**DA 04-1624**

**Released: June 3, 2004**

**DOMESTIC SECTION 214 APPLICATION FILED FOR *NUNC PRO TUNC* APPROVAL TO
TRANSFER CONTROL OF MOTION TELECOM, INC. TO WIRELESS CHANNELS, INC.**

**STREAMLINED Pleading Cycle Established**

**WC Docket No. 04-147**

**Comments Due: June 17, 2004**

**Reply Comments Due: June 24, 2004**

On March 31, 2004, Motion Telecom, Inc. (MTI), the Victor and Anamaria
Mitchell Family Partnership (Mitchell Family LP) and Wireless Channels,
Inc. (WCI) (collectively, Applicants) filed an application, pursuant to
sections 63.03 and 63.04 of the Commission's rules,[^1] requesting *nunc
pro tunc*[^2] approval of a transfer of control of MTI to WCI.[^3]

Applicants assert that this transaction is entitled to presumptive
streamlined treatment under rule 63.03(b)(1)(ii) because the transferee
is not a telecommunications provider.[^4]

MTI is a Colorado corporation that is a wholly-owned subsidiary of
Advantage Advisory Service, Inc. (AAS), a wireless distributor. MTI is
authorized under section 214 of the Communications Act to provide resold
telecommunications services to domestic points on a non-dominant basis.
MTI resells intrastate and interstate long distance service, including
private line, frame relay switched and data services within the
continental 48 states. Before the transaction, the Mitchell Family LP
held 69.6 percent of AAS stock. Victor S. Mitchell and Anamaria F.
Mitchell, both American citizens, each held a 49.5 percent limited
partnership interest in the Mitchell Family LP. Mr. Mitchell is also the
1 percent general partner in the Mitchell Family LP. Another 26.1
percent of AAS was held by the Advantage Advisory Inc. Employee Stock
Ownership Plan and Trust (AAS ESOP).

Applicants state that WCI is not a common carrier and does not hold
section 214 authorizations. Enhanced Colorado Issuer, LLC has a 15.09
percent interest in WCI. Enhanced Colorado Issuer, LLC is a wholly-owned
subsidiary of Enhanced Capital Partners, LLC. The ten percent or greater
interest holders of Enhanced Colorado Partners, LLC are Andrew Paul (20
percent), Reservoir Capital Partners (19.33 percent) and KHC, LLC (11.99
percent). Coral Technology Partners VI, LP and Andrew M. Paul each hold
a 27.16 percent interest in WCI. The general partner and one percent
interest holder in Coral Technology Partners VI, LP is Coral Management
Partners VI, LLC, now known as Coral's Momentum Fund Management
Partners, LLC. The ten percent interest holders of Coral's Momentum Fund
Management Partners, LLC are Yuval Almog (72.5 percent) and Todd Ortberg
(12.5 percent). North Dakota State Investment Board-Pension Trust (86
percent) is the only ten percent or greater interest holder in Coral
Technology Partners, VI, LP. Ben Joseph, Chairman and CEO of AAS and
MTI, has a 7.24 percent interest in WCI. Mr. Joseph also holds 100
percent interest in ABJ, LLC, a Delaware limited liability company with
an 11.26 percent interest in WCI. Applicants state that no post-transfer
affiliate of MTI has a ten percent or greater interest in any other
domestic telecommunications provider.[^5]

As a result of the transaction that occurred on March 10, 2004, stock
interests amounting to a 75.72 percent interest in AAS were transferred
to WCI, and the interest of the AAS ESOP was decreased to 24.28
percent.[^6]

Applicants state that approval of the transaction is in the public
interest. The Applicants maintain that, at the time the transaction was
contemplated, the Applicants did not anticipate the need for filing a
transfer of control application. The Applicants acknowledge that they
should have filed an application for approval of the transfer of control
of MTI's section 214 authorization before consummating the transaction.
Applicants claim, however, that the transaction is seamless and
transparent to customers. Applicants maintain that there will be no
change in the name of any providing carrier, no change in the format or
appearance of the customers' bills, no change in the terms, conditions
and price of service, and no change in customer service.

**[GENERAL INFORMATION]{.underline}**

The transfer of control identified herein has been found, upon initial
review, to be acceptable for filing as a streamlined application. The
Commission reserves the right to return any transfer of control
application if, upon further examination, it is determined to be
defective and not in conformance with the Commission's rules and
policies. Interested parties may file **comments on or before June 17,
2004** and **reply comments on or before June 24, 2004**.[^7] Unless
otherwise notified by the Commission, Applicants are permitted to
transfer control on the 31^st^ day after the date of this notice.[^8]
Comments may be filed using the Commission\'s Electronic Comment Filing
System (ECFS) or by filing paper copies. *See Electronic Filing of
Documents in Rulemaking Proceedings*, 63 Fed. Reg. 24121 (1998).

Comments filed through the ECFS can be sent as an electronic file via
the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>. Generally, only
one copy of an electronic submission must be filed. If multiple docket
or rulemaking numbers appear in the caption of this proceeding, however,
commenters must transmit one electronic copy of the comments to each
docket or rulemaking number referenced in the caption. In completing the
transmittal screen, commenters should include their full name, U.S.
Postal Service mailing address, and the applicable docket or rulemaking
number. Parties may also submit an electronic comment by Internet
e-mail. To get filing instructions for e-mail comments, commenters
should send e-mail to ecfs@fcc.gov, and should include the following
words in the subject line \"get form \<your e-mail address\>.\" A sample
form and directions will be sent in reply.

Parties who choose to file by paper must file an original and four
copies of each filing. If more than one docket or rulemaking number
appears in the caption of this proceeding, commenters must submit two
additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S. Postal
Service mail). The Commission\'s contractor, Natek, Inc., will receive
hand-delivered or messenger-delivered paper filings for the
Commission\'s Secretary at 236 Massachusetts Avenue, N.E., Suite 110,
Washington, D.C. 20002. The filing hours at this location are 8:00 a.m.
to 7:00 p.m. All hand deliveries must be held together with rubber bands
or fasteners. Any envelopes must be disposed of before entering the
building. Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to

9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service
first-class mail, Express Mail, and Priority Mail should be addressed to
445 12th Street, SW, Washington, D.C. 20554. All filings must be
addressed to the Commission\'s Secretary, Office of the Secretary,
Federal Communications Commission.

**In addition, one copy of each pleading must be sent to each of the
following:**

(1) the Commission's duplicating contractor, Best Copy and Printing,
    Inc., 445 12th Street, SW, Room CY-B402, Washington, DC 20554,
    telephone 1-800-378-3160, or via e-mail
    [[www.bcpiweb.com]{.underline}](http://WWW.BCPIWEB.COM/).

(2) Tracey Wilson, Competition Policy Division, Wireline Competition
    Bureau, 445 12^th^ Street, S.W., Room 5-C437, Washington, D.C.
    20554; e-mail: <tracey.wilson-parker@fcc.gov>;

(3) Dennis Johnson, Competition Policy Division, Wireline Competition
    Bureau, 445 12^th^ Street, S.W., Room 6-A461, Washington, D.C.
    20554; e-mail:
    [dennis.johnson@fcc.gov](mailto:dennis.johnso@fcc.gov);

(4) Julie Veach, Competition Policy Division, Wireline Competition
    Bureau, 445 12^th^ Street, S.W., Room 5-C124, Washington, D.C.
    20554; e-mail: <julie.veach@fcc.gov>;

(5) Susan O'Connell, Policy Division, International Bureau, 445 12^th^
    Street, S.W., Room 7-B544, Washington, D.C. 20554; email:
    [susan.o'connell@fcc.gov](mailto:cynthia.bryant@fcc.gov); and

(6) Christopher Killion, Office of General Counsel, 445 12^th^ Street,
    S.W., Room 8-C740, Washington, D.C. 20554; e-mail:
    <chris.killion@fcc.gov>.

Filings and comments are also available for public inspection and
copying during regular business hours at the FCC Reference Information
Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC,
20554. They may also be purchased from the Commission\'s duplicating
contractor, the Commission's duplicating contractor, Best Copy and
Printing, Inc., Portals II, 445 12th Street, SW, Room CY-B402,
Washington, DC 20554, telephone 1-800-378-3160, or via e-mail
[www.bcpiweb.com](http://www.bcpiweb.com/)[.]{.underline}

For further information, please contact Tracey Wilson, at (202)
418-1394, or Dennis Johnson at (202) 418-0809.

\- **FCC** -

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[^1]: 47 C.F.R §§ 63.03, 63.04; *see* 47 U.S.C. § 214.

[^2]: The term *nunc pro tunc*, meaning "now for then" refers to acts
    allow to be done after the time when they should be done, with a
    retroactive effect. *See* [Black's Law Dictionary]{.smallcaps} 1069
    (6^th^ ed. 1990).

[^3]: Applicants are also filing an application for consent to transfer
    control of authorization for international services. Any action on
    this domestic 214 application is without prejudice to Commission
    action on other related pending applications.

[^4]: 47 C.F.R. § 63.03(b)(1)(ii); *see* Amendment to Application for
    Authorization of Transfer of Control Relating to Section 214
    Authorization for Resale of Domestic Telecommunications Services, WC
    Docket No. 04-147 at 4 (filed May 14, 2004) (MTI Amendment);
    Correction to Application for Authorization of Transfer of Control,
    Letter from Elizabeth R. Sachs and Marilyn S. Mense, Counsel to
    Motion Telecom, Inc. et al., to William Maher, Chief, Wireline
    Competition Bureau, Federal Communications Commission, WC Docket No.
    04-147 (filed May 28, 2004).

[^5]: *See* MTI Amendment at 4 (noting that Applicants will further
    amend their application if it is subsequently determined that North
    Dakota State Investment Board-Pension has a ten percent or greater
    interest in another domestic telecommunications provider).

[^6]: *See* Request for Special Temporary Authority, Letter from Mark
    Gritz, Motion Telecom, Inc., et al., to Mr. William Maher, Chief,
    Wireline Competition Bureau, Federal Communications Commission, WC
    Docket No. 04-147 (filed May 13, 2004, granted June 3, 2004).

[^7]: *See* 47 C.F.R. § 63.03(a).

[^8]: Such authorization is conditioned upon receipt of any other
    necessary approvals from the Commission in connection with the
    proposed transaction.