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 Federal  Communications  Commission  DA  01-  98 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 WESTERN  MANAGEMENT  CORPORATION 
 Application  for  Assignment  of  Authorization  or 
 Consent  to  Transfer  of  Control  of  Licensee  for  Call 
 Signs  WNJN327,  WPER274,  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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 FCC  Form  490 
 FCC  File  No.  R375195 
 FCC  File  Nos.  D129494  and  D129495 


 FCC  Form  405A 


 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 


 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. 
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 Federal  Communications  Commission  DA  01-  98 
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 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  Mes  and  Page  Wyos  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, 


 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. 
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 Federal  Communications  Commission  DA  01-  98 
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 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 
 WPEK890s  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  Corporations  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 


 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. 
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 Western  Management  Corporation  did  not  have  the  authority  to  file  an  assignment  application  relating  to 
 the  four  stations  on  July  26,  1999,  without  ComTechs  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  Corporations  consent.  30 


 7.  ComTech  filed  a  response  to  Western  Management  Corporations  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 


 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. 
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 Federal  Communications  Commission  DA  01-  98 
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 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  Corporations  assignment  application,  alleging  that  it  had  purchased  all  of  the 
 stock  of  America  West,  and  thereby  has  beneficial  ownership  of  America  Wests  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  Corporations 
 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  Commissions  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. 


 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. 
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 Federal  Communications  Commission  DA  01-  98 
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 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  Commissions  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 


 Dwana  R.  Terry  Chief,  Public  Safety  and  Private  Wireless  Division 
 Wireless  Telecommunications  Bureau 
6