&FN=_top),
[405](http://web2.westlaw.com/Find/Default.wl?DB=1000546&DocName=47USCAS405&FindType=L&AP=&RS=WLW2.81&VR=2.0&SV=Split&MT=Westlaw&FN=_top),
and Sections 0.331 and 1.106 of the Commission\'s rules, [47 C.F.R. §§
0.331](http://web2.westlaw.com/Find/Default.wl?DB=1000547&DocName=47CFRS0.331&FindType=L&AP=&RS=WLW2.81&VR=2.0&SV=Split&MT=Westlaw&FN=_top),
[1.106](http://web2.westlaw.com/Find/Default.wl?DB=1000547&DocName=47CFRS1.106&FindType=L&AP=&RS=WLW2.81&VR=2.0&SV=Split&MT=Westlaw&FN=_top),
the Petitions for Reconsideration filed by Pacific Wireless
Technologies, Inc. on January 17, 2002 and March 7, 2002, the Supplement
to Petition for Reconsideration filed on March 7, 2002, and the Request
for Stay filed on January 17, 2002 ARE DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Paul D'Ari, Chief
>
> Policy and Rules Branch
>
> Commercial Wireless Division
>
> Wireless Telecommunications Bureau

[^1]: *See* Petition for Reconsideration, filed by Pacific Wireless,
    dated January 17, 2002 ("Petition I"); Petition for Reconsideration,
    filed by Pacific Wireless, dated March 7, 2002 ("Petition II")
    (collectively, "Petitions"); Request for Stay, filed by Pacific
    Wireless, dated January 17, 2002 ("Request for Stay"). A Supplement
    to Petition I was also filed. *See* Supplement to Petition for
    Reconsideration, filed by Pacific Wireless, dated March 7, 2002
    ("Supplement").

[^2]: *See* Letter from Terry L. Fishel, Deputy Chief, Licensing and
    Technical Analysis Branch, Commercial Wireless Division, to Russell
    Fox, Esq. (counsel for Pacific Wireless), *et al*, dated December
    20, 2001 ("December 20, 2001 Letter Decision"); Letter from Terry L.
    Fishel, Deputy Chief, Licensing and Technical Analysis Branch,
    Commercial Wireless Division, to Russell Fox, Esq. (counsel for
    Pacific Wireless), *et al*, dated February 5, 2002 ("February 5,
    2002 Letter Decision") (collectively, "Letter Decisions").

[^3]: In Petition II, Pacific Wireless argues that, in the \"unlikely
    event\" that the Commission intended the February 5, 2002 Letter
    Decision to resolve Petition I, the February 5, 2002 Letter Decision
    is not a \"reasoned response\" to that petition. *See* Petition II
    at 2. *See also,* Letter from Russell Fox, (counsel for Pacific
    Wireless), to Magalie R. Salas, FCC Secretary, dated December 20,
    2001 (\"Pacific Wireless December 20, 2001 Letter\"). We clarify
    that the February 5, 2002 Letter Decision was not intended to
    address Petition I. Rather, we address the arguments raised in
    Petition I in the instant order. Accordingly, Pacific Wireless\'
    argument in Petition II regarding the February 5, 2002 Letter
    Decision is moot.

[^4]: *See* Letter from Jeff Colombini, President of Lodi Farming Inc.,
    to Terry L. Fishel, Deputy Chief, Licensing and Technical Analysis
    Branch, Commercial Wireless Division, dated September 25 2001 ("Lodi
    Letter") at 1.

[^5]: *Id.*

[^6]: *See* Letter from Felix Difuntorum, Delta Wireless Inc. ("Delta"),
    to Terry L. Fishel, Deputy Chief, Licensing and Technical Analysis
    Branch, Commercial Wireless Division, dated December 4, 2001 ("Delta
    Letter I") at 1; Letter from Felix Difuntorum, Delta Wireless Inc.,
    to Terry L. Fishel, Deputy Chief, Licensing and Technical Analysis
    Branch, Commercial Wireless Division, dated June 18, 2002 ("Delta
    Letter II") at 1. Delta maintains that Lodi had abandoned the
    community repeater station and was no longer a customer at the time
    of assignment.

[^7]: *See* Delta Letter I at 1; Delta Letter II at 1; Lodi Letter at
    1-2.

[^8]: *See* File No. 0000298982, dated October 25, 2000.

[^9]: *See* File No. 0000298982, dated April 16, 2001.

[^10]: *See* Delta Letter I at 1; Delta Letter II at 1; Lodi Letter at
    1-2.

[^11]: *See* Pacific Wireless Technologies, Inc. and Nextel
    Communications, Inc. Seek Consent to Assign 800 MHz Licenses,
    *Public Notice*, DA 01-1931 (rel. Aug. 14, 2001).

[^12]: *See* Lodi Letter at 1-2.

[^13]: *See* File No. 0000523796. On November 16, 2001, the Commission
    consented to the assignment of Pacific Wireless' remaining SMR
    licenses to Nextel. *See* Applications of Pacific Wireless
    Technologies, Inc., *Memorandum Opinion and Order*, 16 FCC Rcd 20341
    (WTB 2001).

[^14]: *See* File No. 0000659443.

[^15]: *See* Delta Letter I at 1; Delta Letter II at 1.

[^16]: *See* December 20, 2001 Letter Decision at 1-2; February 5, 2002
    Letter Decision at 1.

[^17]: *See* File No. 0000659443.

[^18]: *See* In Re Application of Tsooris Corporation and Talkline
    Broadcasting Corporation, *Memorandum Opinion and Order,* 12 FCC Rcd
    1675, 1679, ¶ 10 (1997) ("*Tsooris*"). *See also* In the Matter of
    Clarklift of San Jose, Inc. and Moore Material Handling Group,
    *Second Order on Further Reconsideration*, 16 FCC Rcd 14844 (WTB
    2001) ("*Clarklift")*.

[^19]: *See* Delta Letter I at 1; Delta Letter II at 1. Mr. Difuntorum
    alleges that his attempt to assign the license was inadvertent and
    based on a mistaken belief that Delta had acquired the license in
    1997. *See id.*

[^20]: *See* Petition I at 3-4; Petition II at 3-4.

[^21]: *See id*.

[^22]: *See Tsooris,*12 FCC Rcd at 1679, ¶ 10.

[^23]: *See* In re Applications of Dale J. Parsons, Jr., *Memorandum
    Opinion and Order,* 10 FCC Rcd 2718, ¶ 16 (1995) (noting procedural
    requirements of Section 312 apply only to Commission licensees); MCI
    Telecommunications Corporation, *Order and Notice of Apparent
    Liability,* 3 FCC Rcd 509, 513-514, ¶¶ 46-47 (1988) (recognized
    Commission licensee entitled to procedural safeguards); Mark Sobel,
    Application for Certain Part 90 Authorizations, *Order to Show
    Cause, Hearing Designation Order and Notice of Opportunity for
    Hearing for Forfeiture,* 12 FCC Rcd 3298 (1997) (Commission licensee
    ordered to show cause why his licenses should not be revoked).

[^24]: *See* S.A. Dawson Associates, *Memorandum Opinion and Order,* 17
    FCC Rcd 472, 474, ¶¶ 6-7, (WTB 2002) ("*S.A. Dawson Associates"*).

[^25]: *Id.*

[^26]: Pacific Wireless claims that the Lodi Letter objecting to the
    unauthorized assignment was submitted "well after the time for
    challenging the FCC's action has past." Petition I at 6.

[^27]: *See* In Re Application of Birach Broadcasting Corporation,
    *Memorandum Opinion and Order*, 16 FCC Rcd 5015, 5018, ¶ 8 ("*Birach
    Broadcasting*").

[^28]: *Id.*

[^29]: *Id.*

[^30]: *See* Petition I at 6; Petition II at 3.

[^31]: *See* Petition I at 6; Petition II at 3.

[^32]: *See, e.g*., In the Matter of Airtouch Paging, Inc. For Consent
    to Partial Assignment of Station KCC485 to Schuylkill Mobile Fone
    Inc., *Order,* 14 FCC Rcd 9658, (CWD/WTB 1999*);* [*Listener\'s
    Guild, Inc. v. FCC,* 813 F.2d 465, 469 (D*.*C*.* Cir*.*
    1987](http://web2.westlaw.com/Find/Default.wl?DB=350&SerialNum=1987030557&FindType=Y&ReferencePositionType=S&ReferencePosition=469&AP=&RS=WLW2.80&VR=2.0&SV=Full&MT=Westlaw&FN=_top))
    ("*Listener's Guild")*. *See also Clarklift*, 16 FCC Rcd at 14846,
    ¶¶ 6-7.

[^33]: *See Clarklift,* 16 FCC Rcd at 14846, ¶¶ 6-7; In the Matter of
    Champion Communications Services, Inc., *Order*, 15 FCC Rcd 12832, ¶
    2 (PSPWD/WTB 2000).

[^34]: *[Listener\'s
    Guild](http://web2.westlaw.com/Find/Default.wl?DB=350&SerialNum=1987030557&FindType=Y&ReferencePositionType=S&ReferencePosition=469&AP=&RS=WLW2.80&VR=2.0&SV=Full&MT=Westlaw&FN=_top),*
    813 F.2d at 468-69 (Commission has discretion to determine whether a
    substantial and material question of fact is presented requiring
    resolution by courts of competent jurisdiction).

[^35]: *See* Petition I at 6; Petition II at 4; Letter from Russell Fox
    (counsel for Pacific Wireless), to Magalie R. Salas, Secretary FCC,
    dated May 6, 2002 ("Pacific Wireless May 6, 2002, Letter") at 1.

[^36]: *See* December 20, 2001 Letter Decision at 1-2; February 5, 2002,
    Letter Decision at 1-2.

[^37]: *See* 47 C.F.R. § 90.157.

[^38]: *Id*.

[^39]: *See* Pacific Wireless December 20, 2001 Letter at 1.

[^40]: *See* Pacific Wireless May 6, 2002 Letter at 1; Delta Letter I at
    1; Delta Letter II at 1. Pacific Wireless does not raise this
    argument in its Petitions, but rather does so in a subsequently
    filed letter dated May 6, 2002. *See* Pacific Wireless May 6, 2002
    Letter*.* There is no evidence in the record that Pacific Wireless
    was placed on notice of the Delta Letters prior to filing the
    Petitions; nonetheless, we will exercise our discretion and consider
    this argument notwithstanding the procedural defect.

[^41]: *See* February 5, 2002 Letter Decision at 1-2.

[^42]: *Id*.

[^43]: *See* Delta Letter I at 1; Delta Letter II at 1.

[^44]: *See id.*; Lodi Letter at 1-2.

[^45]: *Id.*

[^46]: *See* In re Application of Communico Oceanic Corporation
    (Assignor) and KHVH Inc. (Assignee) for Assignment of License Permit
    for KPOI Honolulu, Hawaii, *Memorandum Opinion and Order,* 68 FCC 2d
    638 (1978) (unsworn statements in reconsideration proceeding before
    the Commission are not pled with "particularity" and are accorded
    less weight than sworn affidavits); 47 C.F.R. § 1.106(d).

[^47]: ^?^ 47 C.F.R. § 90.155. Pacific Wireless' reliance on *Dale Kane*
    as authority for this argument is misplaced because, in that matter,
    the Commission determined that the license automatically cancelled
    based on unrefuted evidence of the licensee's failure to construct
    and operate its facilities pursuant to the Commission's rules. *See*
    In re Dale Kane, *Order,* 14 FCC Rcd 14052, 14057, ¶ 14 (PSPWD/WTB
    1999) ("*Dale Kane")*.