**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| **In the Matter of**             | * | DA 03-2606                   |
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| **Airadigm Communications,       | ) |                              |
| Inc.**                           | * |                              |
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| Motion to Clarify and Dismiss as |   |                              |
| Moot                             | * |                              |
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| Contingent Emergency Petition    | ) |                              |
| for Reinstatement of C and F     | * |                              |
| Block PCS Licenses or for        | * |                              |
| Partial Waiver of Section        |   |                              |
| 1.2110(f) of the Commission's    | * |                              |
| Rules                            | * |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: April 10, 2006 Released: April 10, 2006**

By the Acting Chief, Wireless Telecommunications Bureau:

**I. INTRODUCTION**

1\. The Wireless Telecommunications Bureau ("Bureau") has before it a
Petition for Reconsideration and Clarification ("Petition for
Reconsideration") filed by Telephone and Data Systems, Inc. ("TDS") of
an *Order,*[^1] which granted a Motion of Airadigm Communications, Inc.
("Airadigm") and dismissed as moot a then-pending Petition.[^2] For the
reasons discussed below, we dismiss the Petition for Reconsideration.

**II. BACKGROUND**

2\. Airadigm participated in the C and F block Personal Communications
Services ("PCS") auctions and won fifteen (15) licenses,[^3] all of
which were financed pursuant to the Commission's installment payment
program.[^4] On July 28, 1999, Airadigm filed for bankruptcy protection
under Chapter 11 of the United States Bankruptcy Code.[^5]

3\. Airadigm subsequently filed its Petition with the Commission on
February 7, 2000, arguing that its licenses could not automatically
cancel for non-payment while it was in bankruptcy.[^6] In that filing,
Airadigm stated that, out of an abundance of caution, it alternatively
sought reinstatement of its licenses or waiver of the Commission's
automatic license cancellation rule.[^7]

4\. On November 15, 2000, the bankruptcy court confirmed Airadigm's
joint plan of reorganization ("Confirmed Plan"). The Confirmed Plan
provided for payment in full of the FCC's secured claim; it also
provided for the funding of the plan subject to certain
contingencies.[^8] Several provisions of the Confirmed Plan were later
the subject of litigation in the bankruptcy court, as described *infra*.

5\. On February 4, 2002, Airadigm filed a Motion with the Commission,
seeking clarification that, consistent with the D.C. Circuit's June 22,
2001 *NextWave Decision,*[^9] Airadigm's licenses did not cancel for
non-payment while it was in bankruptcy.[^10] In its Motion, Airadigm
argued that the law was clear that licenses could not cancel for
non-payment of installment debt while a licensee was in Chapter 11 and,
therefore, Airadigm's licenses did not cancel.[^11] In addition to
seeking clarification that its licenses had not cancelled, Airadigm also
requested that the Commission dismiss its then-pending Petition as
moot.[^12]

6\. After Airadigm filed its Motion, the Supreme Court issued its
decision in the *NextWave* matter.[^13] Based on that decision*,* the
Bureau subsequently released an *Order* that granted Airadigm's Motion
and clarified that, because Airadigm was under the protection of Chapter
11 of the Bankruptcy Code, the Commission's asserted license
cancellation was ineffective. The Bureau also dismissed Airadigm's
then-pending Petition as moot.

7\. On September 8, 2003, TDS, a secured creditor in Airadigm's
bankruptcy proceeding, filed the instant Petition for
Reconsideration.[^14] TDS sought reconsideration and clarification from
the Commission regarding whether Airadigm had the financial resources
necessary to carry out its financial obligations to the United States
government and its responsibilities as an FCC licensee.[^15]
Additionally, TDS requested that the Commission determine whether it
should accept Airadigm's "buildout" showings.[^16]

8\. In its Petition for Reconsideration, in a section entitled
"Standing," TDS explained that on August 29, 2003, Oneida Enterprise
Development Authority ("OEDA"), another interest-holder in Airadigm's
bankruptcy proceeding, had filed a motion with the bankruptcy court
seeking to establish that TDS had an obligation to fund the Confirmed
Plan.[^17] TDS explained that "the filing of the OEDA motion has now
given Petitioner an interest in the legal significance of the
*Order*."[^18] TDS further explained that, prior to the filing of the
OEDA motion, TDS had no interest in the *Order*; that apart from TDS'
potential liability to fund as alleged in the OEDA motion, "Petitioner's
status was that of creditor and potential acquiror of certain of
Airadigm's licenses, with no reason to participate in the licensing
proceeding, in which its interests were aligned with Airadigm's."[^19]

8\. In response, Airadigm filed an Opposition arguing that TDS lacked
standing to challenge the Bureau's decision.[^20] Airadigm maintained
that the substantive questions presented by TDS were not germane to the
underlying *Order* and, therefore, as new issues not previously
presented to the

Commission, could not be raised in a petition for reconsideration.[^21]
In its Reply, TDS countered that TDS did have standing, and that the
Bureau's consideration need not be limited to the narrow issue of
automatic cancellation.[^22]

9\. On November 17, 2003, the bankruptcy court issued an order resolving
the funding dispute between OEDA and TDS.[^23] The order denied OEDA's
motion and rejected its argument that TDS had an obligation to fund the
Confirmed Plan. The bankruptcy court's order was not appealed and
subsequently became final.

10\. Pursuant to a settlement, TDS subsequently acquired OEDA's interest
in the Airadigm bankruptcy proceeding.[^24]

**III. DISCUSSION**

11\. We dismiss the Petition for Reconsideration on procedural grounds.
We conclude that the substantive issues raised by TDS are outside the
scope of the *Order*; the issues presented in the Petition for
Reconsideration should have been raised, if at all, in a separate
proceeding. We also observe that TDS specifically predicated its
interest in this matter on the pendancy of a motion adverse to its
interests that was filed in Airadigm's bankruptcy proceeding. Although
TDS also maintained that the public interest would be served by the
Commission addressing its Petition for Reconsideration, TDS itself
conceded that OEDA's "August 29 Motion \[had\] given \[it\] a newfound
interest in the Order and the issues raised in \[its\] Petition."[^25]
Insofar as OEDA's motion was denied and is no longer subject to appeal,
the self-asserted basis for TDS's interest in the *Order* has
evaporated, leading us to conclude that TDS lacks standing to pursue
this case.

12\. The purpose of the Bureau's *Order* was to address the Motion filed
by Airadigm, which sought clarification on the question of whether
Airadigm's licenses had automatically cancelled while Airadigm was in
Chapter 11 bankruptcy. The Bureau concluded that the *NextWave* decision
controlled, and that Airadigm's licenses had not automatically
cancelled, for the reasons articulated by the Court in its *NextWave*
decision. TDS's Petition for Reconsideration did not attempt to
distinguish the two cases or otherwise dispute the correctness of the
straightforward legal conclusion that *NextWave* controlled on the
automatic cancellation question. Rather, TDS sought to initiate a
separate investigation of the financial and related qualifications of
Airadigm to remain an FCC licensee, matters outside the scope of the
narrow question raised in Airadigm's Motion and addressed in the
Bureau's *Order*. Contrary to TDS's arguments, the resolution of such
matters was not necessary for the Bureau to address the Motion that had
been filed by Airadigm.

13\. Moreover, the issues raised by TDS were not even germane to
Airadigm's Motion, which was designed solely to determine the state of
the law regarding the automatic cancellation of Airadigm's licenses.
Instead of seeking reconsideration of the Bureau's legal conclusions on
that matter, TDS instead attempted to use the Bureau's *Order* as a
vehicle for putting at issue Airadigm's qualifications to remain a
licensee. As a general matter, the Commission takes character
qualification issues very seriously, and the fact that a licensee avails
or has availed itself of the protections of the bankruptcy laws does not
otherwise insulate that licensee from its regulatory obligations.[^26]
But TDS's attempt to piggyback its request for an agency investigation
of licensee qualifications, by means of a motion to reconsider, onto
Airadigm's own limited and unrelated request regarding the legality of
automatic license cancellation does not, as TDS asserts, serve the
public interest, when appropriate procedures exist for raising
legitimate questions about a licensee's continuing compliance with its
regulatory obligations.[^27] For the foregoing reasons, we conclude that
the Petition for Reconsideration is procedurally defective and should be
dismissed.

14\. We also conclude that TDS lacks standing. Under Section 1.106(b)(1)
of the Commission's rules, a person who is not a party must establish
that it has an interest in the proceeding in order to file a petition
for reconsideration: the petition "shall state with particularity the
manner in which the person's interests are adversely affected by the
action taken."[^28] In filing its Petition for Reconsideration, TDS
predicated its Section 1.106(b)(1) standing on the possibility that the
bankruptcy court might grant OEDA's pending motion in the Airadigm
bankruptcy proceeding and thereby require TDS to fund the Confirmed
Plan. In such case, a decision by the Bureau finding that Airadigm's
licenses had not automatically cancelled would assertedly have kept TDS
on the hook for funding the Plan; in contrast, a decision by the Bureau
that resulted in the loss of the licenses would disrupt the Plan and
likely eliminate TDS's potential funding obligation. The question,
however, of whether this connection between TDS's interests and the
Bureau's *Order* would satisfy Section 1.106(b)(1) is moot. The
bankruptcy court denied OEDA's motion some time ago, and the court's
denial is no longer subject to review. Accordingly, TDS now occupies the
same position that it did before OEDA filed its motion, when TDS, in its
own words, had "no reason to participate in th\[is\] licensing
proceeding," because its interests were aligned with those of
Airadigm.[^29] Without any evidence that TDS's interest is adversely
affected by the Bureau's action, we find that TDS lacks standing to file
its Petition for Reconsideration of the *Order*. [^30]

**IV. ORDERING CLAUSE**

15\. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 303
of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and
303(r), and section 0.331 of the Commission's rules, 47 C.F.R. § 0.331,
the Petition for Reconsideration and Clarification is DISMISSED on the
alternative grounds that the matters presented are outside the scope of
the proceeding; and that the Petitioner lacks standing.

> **FEDERAL COMMUNICATIONS COMMISSION**

Catherine W. Seidel

Acting Chief

Wireless Telecommunications Bureau

**APPENDIX A**

**CALL SIGN MARKET BTA**

### 

KNLF394 Appleton-Oshkosh, WI 018

KNLF395 Cedar Rapids, IA 070

KNLF396 Eau Claire, WI 123

KNLF397 Fond du Lac, WI 148

KNLF398 Green Bay, WI 173

KNLF399 Janesville-Beloit, WI 216

KNLF400 La Crosse, WI 234

KNLF401 Madison, WI 272

KNLF402 Manitowoc, WI 276

KNLF403 Sheboygan, WI 417

KNLF404 Stevens-Point-Marshfield-Wisconsin Rapids, WI 432

KNLF405 Waterloo-Cedar Falls, IA 462

KNLF406 Wausau-Rhinelander, WI 466

KNLF881 Dubuque, IA 118

KNLG278 Marinette, WI 279

[^1]: *See* In the Matter of Airadigm Communications, Inc., *Order*, 18
    FCCR 16296 (2003). The *Order* resolved two pleadings filed by
    Airadigm Communications, Inc. including: (1) Contingent Emergency
    Petition for Reinstatement or in the Alternative for Waiver filed by
    Airadigm Communications, Inc., on February 7, 2000 ("Petition") and
    (2) Motion to Clarify and Dismiss as Moot filed by Airadigm
    Communications, Inc. on February 4, 2002 ("Motion").

[^2]: *See* Petition for Reconsideration and Clarification filed by
    Telephone Data Systems, Inc., on September 8, 2003 ("Petition for
    Reconsideration").

[^3]: Airadigm's fifteen PCS licenses, won in Auction Nos. 5 and 11,
    covered the Appleton -- Oshkosh, Eau Claire, Fond du Lac, Green Bay,
    Janesville-Beloit, La Cross, Madison, Manitowoc, Sheboygan, Stevens
    Point-Marshfield-Wisconsin Rapids, Wausau-Rhinelander, and
    Marinette, Wisconsin Basic Trading Areas, and the Cedar Rapids,
    Waterloo-Cedar Falls, and Dubuque, Iowa Basic Trading Areas. See
    also Attachment A.

[^4]: 47 C.F.R.§§ 1.2110, 24.711 and 24.716 (1999). A detailed history
    of the installment payments made by Airadigm prior to declaring
    bankruptcy can be found in the *Order*. *See Order* at ¶ 3.

[^5]: *See* *In re Airadigm Communications*, *Inc*., Case No. 99-335000
    (Bankruptcy, W.D.Wis. 1999) ("*Airadigm Bankruptcy Proceeding\")*.

[^6]: Petition at 2.

[^7]: *Id.* The Bureau issued a Public Notice on February 24, 2000
    seeking comment on Airadigm's Petition by March 17, 2000 and replies
    by March 31, 2000. Wireless Telecommunications Bureau Seeks Comment
    on Airadigm Communications Inc.'s Contingent Emergency Petition for
    Reinstatement or in the Alternative for Waiver, *Public Notice*, DA
    00-368 (rel. Feb. 24, 2000) ("February 24 Public Notice"). Fifteen
    comments (fourteen in support and one in opposition) and two reply
    comments were received in response to the Public Notice.

[^8]: *See* *Order Confirming the Plan of Reorganization* (Bank. W.D.
    Wisc. November 15, 2000).

[^9]: *NextWave v. FCC*, 254 F.3d 130 (D.C. Cir. 2001), *affirmed,* 537
    U.S. 293, 123 S.Ct. 832 (2003).

[^10]: Motion at 2-3.

[^11]: *Id*. at 2.

[^12]: *Id.* at 3.

[^13]: *Federal Communications Commission v. NextWave Personal
    Communications, et al.,* 537 U.S. 293, 123 S.Ct. 832, 840 (2003)
    ("*NextWave Decision*") (noting that Section 525 of the Bankruptcy
    Code "prevented the FCC from \... canceling licenses because of
    failure to pay debts dischargeable by bankruptcy courts").

[^14]: *See generally* Petition for Reconsideration.

[^15]: *Id*. at 2.

[^16]: *Id*.

[^17]: *Id.* at 4-6.

[^18]: *Id.* at 5.

[^19]: *Id.*

[^20]: *See* Motion to Dismiss and Opposition to Petition of Telephone
    Data Systems For Reconsideration and Clarification, filed by
    Airadigm Communications, Inc. on September 24, 2003 ("Opposition")
    at 5.

[^21]: *Id*. at 5, 11.

[^22]: *See* Reply, filed by Telephone Data Systems, Inc. on October 1,
    2003 ("Reply") at 1.

[^23]: *See Amended Order Denying Motion of Oneida Enterprise
    Development Authority for an Order Interpreting Confirmed Plan and
    Enforcing its Terms*, (Bank. W.D. Wisc. Nov. 17, 2003).

[^24]: *See Order Substituting Claimant Pursuant to R. 3001(e)(2)*,
    (Bank. W.D. Wisc. Aug. 4, 2004).

[^25]: *See* Petition for Reconsideration at 5.

[^26]: For instance, where a party has emerged from bankruptcy
    protection, it is clear that the Commission's regulatory
    requirements with regard to transferring licenses and installment
    payments apply in full force. *See e.g.*, In the Matter of Leap
    Wireless International, Inc. and its Subsidiaries, Debtors in
    Possession and Leap Wireless International, Inc. and its
    Subsidiaries, *Memorandum Opinion and Order*, 19 FCCR 14909 (2004).

[^27]: We are not suggesting that further proceedings are or are not
    warranted; only that a challenge to the Bureau's *Order* is a wholly
    inappropriate vehicle for raising the issues that TDS has
    identified.

[^28]: 47 C.F.R. § 1.106(b)(1). The Section 1.106(b)(1) requirement for
    establishing standing to file the petition has a second element: the
    non-party must also "show good reason why it was not possible for
    him to participate in the earlier stages of the proceeding." *Id.*

[^29]: Petition for Reconsideration at 5.

[^30]: *Cf. 21st Century Telesis Joint Venture v*. *FCC*, 318 F.3d 192,
    197-198 (D.C. Cir. 2003) (explaining that the court must evaluate
    mootness and its effect on a petitioner's Article III standing
    through all stages of the controversy) (citations omitted). Although
    agencies like the FCC are not bound by the same Article III
    restrictions that would compel a court to dismiss a claim for lack
    of standing, the FCC generally follows the principles of Article III
    standing and will not decide a case in which the petitioner no
    longer has an interest, absent some compelling public interest
    reason to the contrary. For the reasons discussed in the text above,
    the peculiar circumstances of this case fall short of that standard.