FCC 94D-12 Federal Communications Commission Record 9 FCC Red No. 23
Before the
Federal Communications Commission 
Washington, D.C. 20554
PR Docket No. 93-231
In the Matters of
Imposition of Forfeiture Against
CAPITOL RADIOTELEPHONE INC. 
d/b/a Capitol Paging 
1420 Kanawha Blvd. E 
Charleston, West Virginia 25301
Former Licensee of Station WNSX-646 in 
the Private Land Mobile Radio Services
and
Revocation of License of
CAPITOL RADIO TELEPHONE INC. 
d/b/a Capitol Paging 
1420 Kanawha Blvd. E 
Charleston, West Virginia 25301
Licensee of Station WNDA-400 in the 
Private Land Mobile Radio Services
and
Revocation of License of
CAPITOL RADIO TELEPHONE INC. 
d/b/a Capitol Paging 
1420 Kanawha Blvd. E 
Charleston, West Virginia 25301
Licensee of Station WNWW-636 in the 
Private Land Mobile Radio Services
and
Revocation of License of
CAPITOL RADIOTELEPHONE COMPANY, INC. 
1420 Kanawha Boulevard East 
Charleston, West Virginia 25301
Licensee of Station KWU-373 in the 
Public Mobile Radio Service
and
Revocation of License of
CAPITOL RADIOTELEPHONE COMPANY, INC.
P.O. Box 8305
South Charleston, West Virginia 25303
Licensee of Station KUS-223 in the 
Public Mobile Radio Service
and
Revocation of License of
CAPITOL RADIOTELEPHONE CO., INC.
1420 Kanawha Boulevard East 
Charleston, West Virginia 25301
Licensee of Station KQD-614 in the 
Public Mobile Radio Service
and
Revocation of License of
CAPITOL RADIOTELEPHONE COMPANY, INC.
1420 Kanawha Boulevard
East Charleston, West Virginia 25301
Licensee of Station KWU-204 in the 
Public Mobile Radio Service
Appearances
Kenneth E. Hardman, on behalf of Capitol 
Radiotelephone Company, Inc,; Frederick M. Joyce and 
Christine McLaughlin, on behalf of Ram Technologies, Inc.; 
and Ralph A. Haller, Charles E. Dziedzic, Y. Paulette Laden 
and Carol Fox Foelak, on behalf of the Private Radio 
Bureau.
INITIAL DECISION OF ADMINISTRATIVE LAW 
JUDGE JOSEPH CHACHKIN
Issued: October 21, 1994; Released: October 31, 1994
PRELIMINARY STATEMENT
1. Capitol 1 is the licensee of the above captioned public 
mobile radio service stations and was the licensee or ap 
plicant for private carrier paging (PCP) station WNSX-646 
and associated private land mobile stations WNDA-400 and
The above-captioned corporate licenses are collectively re ferred to as "Capitol"
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9 FCC Red No. 23 Federal Communications Commission Record FCC 94D-12
WNWW-636. 2 The Hearing Designation Order, Order to 
Show Cause and Notice of Opportunity for Hearing, (HDO), 
8 FCC Red 6300 (1993), specified the following issues:
(a) Whether, during the month of October 1990, 
from November 15. 1990 through November 18, 
1990, on March 4, 1991, on March 19, 1991, and/or 
from July 17, 1991 through July 19, 1991, in light of 
the evidence adduced, Capitol Radiotelephone Inc., 
Capitol Radio Telephone Inc., d/b/a Capitol Paging, 
Capitol Radiotelephone Company, Inc., and Capitol 
Radiotelephone Co., Inc. willfully, maliciously and/or 
repeatedly caused private land mobile radio station 
WNSX-646 to transmit in a manner that caused 
harmful interference, in violation of Section 
90.403(e) of the Commission's Rules, 476 C.F.R. 
90.403(e), and/or in violation of Section 333 of the 
Communications Act of 1934, as amended. 47 U.S.C. 
333.
(b) Whether, on August 12, 13, 14, and 15, 1991, in 
light of the evidence adduced, Capitol 
Radiotelephone Inc., Capitol Radio Telephone Inc. 
d/b/a Capitol Paging, Capitol Radiotelephone Com 
pany, Inc., and Capitol Radiotelephone Co., Inc. will 
fully, maliciously and/or repeatedly caused private 
land mobile radio station WNSX-646 to transmit in a 
manner that caused harmful interference, in viola 
tion of Section 90.403(e) of the Commission's Rules, 
47 C.F.R. 90.403(e), and/or in violation of Section 
333 of the Communications Act of 1934, as amended, 
47 U.S.C. 333.
(c) Whether, from November 15, 1990 through No 
vember 18, 1990, on March 4, 1991, and/or from 
July 17, 1991 through July 19, 1991, in light of the 
evidence adduced, Capitol Radiotelephone Inc., 
Capitol Telephone Inc. d/b/a Capitol Paging, Capitol 
Radiotelephone Company Inc., and Capitol 
Radiotelephone Co., Inc., willfully and/or repeatedly 
caused private land mobile radio station WNSX-646 
to transmit communications for testing purposes in a 
manner such that the tests were not kept to a mini 
mum and every measure was not taken to avoid 
harmful interference, in violation of Section 
90.405(a)(3) of the Commission's Rules. 47 C.F.R. 
90.405(a)(3).
(d) Whether, on August 12, 13, 14, and/or 15, 1991, 
in light of the evidence adduced, Capitol 
Radiotelephone Inc., Capitol Radio Telephone Inc. 
d/b/a Capitol Paging, Capitol Radiotelephone Com 
pany Inc., and Capitol Radiotelephone Co., Inc. will 
fully and/or repeatedly caused private land mobile 
radio station WNSX-646 to transmit communications 
for testing purposes in a manner such that the tests 
were not kept to a minimum and every measure was 
not taken to avoid harmful interference, in violation 
of Section 90.405(a)(3) of the Commission's Rules. 47 
C.F.R 90.405(a)<3).
(e) Whether, on August 12, 13, 14, and/or 15, 1991, 
in light of the evidence adduced, Capitol 
Radiotelephone Inc., Capitol Radio Telephone Inc. 
d/b/a Capitol Paging, Capitol Radiotelephone Com 
pany Inc., and Capitol Radiotelephone Co., Inc. will 
fully and/or repeatedly caused private land mobile 
radio station WNSX-646 to identify its transmissions 
by Morse code at a rate less than 20-25 words per 
minute, in violation of Section 90.425(b)(2) of the 
Commission's Rules, 47 C.F.R. 90.425(b)(2).
(f) Whether from November 15, 1990 through No 
vember 18, 1990 Capitol Radiotelephone Inc. Capitol 
Radio Telephone Inc. d/b/a Capitol Paging, Capitol 
Radiotelephone Company Inc., and Capitol 
Radiotelephone Co., Inc. caused private land mobile 
radio station WNSX-646 to willfully and/or repeat 
edly transmit on the frequency 152.480 MHz for 
purposes other than completing private carrier pages, 
in violation of Sections 90.173(b) and 90.403(c) of 
the Commission's Rules, 47 C.F.R. 90.173(b) and 
90.403(c). Further, whether the content of these 
transmissions included common carrier paging traffic 
in violation of Section 90.415(b) of the Commission's 
Rules, 47 C.F.R. 90.415(b).
(g) Whether, beginning on or about August 27, 1992 
and continuing to the present. Capitol 
Radiotelephone Inc., Capitol Radio Telephone Inc. 
d/b/a Capitol Paging, Capitol Radiotelephone Com 
pany Inc.. and Capitol Radiotelephone Co., Inc. 
caused private land mobile radio station WNSX-646 
to willfully and/or repeatedly transmit on the fre 
quency 152.480 MHz for purposes other than com 
pleting private carrier pages, in violation of Sections 
90.173(b) and 90.403(c) of the Commission's Rules, 
47 C.F.R.  90.173(b) and 90.403(c). Further, 
whether the content of these transmissions included 
common carrier paging traffic in violation of Section 
9().415(b) of the Commission's Rules, 47 C.F.R. 
90.415(b).
(h) Whether in written and/or oral statements to the 
Commission or its staff with respect to the above 
matters, Capitol Radiotelephone Inc., Capitol Radio 
Telephone, Inc., Capitol Radiotelephone Company 
(Co.) Inc., and/or any of these entities doing business 
as Capitol Paging misrepresented facts to the Com 
mission and/or was lacking in candor.
(i) Whether, in light of the findings under paragraph 
(h), any of the above captioned applicants/licensees 
willfully or repeatedly violated Section 1.17 of the 
Commission's Rules, 47 C.F.R. 1.17.
(j) In light of the findings under paragraphs (a) 
through (i), whether Capitol Radiotelephone Inc., 
Capitol Radio Telephone Inc., Capitol 
Radiotelephone Company (Co.), Inc., and/or any of 
these entities doing business as Capitol Paging have 
the requisite basic character qualifications to con 
tinue to remain Commission licensees.
2 Capitol's license for PCP station WNSX-646 was granted on 
September 12, 1990. The grant was subsequently set aside and 
the application returned to pending status. Capitol's request to 
dismiss the application was granted by Memorandum Opinion 
and Order, FCC 93M-763, released Dec. 22, 1993. WNDA-400
and WNWW-636 are licenses for a frequency used as a link 
between the PCP station's transmitter sites in Charleston and 
Huntington (Cap. Ex. 15, pp. 4-6; Tr. 1029-1031). The licenses 
cancelled automatically pursuant to Section 90.157(a) of the 
Rules upon dismissal of Capitol's application.
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FCC 94D-12 Federal Communications Commission Record 9 FCC Red No. 23
(k) In light of the findings under paragraphs (a) 
through (j), whether Capitol Radiotelephone Inc., 
Capitol Radio Telephone Inc., Capitol 
Radiotelephone Company (Co.), Inc., and/or any of 
these entities doing business as Capitol Paging are 
qualified to retain each of their respective licenses set 
forth in the caption of this proceeding.
(1) In light of the findings under paragraphs (a) 
through (k), whether any or all of the capitol radio 
station licenses should be revoked.
(m) In light of the findings under paragraphs (a) 
through (1), whether Capitol Radiotelephone Inc. 
d/b/a Capitol Paging filed an application for a private 
carrier paging facility on the frequency 152.480 MHz 
in Huntington/Charleston, West Virginia (File No. 
0190207) primarily for the purpose of obtaining a 
license in order to cause harmful interference to 
station WNJN-621 licensed to RAM Technologies 
Inc.
(n) In light of the findings under paragraphs (a) 
through (M), whether the application of Capitol 
Radiotelephone Inc. d/b/a Capitol Paging for a private 
carrier paging facility on the frequency 152.480 MHz 
in Huntington/Charleston, West Virginia (File No. 
0190207) should be granted.3
2. The Private Radio Bureau (PRB) and Ram Technol 
ogies, Inc. (RAM) were named parties to this proceeding. 
The HDO placed the burden of proceeding and the burden 
of proof on the PRB with respect to all the issues except 
for the now deleted issue n.
3. The prehearing conference was held on October 29, 
1993, and the hearing was held on February 1, 2, 3, 4, 7, 8 
and 9, 1994. The record was closed at the conclusion of the 
hearing on February 9. Order, FCC 94M-68, released Feb. 
14, 1994. Proposed findings and conclusions were filed 
April 8, 1994 and Replies were filed May 6, 1994.
FINDINGS
4. Capitol is a radio common carrier providing common 
carrier paging and mobile radio services under various 
licenses issued under Part 22 of FCC rules. (CAP-01 at p. 
1). These licenses authorize the provision of mobile radio 
service predominately in the area around Charleston, West 
Virginia, as well as radio paging services throughout much 
of the state of West Virginia and into a portion of Ohio. 
(Id.). Capitol has been an FCC licensee for 30 years, and it 
is also certificated and regulated by the West Virginia Pub 
lic Service Commission. (Id.).
5. By far the biggest component of Capitol's business is 
its common carrier paging business, with approximately 
2,900 customers and 10,000 units in service. (CAP-01 at p. 
2; Raymond Tr. 831). Capitol also has provided telephone 
answering service in Charleston since the early 1950s; and
it also provides a variety of ancillary services such as 
facsimile transmissions and mail drops. (CAP-01 at p. 2; 
Raymond Tr. 1401).
6. Capitol's entry into the PCP business initially was the 
idea of J. Michael Raymond, Capitol's Vice President - 
Chief Operating Officer. (CAP-01 at pp. 1-2).. Capitol's 
motive in doing so was to supplement its existing paging 
services with a lower-cost paging service. (CAP-01 at p. 2).
7. Establishing a separate PCP for this purpose was pref 
erable to the alternatives for a variety of regulatory, tech 
nical and cost reasons (CAP-01 at pp. 2-5). The frequency 
152.48 MHz was chosen because it was the only VHF PCP 
frequency on which high-powered paging transmitters were 
allowed and it offered the possibility of networking. (Id.). 
Capitol's analysis and strategy decisions in this regard were 
typical of many other RCCs in the industry. (CAP-23 at 
pp. 5-8; Peters Tr. 1214).
8. According to Capitol's expert witness, Arthur K. Pe 
ters,4 existing RCC operators, such as Capitol, use PCPs as 
a means to provide low cost paging alternatives. Typically, 
in starting a PCP operation, RCCs use surplus equipment 
or equipment which can be obtained inexpensively. Once 
the subscriber load has built sufficiently, new or better 
equipment can be deployed. PCPs enjoy an obvious regula 
tory advantage over RCCs. Peters pointed out that for a 
RCC operator in a regulated state such as West Virginia to 
change its rates, it may have to subject itself to a full rate 
hearing. On the other hand, in general, PCPs enjoy 
unrestricted movement with respect to prices, transmitter 
locations and state regulatory agencies. (CAP-25 at pp. 6-8).
9. The only major difference between PCP and RCC 
systems is the requirement that PCP operations share their 
channels with each other. An RCC operation has a guar 
anteed service area which is protected from interference by 
federal regulation. However, while a PCP operator must 
share a channel, there is very little federal definition con 
cerning the method or mechanism by which a channel is 
shared. Channel sharing by its very nature reduces the 
amount of channel time available to the sharing entities 
and thus potentially caps income in addition to degrading 
service. As noted by Peters, for operators who had a large 
number of subscribers on a channel, it is also inevitable 
that they do whatever is necessary or whatever they can to 
protect their business interests. (CAP-25 at pp. 6-7).
10. At the time Capitol filed its PCP application, RAM 
was a PCP licensee on 152.48 MHz at various locations in 
Kentucky. Ohio and West Virginia under the call sign 
WNJN621, including Charleston, West Virginia and the 
Ashland, Kentucky/Huntington, West Virginia area. (CAP- 
18 at p. 3; CAP-20 at pp. 2, 12-15). RAM started its PCP 
business in early 1989. (Moyer Tr. 87). Its PCP business 
was highly successful. RAM claims to have had 5,578 pag 
ing units as of February 1990. (Tr. 870; CAP - 2 at p. 28). 
As reflected in its actions discussed, below, RAM was deter 
mined not to share the channel with Capitol or other 
competitors, notwithstanding it was required by law to do 
so.
3 Issue (n) was deleted in light of the dismissal of Capitol's 
application. Memorandum Opinion and Order, FCC 93M-763, 
released Dec. 22, 1993.
4 Peters has been engaged in the communications and broad 
cast industries since 1956. After serving as a consultant with
Hammett and Edison, he formed his own consulting firm in 
1970 and represents numerous RCC and PCP paging clients. 
Peters' is a full member of the Association of Federal Commu 
nications Consulting Engineers (AFCCE) and the IEEE and is 
registered Professional Engineer. CAP-25 at p. 2).
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9 FCC Red No. 23 Federal Communications Commission Record FCC 94D-12
11. After Capitol sent in its application to NABER5 for 
frequency coordination in December 1989, RAM promptly 
protested the application, arguing that 152.48 MHz was too 
busy from RAM's use of the channel to permit Capitol to 
be licensed. (CAP-01 at p. 6; CAP-18 at pp. 3-8, 11-18).6 
Nonetheless, NABER coordinated Capitol's application for 
152.48 MHz on March 22, 1990, and forwarded the ap 
plication to the Commission for processing and grant., 
(CAP-01 at p. 7; CAP-18 at p. 1).
12. Immediately thereafter, RAM started filing a steady 
stream of protests at the FCC attempting to prevent 
Capitol's application from being granted. (CAP-01 at p. 7; 
CAP-02; CAP-03; CAP-04; CAP-05). These protests includ 
ed a Petition to Deny pursuant to Section 309(d) of the 
Communications Act (CAP-02), and a companion Motion 
for Stay of Application (CAP-03), notwithstanding that Sec 
tion 309(d) petitions are not even permitted to be filed 
against PCP applications. (CAP-06 at p. 1).
13. In these protests RAM claimed that Capitol was 
applying for its proposed PCP license for the purpose of 
"caus[ingj harmful co-channel interference" to RAM's op 
erations. (E.g., CAP-02 at pp. 3-5). This type of allegation 
by RAM was not unique to Capitol; RAM made similar 
allegations to NABER about the intentions of another com 
petitor, Communication Service, Inc. (CSI), about this 
same time, after the competitor complained to NABER 
that RAM's operations on 152.48 MHz were violating Com 
mission rules. (CAP-18 at pp., 21-23).7
14. On August 9, 1990, the Bureau initially rejected 
RAM's various protests against Capitol as erroneous, un 
founded and unsupported. (CAP-06). However, RAM was 
undeterred and promptly filed a petition to overturn the 
Bureau's decision, along with another motion seeking to 
stay the proceedings on Capitol's application. (CAP-07; 
CAP-08; CAP-09).
15. After the Bureau rejected RAM's protest, RAM re 
cruited Carl C. Perkins, a Member of Congress from Ken 
tucky, to lobby the Commission on RAM's behalf. (CAP-18 
at p. 20). Subsequently, Congressman Perkins repeatedly 
intervened with the Commission on RAM's behalf. (CAP- 
10; CAP-01 at p. 9).
16. One of the actions Perkins requested the Commission 
to take was to require Capitol to move its proposed PCP 
operation to the frequency 157.74 MHz, which had re 
cently been made available for high-powered PCP transmit 
ters. (CAP-10). However, making that frequency switch was
undesirable for Capitol because it understood that Union 
Carbide, one of Capitol's largest common carrier paging 
customers, was using 157.74 MHz for an emergency service 
in the Charleston area. (CAP-01 at pp. 9-10).
17. Capitol understandably did not want to risk alienat 
ing Union Carbide by initiating a PCP service on that 
frequency. ( Id. ). Also, moving to 157.74 MHz was 
undesirable for Capitol because it would limit Capitol's 
eventual ability to network with other PCP systems. (CAP- 
01 at p. 10).
18. Notwithstanding Congressional intervention on 
RAM's behalf, Capitol was granted its initial PCP license 
for base station facilities on 152.48 MHz at Charleston, 
West Virginia and Huntington. West Virginia, Call Sign 
WNSX646, on September 12, 1990., (CAP-15 at p. 1). 
Thereafter, RAM filed a written complaint with the Com 
mission in November 1990, alleging that Capitol was 
retransmitting pages from 152.51 MHz (Capitol's wide area 
RCC paging frequency) on the frequency 152.48 MHz, and 
that such transmissions were causing harmful interference 
to RAM's operations. (CAP-01 at p. 10; CAP-11 at p. 2). 
According to RAM, the alleged retransmissions caused an 
almost perfect "stereo effect" when RAM personnel si 
multaneously monitored the frequencies 152.51 MHz and 
152.48 MHz. (Moyer Tr. 75; Capehart Tr. 284; Bobbitt Tr. 
466-46S).8 Upon receipt of RAM's complaint, Capitol pre 
pared and submitted a declaration by J. Michael Raymond, 
Vice President and Chief Operating Officer, under penalty 
of perjury, categorically denying RAM's allegations. (CAP- 
11 at pp. 2-3).
19. In fact, Capitol had not even started operating its 
PCP system by that time and it did not cause the alleged 
"retransmissions". (CAP-01 at p. 22; Raymond Tr. 813-814, 
1013, 1303-1304). In this connection, in response to a PRB 
inquiry, Capitol had previously reported that Station 
WNSX-646 was placed into operation the latter part of 
March 1991. (PRB Ex. 11. p 1). No evidence has been 
offered rebutting this assertion. The "stereo effect" phe 
nomenon which ostensibly caused RAM to complain to the 
Commission probably was an instance of intermodulation, 
of which Capitol had no knowledge and would not have 
discovered upon inspection after RAM's complaint. (Peters 
Tr. 1095-1099).9
20. RAM next filed a complaint of interference at the 
Commission against Capitol on March 5, 1991. claiming 
that Capitol's station identification on 152.48 MHz was
5 NABER is the FCC recognized frequency coordinator for 
private carrier paging systems. (CAP-18 at p. 1).
RAM owns an interexchange carrier providing private line 
circuits serving Kentucky, Ohio and West Virginia. Capitol was 
a customer of RAM's private line circuits. In January 1990, 
while Capitol's PCP's application was being coordinated at 
NABER, RAM terminated Capitol's use of its private line cir 
cuits. As a result of RAM's strong- armed tactic, Capitol suf 
fered a financial hardship by having to use a long distance 
carrier at additional cost. (Tr. 536-538; 812-813). 
7 In response to allegations of interference contained in a com 
plaint filed with PRB in March 1991. Capitol submitted a 
declaration from CSi President, Calvin R. Basham. Basham 
detailed RAM's history of causing harmful interference to CSl's 
operation. Basham asserted that as a result of RAM's interfer 
ence, CSI lost all of its customers on 152.48 MHz. (CAP-12, p. 
7). Inexplicably, the record indicates that PRB never investi 
gated Basham's allegations before instituting the instant revoca 
tion proceeding against Capitol.
8 Other than the field inspection conducted during the week 
of August 12, 1991 by James G. Walker and Donald W. Bogert 
of the Baltimore Field Office, PRB's case rests solely on the 
testimony of RAM's principals and employees. No evidence 
from a disinterested witness corroborating RAM's charges has 
been offered.
9 Walker disagreed with Peters' opinion to a certain extent, 
evidently because in Walker's experience intermodulation has 
been accompanied with audio degradation that would be dis 
cernible at least to a trained technician. (Walker Tr. 1483-1484). 
Peters testified that in his experience there have been instances 
of intermodulation where the audio is "almost perfectly pure". 
(Peters Tr. 1204-1205). Walker agreed, however, that there evi 
dently were problems with intermodulation on 152.48 MHz at 
other times (Walker Tr. 1484), which supports Peters' opinion 
that this incident likely was caused by intermodulation as well. 
In any event, the record does not support RAM's claim that 
Capitol was responsible for the alleged "retransmissions".
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FCC 94D-12 Federal Communications Commission Record 9 FCC Red No. 23
interfering with RAM's paging transmissions. (CAP-01 at 
pp. 10-11; CAP-12 at p. 3). This time A. Dale Capehart, 
currently RAM's Corporate Vice President (Capehart Tr. 
277), had called Raymond on March 4, 1991. to complain 
about Capitol's station ID transmissions prior to filing the 
written complaint at the Commission., (CAP-12 at p. 3).
21. At that time Capitol was in the process of installing 
and testing its PCP system, and was getting ready to initiate 
commercial service. (CAP-01 at p. 11). Its system consisted 
of a base station transmitter at Capitol's Nease Drive site in 
Charleston, and at Capitol's site in Huntington. (Id.). 
Capitol's paging terminal was connected to the PCP base 
station at Nease Drive by dedicated telephone line, and a 
UHF control link located at Nease Drive was used to 
simulcast the Charleston and Huntington transmitters. 
(Id.).
22. A Relm transceiver was modified to function as a 
fixed tuned receiver monitoring 152.48 MHz and "inhibit 
ing" Capitol's PCP transmitter from operating whenever a 
co-channel signal was detected by the receiver. (CAP-01 at 
p. 11; CAP-21). This "inhibitor" was in place and function 
ing in Capitol's PCP system throughout Capitol's opera 
tion, both in the initial constructing and testing stages and 
after commercial operation started. (CAP-01 at p. 11; Ray 
mond Tr. 1341; CAP-21). Accordingly, Raymond believed 
that the purpose of Capehart's call on March 4, 1991 was 
to try to "set Capitol up" rather than solve a legitimate 
interference problem. (CAP-01 at p. 12).
23. Nonetheless, Raymond attempted to be cooperative 
with Capehart to resolve the alleged problem, and the 
upshot of their telephone conversation on March 4th was 
that Raymond agreed to try to get a technician out to 
investigate the problem that day. (CAP-12 at pp. 3-4). 
Raymond was unable to do so, but the alleged interference 
stopped later that same day anyway. (CAP-12 at p. 4; 
Capehart Tr. 281). That tended to confirm in Raymond's 
mind that Capehart's call was not a bona fide complaint 
about interference by Capitol. (CAP-12 at p. 4).
24. During this same period of time, Capehart admitted 
in telephone conversations with Raymond that RAM had 
completely disabled its own "inhibitor" on 152.48 MHz, so 
that it could blot out any "interference" from other trans 
mitters. (CAP-01 at p. 12; CAP-12 at p. 5; Raymond Tr. 
1014, 1302-1303, 1345-1346). As a result, when Capitol 
attempted to start its commercial PCP service on March 12, 
1991, RAM repeatedly initiated paging transmissions on its 
system while a paging transmission by Capitol was in 
progress. (CAP-12 at pp. 5-6). That is, RAM would "walk" 
on Capitol's PCP pages. (Id.). 10
25. Another issue of concern to Capitol at the time was 
that RAM would transmit on 152.48 MHz for long periods 
of time, sometimes up to 15 or 20 minutes in a row. before 
relinquishing the channel to co-channel users. (CAP-01 at 
pp. 14-15; CAP-12 at p. 5). Capitol had been advised by 
NABER that FCC rules required PCP licensees to shut 
down their system after three minutes to allow other li 
censees to use the channel, and it was obvious to Capitol 
that RAM was not doing so. (CAP-01 at pp. 14-15). Capitol 
considered this another form of interference to its oper 
ations by RAM, because it prevented Capitol from trans 
mitting its pages. (CAP-01 at pp. 14-15; CAP-12 at p. 5)."
26. On April 2, 1991, the Private Radio Bureau held a 
meeting at its offices in Washington, D.C. with counsel for 
Capitol, counsel for RAM, principals of RAM and a repre 
sentative from the Office of Congressman Perkins. (HDO 
at H 4 & n.8 ). At that meeting the staff bluntly told RAM 
and Capitol to cut out their fighting and obey the rules, or 
all of their licenses would be revoked by the FCC. (CAP-01 
at p. 14). Raymond states that Capitol did not interpret this 
threat as being directed solely against it. According to 
Raymond, Capitol did not believe it was doing anything 
wrong and it was sincerely trying to comply with its 
obligations for sharing the channel and the rules governing 
PCP operations. Raymond felt that the only thing needed 
for RAM and Capitol to "get along" was for RAM to use 
its inhibitor and to shut down after 3 minutes to let 
Capitol transmit. Raymond states in this regard, that RAM 
would tie up the PCP channel for long periods of time, 
sometimes 15 or 20 minutes in a row, before releasing the 
channel and allowing Capitol to transmit. (Id.). RAM does 
not dispute that it ties up the PCP channel for long period 
of time. In fact, according to Raymond Bobbitt, senior Vice 
President of networking services for RAM, during the 
busiest parts of the day, RAM transmits 50 or more min 
utes per hour for a stretch of 4 or 5 hours (Bobbitt Tr. 
493, 528-529).
27. An outgrowth of this meeting, however, was a letter 
from the Chief, Land Mobile an Microwave Division, to 
Capitol advising that RAM was not bound by the "three- 
minute" rule because its system was not "interconnected" 
within the meaning of the rules. (CAP-14 at pp. 1, 2). The 
Commission's data base reflected at the time, however, that 
RAM was fully authorized for interconnected (FB6C) oper 
ations. (CAP-20 at pp. 2, 13-15).
28. During this period of time. Raymond also called 
Walker at the Commission's Field Operations Bureau in 
Baltimore from time to time to complain about RAM 
transmitting on top of Capitol's pages and holding the 
channel for long periods of time. (CAP-01 at p. 15). n 
Capehart also was making similar calls on RAM's behalf 
complaining about interference by Capitol. (Walker Tr 
109, 150-151).
29. In late March 1991, during this sequence of com 
plaints, RAM's employees came to the conclusion that the 
reason Capitol would transmit over RAM's pages was there 
was some sort of technical "problem in the receiver of 
[Capitol's) busy monitor". (CAP-20 at pp. 5, 7). RAM's 
conclusion in this regard evidently was never contempora 
neously communicated to Capitol. 13
30. Instances of interference are common in the radio 
business, but rarely are deliberate; and Walker did not 
believe the allegations of deliberate interference by either
10 As noted, supra, CSI also complained of similar tactics by 
RAM, resulting in the loss of all his customers. (CAP-12 at pp. 
7-8).
11 CSI made similar complaints (CAP-12, pp. 7-8).
12 Raymond sent Walker a copy of a videotape which Ray 
mond claimed showed RAM's interfering transmissions, which 
Walker refused to look at. Raymond asserted he sent the tape to 
Walker and RAM in the hope of demonstrating that Capitol was
operating properly and RAM was the real problem. (CAP-01 at 
p. 15).
3 The letter from Capehart to Walker does not show that a 
copy was sent to Capitol (CAP-20 at p. h): and Capehart could 
not recall whether he sent a copy to Capitol. (Capehart Tr. 
229-230). Raymond recalls "some conversations" with RAM per 
sonnel around March 1991 concerning interference complaints, 
without any indication that RAM had apprised Capitol of
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9 FCC Red No. 23 Federal Communications Commission Record FCC 94D-12
Capitol or RAM. (Walker Tr. 151-152). Walker generally 
refused to get involved in the dispute between RAM and 
Capitol. (CAP-01 at p. 15).
31. In light of the staffs admonitions at the April 2 
meeting and the lack of response by the staff to Capitol's 
concerns, Capitol eventually stopped registering its com 
plaints, notwithstanding that RAM did not alter its con 
duct. (CAP-01 at pp. 14-15).
32. In addition to the interference by RAM's 
transmissions, Capitol also experienced continuing tech 
nical difficulty with its system which affected the reliability 
of its service from the beginning of its operation in March 
1991 until at least July 1992. (CAP-01 at pp. 16-18; CAP-15 
at pp. 2-6). This technical difficulty related to interfering 
transmissions on Capitol's UHF "link" frequency from 
sources other than RAM, and to the reliability of the 
transmission path for the radio link frequency between the 
Charleston base station and the Huntington base station. 
(Id.).
33. Because of these technical difficulties, RAM's inter 
fering transmissions, and its continuous use of the channel 
for long periods of time without relinquishing it for co- 
channel users, Capitol experienced considerable turnover 
of customers that tried the PCP service and found it 
unsatisfactory. (CAP-01 at pp. 16-18; Raymond Tr. 1416-21; 
Harrison Tr. 711-712, 742-744). For these same reasons 
Capitol had only a small handful of customers on its PCP 
system in August 1991. (Raymond Tr. 1380, 1417-1418).
34. On July 19, 1991, RAM again complained orally to 
the Commission that Capitol was maliciously interfering 
with RAM's PCP system, claiming that Capitol had a "de 
vice that is patched in to its paging base station that 
imitates the sound of a tone page transmission". (CAP-19). 
RAM further claimed that this "device used by Capitol is 
paging station testing equipment" which "is capable of 
being removed in less than one minute". (Id.). However, 
Capitol was not served with a copy of any such complaint, 
nor was it made aware of any such complaint by RAM at 
the time. (CAP-01 at p. 18).
35. Capitol asserts it never had and never used such a 
device. (Raymond Tr,. 810). No evidence has been offered 
by PRB showing Capitol used such a device. Nonetheless, 
as a result of this complaint, the Private Radio Bureau 
immediately requested the Field Operations Bureau to con 
duct an inspection of Capitol for the purpose of finding 
grounds to revoke Capitol s licenses. (CAP-19; Walker Tr. 
1477).
36. In response to the Private Radio Bureau's request, 
James Walker and Donald Bogert, engineers employed at 
the FCC Baltimore Field Office, made a field trip to the 
Charleston/Huntington area to conduct monitoring of 
152.48 MHz and inspections of Capitol's and RAM's PCP
stations during the period August 12-15, 1991. (Walker Tr. 
114, 1477-1479). On Monday, August 12, 1991 the inspec 
tors monitored 152.48 MHz and kept logs a "good portion 
of the day;" on Tuesday morning, August 13 logs were also 
kept, but not in the afternoon;14 on Wednesday, August 14, 
they monitored while driving to Ashland to inspect RAM's 
station;15 and on Thursday, August 15, they monitored in 
the morning before arriving in Charleston to inspect 
Capitol's PCP station. (Walker Tr. 133; PRB-03 at pp. 1-2).
37. When they monitored 152.48 MHz they heard pre 
dominantly digital transmissions which they identified as 
transmissions by RAM, and fewer tone paging transmis 
sions which they identified as transmissions by Capitol. 
(Walker Tr. 112. A third transmitter on 152.48 MHz was 
also monitored, which the inspectors identified as 
WNLM930. (PRB-03 at p. 2).
38. When the inspectors monitored 152.48 MHz, the 
tone transmissions identified as Capitol transmissions ap 
peared to be identical sequences of tones -- a set of two 
sequential tones repeated once, followed by a second and 
third set of sequential tones. (PRB-03 at p. 2). The inspec 
tors also observed morse code station identifications by 
Capitol at the rate of approximately seven words per 
minute. (PRB-03 at p. 2). This speed translates into about 
15 seconds of air time per identification. (Walker Tr. 183).
39. According to the inspectors, the tone sequences iden 
tified as Capitol transmissions were transmitted approxi 
mately once a minute when the channel was available, but, 
when it was busy, the tones were held until air time was 
available on the channel. (PRB-03 at p. 2; Walker Tr. 
112-113, 136, 145; Bogert Tr. 254). These transmission 
were legitimate test transmissions by Capitol. (CAP-22; 
Harrison Tr. 732-735; Raymond Tr. 1311-1322, 1418-1421). 
Walker Tr. 180. 16 Also Peters, who is an expert on paging, 
testified that the amount of testing by Capitol was not 
excessive (Peters Tr, 1125, 1130. 1142-1143, 1179-1182). 
The Bureau offered no expert of its own with like exper 
ience to rebut Peters' testimony.
40. During their monitoring the inspectors observed in 
stances of RAM initiating transmissions before Capitol 
ceased transmitting (i.e., instances of RAM "walking" on 
Capitol's transmissions), as well as instances of Capitol 
"walking" on RAM's transmissions. (PRB-03 at p. 1). The 
inspectors observed that RAM "walked" on Capitol's trans 
missions more than vice versa (Walker Tr. 157); in fact, 
their logs show that such instances were caused 90 percent 
of the time by RAM and only 10 percent of the time by 
Capitol. (CAP-23 at p. 11).
41. The reason for RAM "walking" on Capitol's trans 
missions was discovered during inspection of RAM's PCP 
station; RAM hadinstalled a device on its frequency moni 
tor to delay RAM's paging transmissions for only a maxi-
RAM's conclusions in this regard. (CAP-01 at p. 12). The infer 
ence is compelling, therefore, that RAM in fact communicated 
its conclusions regarding Capitol's busy monitor only to the 
Commission and not to anyone at Capitol.
14 In response to Capitol's interrogatories, Walker stated that 
monitoring on the channel was conducted from 11:40 a.m. to 
4:30 p.m. on August 12 and from 10:49 a.m. to 11:45 a.m. on 
August 13., (Walker Tr. 153-154).
15 On August 14, the field inspectors were also on unrelated 
assignments. (Walker Tr,. 154).
16 Among other things, Capitol tested the "link frequency" and 
for "coverage". Capitol also tested to get the "group call" and
"chaining" features to work to provide service to the Greenup 
County Rescue Squad located near Ashland, Kentucky on the 
Kentucky-West Virginia border. CAP-22; Harrison Tr. 733; Ray 
mond Tr. 1332-1333. In this connection, the HDO stated that 
information before the Commission suggests that the Rescue 
Squad "never sought any relationship with Capitol for the 
provision of paging services in connection with its public safety 
function" (par. 17) and that Capitol made misrepresentations in 
stating otherwise (par. 19) However, at the hearing, the Bureau 
did not offer any evidence in support of the assertions in the 
HDO. Incredibly, the Bureau did not call anyone from the 
Greenup County Rescue Squad to testify on its behalf.
6375
FCC 94D-12 Federal Communications Commission Record 9 FCC Red No. 23
mum of two minutes whether or not anyone else was using 
the channel. (PRB-03 at p. 2; Bogert Tr. 259). n The de 
cision to install such a device was made by Robert Moyer, 
the owner of RAM, and he knew when he installed it that 
doing so was unlawful. (Capehart Tr. 357-358).
42. By contrast, the inspectors never were able to deter 
mine why Capitol occasionally "walked" on RAM's trans 
missions. (Walker Tr. 167, 173; Bogert Tr. 259). The 
explanation probably is that transient factors such as local 
traffic, signal fades and the like, prevented Capitol's moni 
tor from detecting RAM's signal in particular situations. 
(CAP-23 at p. 11; Bogert Tr. 259-260). Walker does not 
believe that Capitol knowingly transmitted while RAM was 
already on the air. (Walker Tr. 172).
43. The inspectors inspected Capitol's facilities on Thurs 
day, August 15, 1991. (PRB-03 at p. 3). During the inspec 
tion Bogert had a telephone discussion about the switch 
settings on the terminal card, relating to the speed of the 
morse code identification, directly with a representative of 
the manufacturer of the card. (CAP-01 at p. 19; Bogert Tr. 
257, 271-272).
44. At the end of this conversation Bogert made a state 
ment to Raymond to the effect that the switch settings must 
be the right ones. (CAP-01 at p. 19; Bogert Tr. 273; Walker 
Tr. 1451-1452). Raymond believed on the basis of this 
exchange that the inspectors had been satisfied, and did not 
pursue the matter further at the time. (CAP-01 at p. 19). 18
45. At no time during the inspection did the inspectors 
communicate to Capitol that they had observed Capitol 
interfering with RAM. (CAP-01 at p. 20). When they left at 
the end of the inspection, Capitol assumed that it had 
passed the inspection and that it did not need to take any 
further action. (Id.).
46. In the course of the inspection. Walker inquired of 
William D. Stone, Capitol's president and owner, whether 
he had any subscribers. (Tr. 1450). According to Walker. 
Stone replied that Marshall University was one of his larg 
est. (Tr. 1450). Walker does not remember how he phrased 
his question to Stone nor did he know whether Stone 
understood him to be referring by his inquiry only to PCP 
paging customers rather than paging customers in general 
(Walker Tr. 164-165). 19 In the course of that same inspec 
tion, Capitol employees were asked by Walker on August 
15 to provide a list of the current subscribers. The list, 
which was given to Walker on August 15-16 is contained 
in Bureau Ex. 5. (Walker Tr. 174-175). The information on 
page 1 of PRB Ex. 5 was prepared by Harrison's secretary 
in the Huntington office (Harrison Tr. 726-727).20 The 
information on pages 2 and 3 were prepared by someone at 
Capitol's corporate headquarters in Charleston. Walker 
doesn't recall who in the Charleston office he asked for the 
information or who furnished the data to him. (Walker Tr. 
174-177; Tr 1451). The list supplied does not include Mar 
shall University as a PCP customers. (PRB Ex 5). Neither 
Harrison's secretary or the preparer of the list at the 
Charleston office was called as a witness.21
47. On May 19, 1992, the Bureau sent a Section 308(b) 
inquiry as a result of the field inspection in August 1991. 
(PRB-10). The inquiry requested information, inter alia, as 
to Capitol's first ten customers following the date the sta 
tion was placed in operation, the names of subscribers 
during the August 12-15, 1991 period and current users. 
(Id. at pp. 1-2). Capitol responded to the Bureau's inquiry 
on June 17. 1992 (PRB-11). In responding to the staff 
request to reconstruct its subscriber base for different 
points in time, some long after the fact, Capitol personnel 
searched several filing cabinets for extant PCP service 
agreements. (Raymond Tr. 1370-1371). Capitol only sup 
plied the names of past subscribers which they could vali 
date with a service agreement. Capitol's search for 
information about past subscribers was hampered by the 
fact that there had been a substantial turnover of customers 
in the preceding months and, as a matter of policy, Capitol 
does not retain sales agreements after a customer cancels. 
(Raymond Tr. 1368-1369). No evidence has been adduced 
which disputes Raymond's assertion that Capitol provided 
the most accurate information it could furnish and that 
Capitol did not intend to mislead the Commission concern 
ing its PCP customers. (Raymond Tr. 1380, 1392; CAP-1, 
pp. 24-27).
48. On July 30. 1992, the Bureau issued a Notice of 
Apparent Liability for Forfeiture (NALF) alleging "willful 
and repeated ... malicious[] interference)" by Capitol to 
RAM and other "egregious misconduct." (PRB-12 at pp. 
1-2). The Bureau alleged that forfeitures totalling $42,000 
were warranted for malicious interference in violation of 
Section 333 of the Communications Act; "forfeitures total 
ling $6,000 were warranted for failure to take reasonable 
steps to avoid harmful interference, in violation of Section 
90.403(e) of the Commission's rules; and forfeitures were 
warranted totalling $3.000 each for violation of Sections 
90.405(a)(3) and 90.425(b)(2) of the rules (excessive testing 
and morse code identification slower than the prescribed 
rate of 20-25 words per minute, respectively). PRB-12 at p. 
3). The Bureau then reduced the calculated total forfeiture 
from $54,000 to $20,000 so that the NALF could be issued 
under delegated authority. (Id.).
49. Simultaneously with the NALF issued to Capitol, the 
Bureau issued a warning letter to RAM that use of the 
two-minute time-out device on its system was improper. 
(CAP-25). However, no forfeiture of any kind was sought 
by the Bureau. (Id.).
50. After the NALF was issued by the Bureau, RAM 
personnel started monitoring the PCP channel 152.48 MHz 
and Capitol's wide area RCC channel 152.51 with a pair of 
Hark Verifiers. (Blatt Tr. 373-376). The Hark Verifier is an 
electronic device with a radio receiver that can be tuned to 
a particuar paging frequency, and a decoder that deciphers 
information contained in a paging signal. (Blatt Tr. 
373-374). When connected to a printer, the decoded output 
from the Verifier can be reproduced on paper. (Id.; PRB- 
16; PRB-17).
This device will sometimes hereinafter be referred to as a 
"two-minute time-out" device.
18 The inspectors dispute that Raymond should have been left 
with that impression, despite Bogert's statement about the fac 
tory settings. It is not necessary to resolve this conflict in the 
testimony, however, because the inspectors corroborate Ray 
mond's testimony that the reason for the slow speed was 
Capitol's good faith reliance on the correctness of the factory
settings for the dip switches (CAP-01 at p. 24), and not some 
plot to interfere with RAM by deliberately slowing down the 
identification transmissions.
19 Stone did not testify in the proceeding.
20 Harrison first saw the list at the hearing (Harrison Tr. 727).
21 The Bureau made no effort to ascertain the persons respon 
sible for the list. (Tr. 1384).
6376
9 FCC Red No. 23 Federal Communications Commission Record FCC 94D-12
51. Monitoring of the paging channels is said to have 
ocurred in late August 1992 and in October 1992. (PRB- 
09; Blatt Tr. 376). However, the only actual data from the 
monitoring that was introduced into the record was for 
October 28, 1992 (PRB-16; PRB-17). The monitoring by 
RAM personnel determined that some digital pages trans 
mitted on 152.48 MHz were duplicates of pages that pre 
viously had been transmitted by Capitol on its wide area 
RCC paging system on 152.51 MHz. (Blatt Tr. 376-377). 
The delay between the duplicate transmissions varied, but 
ranged from approximately 30 seconds to 4 or 5 minutes. 
(Blatt Tr. 413).
52. These pages were deemed by RAM personnel to 
occupy channel time unnecessarily, and thus to unneces 
sarily delay transmission of RAM's pages. (Bobbitt Tr. 608). 
However, they were held until channel time was available 
and did not "walk" on RAM's transmissions. (Id.). RAM 
accused Capitol of causing the duplicate transmissions be 
fore the Bureau but never advised Capitol of its complaint. 
(CAP-01 at p. 21; PRB-09: Capehart Tr. 324, 362; Stipula 
tion Tr. 632-634).
53. Capitol has denied causing the duplicate transmis 
sions. (Raymond Tr. 814-815). Peters, an expert on paging 
and intimately familiar with Capitol's operation as its long 
standing consultant, is also of the view that Capitol was not 
responsible. (Peters T. 1252-1254). Peters points out that 
RAM never verified that Capitol's transmitter was the 
source of the "dummy" pages on 152.48 MHz. (Peters T. 
1096, 1116-1117, 1253-1254).22
54. On July 27, 1993 the Commission issued its agenda 
for the August 3, 1993 meeting which stated that it would 
consider adoption of a hearing designation order and order 
to show cause against Capitol. (CAP-01 at p. 21). The 
Commission then issued a press release on August 3, 1993 
outlining the action it had decided to take at the request of 
the Private Radio Bureau; and the text of the order itself 
was issued on August 31, 1993. (Id. ). Capitol obtained a 
copy of the text of the order on September 2, 1993, and 
discontinued operation of its PCP station that same day on 
advice of counsel. (Id.).
CONCLUSIONS
55. The HDO requires a determination whether Capitol 
willfully violated the Commission's Rules and whether 
Capitol misrepresented facts and lacked candor in its deal 
ings with the Commission. PRB has the burden of proceed 
ing and proof on all the designated issues. PRB has failed 
to satisfy its burden. The evidentiary record convincingly 
establishes that Capitol has not "willfully" or "repeatedly" 
 violated the Commission's Rules, that it has not intention 
ally deceived the Commission, and that it has been candid 
and forthcoming in its dealing with the Commission. It is 
therefore concluded that there is no justification for 
revoking any of Capitol's licenses or for imposing a for 
feiture.
PRB Failed To Show A Credible Motive For Capitol's 
Alleged Scheme
56. Capitol, an FCC licensee for thirty years with an 
unblemished record, sought entry into the PCP business. 
Capitol's motive in establishing a "budget" paying service 
was to be able to offer service to customers that otherwise 
would not subscribe to Capitol's RCC service   either 
because they could not afford or would not choose to pay 
the price. When Capitol decided to enter the PCP business, 
it was charging approximately $30.00 per month per unit 
for its RCC transmission service and equipment, while 
RAM was charging somewhere on the order of $6.00 per 
month for its PCP business. (E.g., Raymond Tr, 871). PRB 
advances the theory that Capitol engaged in its PCP busi 
ness merely to cause interference to RAM. PRB asserts that 
RAM and Capitol "compet[e| for the same group of cus 
tomers," and that Capitol's motive for the alleged scheme 
to interfere "was to disrupt RAM's business in the hopes of 
attracting customers to the competing RCC service." (PRB 
Findings at 1-2).
57. The Bureau's conclusion, premised solely on specula 
tion, is flatly belied by the evidence in this case. While it is 
true that RAM and Capitol were both competitors in the 
general sense, it is not true that Capitol's RCC service and 
RAM's PCP service effectively competed "for the same 
group of customers", as speculated by the Bureau. In fact, 
the different pricing strategies adopted by RAM and 
Capitol resulted in somewhat different niches of the paging 
market. Thus, it would have been entirely pointless for 
Capitol to have engaged in such a scheme as alleged by 
PRB. Assuming arguendo that Capitol's actions would have 
had the effect of driving any of RAM's customers off its 
system, the fact remains that any such customers would not 
have then become customers of Capitol's RCC system due 
to its price.
58. PRB's theory does not make any sense for other 
reasons as well. Capitol has been in the paging business 
and an FCC licensee for 30 years. Surely, competition is 
not new to it. Why should RAM's appearance on the scene 
suddenly cause Capitol to assume such a new and bizarrely 
different character? Moreover, the alleged scheme occurred 
in the midst of unprecedented growth and success of 
Capitol's RCC paging business, by far the biggest part of its 
business. Why would Capitol jeopardize its successful busi 
ness by attempting to cause interference to a company that 
was not in fact causing Capitol any measurable competitive 
harm? PRB offers no explanation.
59. Finally, even assuming arguendo that Capitol would 
have sought to engage in such a scheme as PRB alleges, it 
is totally implausible that Capitol would have engaged in 
the particular conduct in this case. As Bobbitt, one of 
RAM's employees admitted, interference that is actually 
harmful or destructive in paging is the simultaneous trans 
mission (i.e.. "walking" on another licensee's transmis 
sions); minor delays in transmissions are not significant. 
Yet. in this case the most serious allegations against Capitol 
center around transmissions that occurred during otherwise 
unoccupied channel time. Significantly, when RAM or oth-
22 Raymond and Peters have expounded possible causes for the 
retransmissions. According to Raymond, a saboteur would have 
been able to cause the retransmissions without Capitol's knowl 
edge, by tapping into its system with a computer terminal via a 
dial-up phone line which Capitol maintained for other pur 
poses. (Raymond Tr. 814-818; 989-1010). Peters is of the view.
however, that the evidence submitted by the RAM-affiliated 
witnesses points to another transmitter entirely, a "pirate" 
transmitter that was connected to a Hark Verifier and a per 
sonal computer programmed with relatively simple instructions. 
(Peters T. 1091, 1115-1119).
6377
FCC 94D-12 Federal Communications Commission Record 9 FCC Red No. 23
er licensees were transmitting, the alleged "interference" by 
Capitol was held until channel time became available., In 
this connection, PRB has failed to cite a single case where 
transmissions during unoccupied channel time have been 
held to constitute "harmful interference." PRB's reliance 
on Henry C. Armstrong, HI, 92 FCC 2d 485 (Rev. Bd. 1983) 
and Gary W. Ken, 91 FCC 2d 107 (Rev., Bd 1982) is 
misplaced on their facts. These cases hold, contrary to 
PRB's assertions, that findings of harmful interference for 
purposes of FCC rule violations have been confined 
historically to instances of intentional and repeated "jam 
ming" or "walking" on transmissions of other licensees. 
That is not the situation in this case.
60. In short, PRB has failed to suggest a credible motive 
for the scheme it alleges, much less demonstrate such 
motive by evidence., On the other hand, RAM's motives 
for attempting to run Capitol and other competitors off the 
PCP channel are self evident. RAM has a very successful 
PCP business and it is determined not to share the channel 
with other competitors, notwithstanding that it is required 
by law to do so. As noted by Peters, operators with a large 
number of subscribers will do whatever they can to protect 
their business interests.
61. Consistent with its anti competitive objectives, RAM 
embarked on a calculated course of conduct to prevent 
Capitol from ever getting a license in the first instance, or 
to drive it off the frequency if ever licensed. RAM's cam 
paign started with the allegation before NABER that 152.48 
MHz was too busy with RAM's transmissions to license 
Capitol on the frequency. At the same time, RAM em 
ployed the coercive tactic of terminating Capitol's use of its 
private license circuits to Capitol's financial detriment. 
When this strategy failed to produce the desired result, 
RAM launched a paper war at the Commission accusing 
Capitol of applying for its proposed PCP license for the 
purpose of causing harmful interference to RAM's oper 
ations. This type of allegation by RAM was not unique to 
Capitol. RAM made similar allegations to NABER about 
the intentions of another competitor, CSI, when CSI 
complained to NABER that RAM's operations on 152.48 
MHz were violating Commission rules.23 Even after PRB 
rejected RAM's various protests as erroneous, unfounded 
and unsupported. RAM did not cease its efforts to drive 
out its potential competition so that it could continue to 
monopolize the "shared" channel.
62. After PRB rejected RAM's protest, RAM enlisted the 
aid of a Congressman who repeatedly intervened with the 
Commission on RAM's behalf. Notwithstanding such inter 
vention, Capitol received its PCP license. Undaunted, RAM 
proceeded to bombard the Commission with complaints 
that Capitol was causing interference to its operation which 
ultimately proved successful in removing Capitol from the 
channel. Capitol, in defense, complained to PRB that RAM 
was "walking" on Capitol's pages and that RAM was trans 
mitting for long periods of time before relinquishing the 
channel, which RAM has not denied. Notwithstanding that 
RAM's charges were uncorroborated, PRB has accepted 
RAM's versions of the facts without question. On the other 
hand, Capitol's complaints about RAM's conduct, which 
are corroborated by CSI (see CAP-12, p. 7), have consis 
tently received a deaf ear. In this connection, the marching
order to the field inspectors recites: "If you can establish 
malicious interference, he [Dick Shiben] wishes to follow 
up with revocation of all Capitol's licenses and/or the 
imposition of a substantial forfeiture." (CAP-19). No men 
tion is made of Capitol's complaints about RAM's action, 
which is indicative of the uneven treatment accorded to 
RAM's and Caitol's complaints.
Record Reflects RAM's Unwillingness To Cooperate With 
Capitol In Sharing Channel
63. With respect to the sharing of PCP channels, the 
Commission has made clear that "licensees must cooperate 
in their use", that "both parties must be cooperative and 
flexible in arriving at a mutually satisfactory channel shar 
ing arrangement," and that the "first licensee on the chan 
nel has no greater right than subsequent licensees with 
regard to satisfactory sharing of the channel." Nu-Page of 
Winder, 6 FCC Red 7565 at 7566 (1991). The record re 
flects on the basis of Capitol's dealings with other competi 
tors and the statements of Raymond that Capitol would 
have been reasonably cooperative in attempting to establish 
a channel sharing arrangement. (See Blatt Tr,. 439-444, 
451; Raymond Tr. 975-976). The uncontradicted evidence 
of record evinces no such inclination on the part of RAM. 
Contrary to the holding in Nu-Page, RAM's actions estab 
lish that it was not interested in cooperating with Capitol 
in the use of the channel. Rather, it was determined not to 
share the channel with Capitol notwithstanding that it was 
required by law to do so. As pointed out by Peters, channel 
sharing reduces the amount of channel-time available to 
the sharing entities. In light of RAM's large number of 
subscribers, it is clearly in RAM's economic interest to 
have the channel all to itself, rather than to share the 
channel with a competitor such as Capitol.
64. The record shows only one attempt by RAM at 
cooperation, and that was when RAM suggested tying its 
and Capitol's terminal together with a dedicated wireline. 
(CAP-13). That suggestion was by no means a panacea for 
the interference alleged by RAM and Capitol was amply 
justified on technical, economic and operational grounds 
in declining RAM's suggestion (CAP-23 at pp. 12-13: Peters 
Tr. 1226-1230).
65. At all other times when RAM claimed to suffer an 
interference problem, the record demonstrates that RAM 
chose to complain to PRB, rather than cooperate with 
Capitol to resolve their differences. The evidence is persua 
sive that RAM's complaints of interference were actually 
products of a predetermined campaign to drive Capitol 
from its licensed PCP channel. Thus, in November 1990, 
RAM concluded that an intermodulation problem on 
152.48 MHz was deliberate interference by Capitol and 
immediately filed a written complaint with the Commis 
sion. RAM did so without contacting Capitol to try to find 
out what was going on. In fact, Capitol had not even 
started operating its PCP system at that time and could not 
have been at fault. In March 1991, Capehart, RAM's Cor 
porate Vice President, contacted Capitol to complain of 
alleged interference from Capitol's morse code station iden 
tification. Raymond agreed to get a technician out to inves 
tigate and fix the alleged problem; and in fact the problem
23 RAM claims that Capitol is the only party with which RAM 
has ever had any trouble sharing the channel (RAM Findings at 
 92). RAM has conveniently forgotten about CSI's complaints,
ignored by PRB, that RAM was operating in violation of the 
Rules.
6378
9 FCC Red No. 23 Federal Communications Commission Record FCC 94D-12
stopped later that evening even though Raymond had been 
unable to dispatch the technician by that time. Nonethe 
less, the next day RAM filed another complaint of written 
interference at the Commission, challenging the bona fides 
of Capitol's actions. Further, after March 1991, when 
Capitol first initiated commercial operation, RAM never 
bothered to contact Capitol when RAM allegedly exper 
ienced interference problems. Instead, RAM continued to 
file complaints with the Commission attacking Capitol's 
actions and its bona fides. In fact. RAM even failed to 
advise Capitol when RAM's personnel independently con 
cluded that the problem RAM had been experiencing was 
due to a technical problem with Capitol's "inhibitor" re 
ceiver.
PRB Failed To Establish That Capitol Violated The Rules Or 
Misrepresented Facts And/Or Lacked Candor
66. Turning to the designated issues in this case, apart 
from the field investigation in August 1991, PRB's case 
rests entirely on the testimony offered by Moyers, 
Capehart, Blatt and Bobbitt, all RAM principals and em 
ployees. Their testimony, which is not corroborated by a 
single non-RAM affiliated witness, is entitled to no weight. 
As discussed, supra, the evidence overwhelmingly estab 
lishes that from the very outset of Capitol's application for 
a PCP license, RAM embarked on a calculated course of 
conduct to prevent Capitol from getting a license in the 
first instance, or to drive it off the frequency if ever li 
censed. All of the above named RAM affiliated witnesses 
played a role in this anti-competitive campaign. The cam 
paign to keep Capitol off the channel did not end at the 
pre-hearing stage. The Presiding Judge had an opportunity 
to observe the testimony of these RAM affiliated witnesses 
and finds their testimony evasive, not forthcoming and 
prone to exaggeration, if not outright fabrication, concern- f 
ing alleged interference caused by Capitol to RAM. RAM's / 
obvious bias renders their testimony inherently unreliable' 
and lacking of credibility.
67. HDO Issue (a) inquires whether, "during the month 
of October 1990, from November 15, 1990 through No 
vember 18, 1990, on March 4, 1991, on March 19, 1991, 
and/or from July 17, 1991 through July 19, 1991," Capitol 
caused harmful interference to RAM in violation of Sec 
tion 90.403(e) of the rules and/or Section 333 of the Com 
munications Act. (HDO at 1J28 .a). Section 90.403(e) 
requires Capitol to "take reasonable precautions to avoid 
causing harmful interference ... including] monitoring the 
transmitting frequency for communications in progress and 
such other measures as may be necessary to minimize the 
potential for causing harmful interference."
68. In turn, "harmful interference" is defined for this 
purpose in relevant part as "any emission, radiation, or 
induction which specifically degrades, obstructs, or inter 
rupts [a| service provided by [RAM's PCP] station)|." 47 
C.F.R. 90.7. Additionally. Section 333 of the Communica 
tions Act prohibits any person from "willfully or mali 
ciously interfering] with or caus[ing| interference to any 
radio communications of any station licensed or authorized 
by or under this Act". 47 U.S.C. 333.
69. The evidence fails to establish any violation by 
Capitol of Section 90.403(e) of the rules or Section 333 of 
the Communications Act, much less any violation during 
the period specified in HDO Issue No. 1. Capitol was not
operating its PCP station during 1990 and could not have 
caused any such interference in October or November of 
1990.
70. Moreover, there is no evidence of any kind of inter 
ference to RAM during October 1990, and the evidence of 
the "stereo effect" phenomenon during November 1990 is 
too general in any event to fairly establish that such phe 
nomenon occurred on the specific dates of November 15, 
1990 through November 18, 1990. More importantly, of 
course, the evidence also establishes that the "stereo effect" 
phenomenon was actually an incidence of intermodulation 
for which Capitol was not at fault, not an instance of 
interference by Capitol to RAM.
71. The only evidence proffered specifically in regard to 
March 4, 1991 was the testimony of Capehart, whose testi 
mony is entitled to no weight. Moreover, even if the testi 
mony is credited, it does not establish a violation of either 
Section 90.403(e) of the rules or Section 333 of the Com 
munications Act.
72. The evidence is undisputed that Capitol had an air 
monitor or "inhibitor" in place and functioning on March 
4, 1991, which is a standard industry practice for 
complying with the monitoring requirements prescribed by 
Section 90.403(e) of the rules. The alleged interference on 
March 4th stopped before Capitol was able to get a techni 
cian out to investigate, which raises a strong suspicion 
whether the complaint was bona fide to begin with. Thus. 
Capitol understandably was not able to determine that it 
was causing any interference to RAM when it did investi 
gate the complaint.
73. Under these circumstances, there is no basis in the 
record for concluding that Capitol knowingly engaged in 
one or more acts on March 4. 1991 that caused harmful 
interference to RAM's PCP service. Similarly, there is no 
basis for concluding that Capitol failed in any respect in 
complying with the requirement to monitor before trans 
mitting on 152.48 MHz on that date, or to otherwise take 
reasonable steps to avoid causing harmful interference to 
RAM.
74. The only evidence relating to March 19. 1991 is the 
letter from Capehart to Raymond, Exhibit CAP-13. That 
exhibit does not necessarily establish the truth of the mat 
ters asserted therein, except to the extent it may constitute 
an admission by RAM.
  . 75. In any event, the most it shows, under any conceiv 
able interpretation or analysis, is that both Capitol and 
RAM had their "inhibitors" in place and functioning on 
that day, but that both paging systems nonetheless would 
sometimes attempt to seize the channel for transmissions 
simultaneously. Thus, the letter itself expressly refutes any 
findings that Capitol failed to monitor as required by Sec 
tion 90.403(e), or that it willfully transmitted while RAM 
transmissions were in progress.
76. Finally, even assuming the testimony offered by the 
RAM witnesses concerning July 1991 were credited, it is 
also entirely too general and conclusory to support any 
finding of violations by Capitol during the period July 17, 
1991 through July 19. 1991.
77. HDO Issue (b) inquires as to the same substantive 
violations as HDO Issue a, but changes the relevant time to 
the period during which the Commission inspectors con 
ducted their field visit. (HDO at H28.b). There are two 
substantive matters to be considered under HDO Issue b: 
(1) Capitol's repeated tone transmissions for testing pur 
poses, and (2) the occasional instances where Capitol
6379
FCC 94D-12 Federal Communications Commission Record 9 FCC Red No. 23
"walked" on RAM's transmissions. Both of these transmis 
sions were testified to by Commission inspectors Walker 
and Bogert after monitoring 152.48 MHz during the period 
August 12-15, 1991.
78. Addressing them in reverse order, the instances 
where Capitol "walked" on "RAM's transmissions do not 
constitute "willful" or "malicious" interference by Capitol, 
nor do they constitute a failure to comply with Section 
90.403(e) of the rules. There is no dispute that Capitol's 
"inhibitor" was in place and functioning during this period 
of time, and that most of the time Capitol's transmissions 
were in fact held until channel time was available.24 The 
inspectors admitted in their testimony that they were never 
able to determine the reason for Capitol "walking" on 
RAM's transmissions, nor could they identify any malfunc 
tion in Capitol's equipment. (Walker Tr. 197).
79. Peters, a paging expert, opined that the cause of these 
incidents likely was transient factors affecting reception in 
particular instances. (CAP-23 at p. 11). This is consistent 
with Bogert's impression that he may have observed some 
noise in the inhibitor's receiver during the inspection. 
(Bogert Tr. 259-260). Raymond's testimony also is 
uncontradicted that during their inspection, Walker and 
Bogert did not advise Capitol that some of its transmissions 
were causing interference to RAM. (See CAP-01 at p. 23).
80. The HDO affirms that to establish grounds for a 
forfeiture, the evidence must show that "the licensee knew 
that he was doing the acts in question". (HDO at Ull ). 
Similarly, as shown by its express language, the gist of a 
violation of Section 333 of the Communications Act is a 
deliberate act with actual intent to cause interference to a 
licensee's transmissions.
81. This view is underscored by the legislative history of 
the section, which makes clear that the underlying purpose 
of the statute is to prohibit actions that are expressly de 
signed to cause interference, such as "intentional jamming" 
and "deliberate transmission on top of the transmissions of 
authorized operators" in order to "obstruct their commu 
nications." See H.R. Rept. No., 316, 101st Cong., 2d Sess. 
8, reprinted in 1990 U.S. CODE CONG. & ADM. NEWS 
1294, 1301.
82. Under these circumstances, the evidence clearly es 
tablishes that the instances of Capitol "walking" on RAM 
transmission during August 12-15, 1991, were not "willful" 
or "malicious" acts of interference, nor were they the 
result of any failure by Capitol to take "reasonable precau 
tions ... including] monitoring the transmitting frequency 
for communications in progress".25 Accordingly, no viola 
tion of Section 333 of the Act or 90.403(e) of the rules 
occurred by reason of such transmissions. The same con 
clusion is reached with respect to the tone transmissions by 
Capitol. The uncontradicted evidence establishes that the 
tone transmissions were bona fide test transmissions.
83. Walker, who does not claim to be an expert on 
paging (Walker Tr. 150), opined that the testing was exces 
sive, but did not challenge Capitol's evidence that they 
were good faith test transmissions. On the other hand, 
Peters, who is an expert on paging, is of the view that the 
testing was not excessive. (Peters Tr. 1125, 1130, 1142-1143; 
1179-1182). In the absence of rebuttal evidence challenging 
Peters' opinion, Peters viewpoint is accepted.
84. The issue of whether or not Capitol's testing was 
excessive is relevant to HDO Issue (b) only if "excessive" 
testing per se also constitutes "harmful interference" within 
the meaning of the definition in Section 90.7 of the rules. 
In turn, any excessive testing by Capitol could constitute 
"harmful interference" only if it can be said to "specifically 
degrade [or] obstruct[|" the paging service provided b 
RAM.
85. The evidence does not support any such findings in 
this case. Peters testified that Capitol's test transmissions 
neither "degraded" nor "obstructed" RAM's service as 
those terms are commonly understood. (Peters Tr. 
1100-1103). Even assuming arguendo that Capitol's testing 
could be said to be "excessive" as an abstract proposition, 
the most that could be said is that such tests might have 
delayed RAM's transmissions momentarily; but there is no 
evidence whatsoever that they caused any measurable "dis 
ruption of RAM's service.
86. PRB's assertion that "excessive" testing is a form of 
harmful interference, for purposes of Rule 90.403(e) and 
Section 333 of the Communications Act, violations even 
where such testing occurred during unoccupied channel 
time is wholly without support. As discussed, supra, Arm 
strong and Ken, cited by PRB, hold that findings of harm 
ful interference have been confined historically to instances 
of intentional and repeated "jamming" or "walking" on 
transmissions of other licensees. PRB has not cited a single 
case supporting its theory, which is rejected.
87. Further, as pointed out by Capitol in its findings, 
similar and even more extensive delays can result from 
many causes wholly internal to a PCP system, including 
the number of subscribers on a channel and the mix of 
paging units on a channel. (Bobbin Tr. 521-525). Thus, it 
would be practicably impossible for the Commission to 
fairly attribute particular delays to the fact that "testing" 
was deemed to be "excessive." rather than, say, the fact that 
the affected licensee itself had an "excessive" number of 
voice pagers in service that resulted in even a greater delay 
of paging transmissions.26
88. Moreover, the concept of "excessive" testing is spe 
cifically dealt with in a separate rule section, namely Sec 
tion 90.405(a)(3). Thus, there is simply no need to strain 
the outer limits of Section 90.403(e) of the rules or Section 
333 of the Act by attempting to import notions of excessive 
testing into the concept of "harmful interference" other 
wise proscribed by those provisions., If "excessive testing"
24 What they thought at the time was a defect in the inhibi 
tor's design (PRB-03 at p. 5 & #3) was actually a mistake by 
the inspectors. (See CAP-21).
25 As reflected in the findings (par. 40) RAM "walked" on 
Capitol's transmissions (90% of the time); Capitol on RAM's 
transmissions (10% of the time). Also, unlike in the case of 
Capitol, RAM's "walking" on Capitol's transmissions was clearly 
deliberate since RAM employed a "two-minute time-out" de 
vice. See Finding 41. Notwithstanding, no sanction of any kind 
has been imposed on RAM.
26 Raymond noted in his testimony that it was strange that 
RAM had so many voice pagers on its new paging service, when 
the trend in the industry was to avoid voice paging as much as 
possible in favor of more air-efficient types. (Raymond Tr. 936). 
Peters also testified to the incentives that incumbent licensees 
have in a shared channel situation to use up as much channel 
time as they can. (Peters Tr. 1106. 1112). RAM's incentives to 
load up on voice pagers thus was to try to limit or prevent 
sharing of the channel with others.
6380
9 FCC Red No. 23 Federal Communications Commission Record FCC 94D-12
is a violation of Commission rules, it should be dealt with 
as a direct violation of Section 90.405(a)(3) rather than 
indirectly as a form of "harmful interference".
89. Finally, in this regard, the evidence in this case does 
not support any finding that the tone testing by Capitol 
during August 12-15, 1991 "degrade[d)" or "obstructed]" 
RAM's service so as to constitute "harmful interference" to 
that service. Walker testified that when the inspectors 
monitored 152.48 MHz it was busy "75 percent of the 
time". (Walker Tr. 155). This necessarily included both 
RAM's and Capitol's transmissions, and the transmissions 
observed from WNLM930 as well. Thus, 25 percent of the 
time the channel still was not in use by anyone during the 
period the inspectors monitored, even with Capitol's test 
transmissions. Accordingly, RAM had ample opportunity 
to transmit its pages on a timely basis during this period.
90. This conclusion is underscored by the admissions of 
Bobbitt, a RAM affiliated witness. He specifically distin 
guished in his testimony between a situation where two 
minutes worth of pages were lost due to simultaneous 
co-channel transmissions (i.e., situations where pages are 
"walked" on by a co-channel user) and the situation where 
pages were delayed from being transmitted for two minutes 
due to waiting for the channel to become available. 
(Bobbitt Tr. 494). Bobbitt testified that the former situation 
would be "significant" but admitted that the wait for air 
time in the latter situation "is not excessive". (Id.).
91. Under these circumstances, even if it is assumed, 
arguendo, that "excessive testing" could be a form of 
"harmful interference" within the meaning of Section 
90.403(e) of the rule or Section 333 of the Communica 
tions Act, the evidence in this case establishes that the 
testing engaged in by Capitol during the period August 
12-15, 1991 does not come close to rising to such level. 
Therefore, again, no violation of those provisions by 
Capitol occurred by reason of its testing transmissions dur 
ing the period August 12-15, 1991.
92. Issue (c) inquires whether "from November 15, 1990 
through November 18, 1990, on March 4, 1991, and/or 
from July 17, 1991 through July 19, 1991," Capitol trans 
mitted "communications for testing purposes" that "were 
not kept to a minimum and every measure was not taken 
to avoid harmful interference," in violation of Section 
90.405(a)(3) of the Commission's rules. (HDO at H28.c). 
The evidence of record wholly fails to establish that any 
such violations occurred.
93. In relevant part, Section 90.405(a)(3) of the rules 
provides:
(a) Stations licensed under this part may transmit 
only the following types of communication: *****
(b) Communications for testing purposes required for 
proper station and system maintenance. However, 
each licensee shall keep such tests to a minimum and 
shall employ every measure to avoid harmful inter 
ference.
94. Section 90.405(a)(3) thus establishes two independent 
duties which may be violated: (1) communications for 
testing purposes must be kept "to a minimum." and (2) in 
conducting such tests the licensee must "employ every 
measure to avoid harmful interference". The evidence does 
not show that Capitol violated either duty in this case, 
particularly with respect to the period of time covered by 
HDO Issue (c). In this regard, PRB has conceded that 
"[N]o evidence was adduced concerning issue (c), which 
must be resolved in Capitol's favor." (PRB Findings, page 
56).
95. HDO Issue (d) inquires as to the same rule violation 
as Issue (c), but again changes the relevant period to the 
time the Commission inspectors conducted their field visit. 
(HDO at 1128 .d). Again, the evidence fails to establish a 
violation by Capitol and, hence, this issue similarly must 
be resolved in Capitol's favor.
96. It is undisputed that, with the exceptions discussed 
above in paragraphs 78-79, Capitol's inhibitor was func 
tioning properly during this period of time and held the 
test pages until channel time was available. (E.g., Walker 
Tr. 112; Bogert Tr. 254). There is thus no substantive issue 
as to whether Capitol employed every measure to avoid 
harmful interference within the meaning of the second 
duty prescribed by Section 90.405(a)(3).
97. The only matter meriting any discussion under this 
issue is whether Capitol kept its tests "to a minimum," i.e., 
whether it engaged in "excessive" testing. On this issue the 
probative evidence is conflicting, as noted above in para 
graph 83. Walker, who does not claim to be an expert on 
paging, opined that the testing was excessive; while Peters, 
who is an expert on paging, opined that it was not exces 
sive. The opinion of Peters warrants greater weight due to 
his expertise in the paging industry. In this connection, as 
noted, supra, PRB did not call an expert to rebut Peters.27 
Additionally, the issue must be resolved in Capitol's favor 
even without resolving the conflict in the testimony of 
Walker and Peters. The Private Radio Bureau has the 
burden of proof with respect to HDO Issue (d) (HDO at 
1130 ). The most that can be fairly said is that the evidence 
on this issue is equally divided and the Bureau thus failed 
to carry its burden of proof.28 29 Therefore, whether the 
conflict in testimony is resolved or not, HDO Issue (d) 
must be resolved in favor of Capitol.
27 Peters did not speak to the issue of the time the automatic 
testing program was inadvertently left on all night by Capitol. 
(See, e.g., CAP-22 at p. 4). However, the uncontradicted evi 
dence is that this incident was neither "willful" nor "repeated". 
In this connection, there is no factual basis for PRB's claim that 
the tone transmissions occurred "around the clock without 
being turned off" while the inspectors were in Charleston. (See 
PRB Conclusions, p. 36). Thus, imposition of a forfeiture for 
this incident is not warranted.
28 Even if the evidence proffered by Walker is sufficient to 
establish a violation of Section 405(a)(3) of the rules, only a 
warning to Capitol, and not a forfeiture, would be warranted. 
The Private Radio Bureau deemed it sufficient to only issue a
warning to RAM for installing the two-minute time-out device, 
notwithstanding that installing such a device was a serious 
violation of the rules. (See CAP-25). Here, by contrast, the most 
that could be said is that Capitol made a good faith error of 
judgment in the amount of testing it did. Even-handed treat 
ment of the two parties requires that no forfeiture should be 
imposed on Capitol.
29 PRB argues in its Reply that even if RAM's witnesses are 
disregarded entirely, "the interference observed by FCC en 
gineers warrants the revocation of all Capitol's licenses and 
imposition of a forfeiture..." (par. 7). The Bureau's position can 
not be reconciled with the light sanction imposed in Texidor 
Security Equipment, Inc., 4 FCC Red 8694 (1989) involving far
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FCC 94D-12 Federal Communications Commission Record 9 FCC Red No. 23
98. HDO Issue (e) inquires whether from August 12 
through August 15. 1991, Capitol "willfully and/or repeat 
edly" caused its PCP station to identify its transmissions in 
morse code at a rate less than the 20-25 words per minute 
prescribed by Section 90.425(b)(2) of the rules. (HDO at 
f28.e). While Capitol did identify its station in morse code 
at a rate less than the prescribed 20-25 words per minute, 
PRB failed to prove it did so "willfully" during this period 
of time. Therefore, this issue likewise will be resolved in 
favor of Capitol.
99. Although it is undisputed that Capitol was identifying 
its station at the rate of approximately seven words per 
minute rather than the prescribed 20-25 words per minute 
during August 12-15, L991, it likewise is undisputed that 
this was due to an erroneous setting of the terminal card at 
the factory and a mislabeling of the settings on the card by 
the manufacturer. (CAP-01 at p. 19; Bogert Tr. 257, 
271-273). The first time Capitol was alerted to the existence 
of a possible problem was during the inspection of 
Capitol's facilities on August 15, 1991, the last day of the 
period specified in HDO Issue e. Therefore, there is no 
evidence whatsoever that Capitol "willfully" transmitted its 
identification too slowly on August 12, 13, and 14, 1991. as 
inquired by the HDO.
100. No such finding may be made with respect to 
August 15, 1991 as well. Even after the problem was 
brought up at the inspection, the evidence is unclear as to 
how the matter was left after Bogert talked to the manufac 
turer. The inspectors may have felt that they made it clear 
that there was still a problem notwithstanding the exchange 
with the manufacturer, but Raymond believed the inspec 
tors had been satisfied and thus did not pursue the issue 
further at that time. (CAP-01 at p. 19). It is not necessary 
to resolve this conflict because the inspectors corroborate 
Raymond's testimony that the reason for the slow speed 
was Capitol's good faith reliance on the correctness of the 
factory settings for the dip switches and not some plot to 
interfere with RAM by deliberately slowing down the iden 
tification transmissions. Under these circumstances, again, 
there is no warrant for finding that Capitol "willfully" 
identified its PCP station too slowly, even on August 15, 1991.30
101. HDO Issue (f) inquires whether "from November 
15, 1990 through November 18, 1990" Capitol transmitted 
on 152.48 MHz "for purposes other than completing pri 
vate carrier pages" or to transmit "common carrier paging 
traffic," in violation of Sections 90.173(b), 90.403(c) or 
90.415(b) of the rules. (HDO at 1|28.f). No extended discus 
sion is required in order to resolve this issue in favor of 
Capitol. As pointed out repeatedly above, the evidence 
conclusively establishes that Capitol was not operating on 
152.48 MHz in November 1990 for any purpose. Thus, it 
could not have done so in violation of the specified rules.
102. Similarly to Issue (f), HDO Issue (g) inquires 
whether "on or about August 27, 1992 and continuing to 
the present" Capitol transmitted on 152.48 MHz "for pur 
poses other than completing private carrier pages" or to
transmit "common carrier paging traffic," in violation of 
Sections 90.173(b), 90.403(c) or 90.415(b) of the rules. 
(HDO at H28.g). This issue is also resolved in favor of 
Capitol.
103. The evidence on this issue centered around Blatt's 
use of two Hark Verifiers to simultaneously monitor the 
frequencies 152.51 MHz (Capitol's wide area common car 
rier paging frequency) and 152.48 MHz. Monitoring is said 
to have occurred beginning in late August 1992 and at 
other times later that fall. However, the only actual data 
from the monitoring that was introduced into the record 
was for October 28, 1992. (PRB-16; PRB-17).
104. On the basis of this monitoring the RAM-affiliated 
witnesses claimed that Capitol was selectively 
retransmitting on 152.48 MHz some common carrier pages 
from 152.51 MHz. The HDO alleges, in turn, that such 
retransmissions violate various of the Commission's rules, 
including Sections 90.173(b), 90.403(c) and 90.415(b).
105. It is unnecessary to analyze those rule requirements 
in detail, because the evidence persuasively establishes that 
Capitol did not engage in the conduct charged. Capitol has 
denied causing the duplication transmissions (Raymond Tr. 
814-815). The Presiding Judge finds such testimony credi 
ble. In fact, having had an opportunity to observe Capitol's 
witnesses including Raymond, the Presiding Judge finds 
their testimony overall to be forthcoming and entirely be 
lievable. Peters is also of the view that Capitol was not 
responsible.
106. Wholly apart from the fact that testimony of the 
RAM-affiliated witnesses will not be credited, a fatal flaw in 
RAM's investigatory methodology is that they never com 
petently identified a Capitol transmitter as the source of 
the "dummy" pages on 152.48 MHz. (Peters Tr. 1096, 
1116-1117, 1253-1254).
107. It is also entirely implausible that Capitol would 
have engaged in the conduct alleged by the RAM-affiliated 
witnesses. By the time this type of retransmission started, 
Capitol had just been hit with a $20,000 NALF alleging 
"egregious misconduct" for "malicious[| interfere)nee]" to 
RAM. (PRB-12). Capitol has been an FCC licensee for 30 
years; it has "a very healthy respect for the FCC, if not an 
outright fear; " and it knew it was being closely watched by 
RAM. (CAP-01 at pp. 1-2; Peters Tr. 1116; Raymond Tr. 
1019-20).
108. Furthermore, the nature of the transmissions them 
selves belie any inference that Capitol was at their root. 
They did not occur while RAM was transmitting, i.e., they 
did not "walk" on RAM's pages. Instead, they were held 
until air time was available. Moreover, to the extent PRB- 
16 is fairly representative of the character of the transmis 
sions, they were all digital pages and never had more than 
half a dozen or so pages batched together in the same 
transmission. Thus, the "dummy" transmissions were never 
more than a few seconds long before relinquishing the 
channel -- a period of time that Bobbitt admitted would 
not have a significant adverse impact on RAM's service.
more serious violations. In Texidor, a licensee operating in the 
Business Radio Service on a secondary non-interference basis 
caused harmful interference to co-channel users in violation of 
Sections 90.403(e)(f) and (g). In addition, he did not reply to the 
Notice of Violation issued by the EIC and ignored repeated calls 
made by field personnel after the issuance of the Notice. Not 
withstanding Texidor's willful violation of the Rules, Texidor
was issued a forfeiture in the amount of $1,000. Here, in addi 
tion to revocation of all of Capitol's licenses, PRB seeks a 
forfeiture of $95,000.
30 The issue speaks to violations on particular dates. Any 
alleged violations on dates other than those specified in the 
HDO are, therefore, irrelevant.
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9 FCC Red No. 23 Federal Communications Commission Record FCC 94D-12
109. Even assuming arguendo that Capitol desired to 
disrupt the operations of its competitor RAM (which it did 
not), it is absolutely impossible to believe that it would 
have elected to do so by engaging in this type of 
retransmission. The retransmissions were so subtle and so 
limited that they were totally ineffective as any form of 
competitive disruption to RAM. Accordingly, it is simply 
impossible to believe that Capitol could have been the 
cause of them. For all of these reasons, HDO issue (g) is 
resolved in favor of Capitol.
110. The final substantive issue is the HDO inquiry as to 
whether, in its dealings with the Commission, Capitol mis 
represented facts to the Commission or was lacking in 
candor. Again, the evidence overwhelming requires resolu 
tion of this issue in favor of Capitol.31
111. Insofar as misrepresentation are concerned, the 
HDO identifies two matters in which misrepresentations 
allegedly may have occurred: (1) representations about the 
existence and number of Capitol's PCP paging subscribers, 
and (2) representations about the Greenup County Rescue 
Squad. With respect to the Greenup County Rescue Squad, 
Capitol's testimony affirming the existence and nature of 
that relationship is uncontradicted. (CAP-01 at pp. 27-28; 
CAP-22). As noted, supra, PRB called no witnesses to rebut 
Capitol's testimony.
112. With respect to Capitol's PCP paging subscribers, 
the most that the evidence shows is that there may have 
been some minor inconsistency in the precise identification 
of Capitol's PCP subscribers at the various times and places 
in responding to the Commission's different questions. 
(CAP-01 at pp. 24-27). If so, the record reflects they were 
simply honest mistakes resulting from the difficulty in 
determining precise answers from Capitol's records. (Id.). 
In fact, the thrust of Capitol's response in each case was 
that its PCP station was attempting to serve subscribers, but 
that it had no more than a relative handful at the times 
inquired about by the Commission, due to the various 
difficulties it had been experiencing. Such response was 
truthful and could not have misled the Commission in any 
respect.32 Accordingly, in the absence of evidence of inten 
tional deception, there is no basis for finding any misrepre 
sentation by Capitol in this proceeding.
113. There is similarly no basis for finding lack of 
candor. Again, the Bureau did not introduce any evidence 
of lack of candor in this case, and f 20 of the HDO is the 
only source for including the issue in the proceeding! As 
discussed above, the evidence is overwhelming that 
Capitol's PCP operations were bona fide at all times, in 
cluding the times it was engaged in testing, and that the 
representations Capitol made to the Commission in re 
sponse to RAM's complaints were entirely truthful and 
accurate. Therefore, there is no basis for finding lack of 
candor by Capitol with respect to any of these matters.
114. The allegations in the HDO relating to Capitol's 
"inhibitor" in fact turn out to have been the result of 
investigatory error by the Commission's inspectors. Simi 
larly mistaken are the allegations in the HDO concerning 
Capitol's computerized record capability. It appears tht 
PRB erroneously concluded that Exhibit PRB-05, pp. 2-3, 
was the product of a routine report generated by Capitol's 
business computer. In fact, the record establishes that it 
was manually compiled and produced on a word processor 
or typewriter. (Raymond Tr. 983). Again, this very serious 
allegation of misconduct, like the others in this case, turns 
out to have no basis in fact.
115. In sum, the evidence adduced at the hearing conclu 
sively establishes that Capitol's application for and opera 
tion of its PCP station was in all respects a bona fide 
business venture. Capitol has not "willfully" or "repeat 
edly" violated the Commission's rules governing PCP oper 
ations and has at all time dealt honestly and forthrightly 
with the Commission. It is therefore concluded that there 
is no justification for revoking any of Capitol's licenses or 
for imposing a forfeiture.33
Accordingly, IT IS ORDERED, that the "Order To 
Show Cause" and "Order Of Forfeiture" ARE VACATED 
and this proceeding IS TERMINATED.34
FEDERAL COMMUNICATIONS COMMISSION
Joseph Chachkin 
Administrative Law Judge
31 HDO Issues (i) through (m) are derivative issues which 
depend upon the resolution of the preceding issues. Since all of 
the preceding issues are resolved in Capitol's favor, as shown 
above, there is no need to separately discuss Issues (1) through 
(m) herein.
32 The Commission has repeatedly affirmed that the core of 
misrepresentation and lack of candor is "deceit". E.g., Character 
Qualifications, supra, 102 FCC 2d at 1196. Whether Capitol had 
two or five customers at any given time, or whether a customer 
were REMC or Pioneer Home Improvement, is wholly irrele 
vant to the issues in this case and could not possibly have had 
any adverse impact on the Commission's exercise of its statu 
tory responsibilities. There is thus no reason to equate a mis 
take in compiling Capitol's customer lists with a 
"misrepresentation" to the Commission.
33 While the evidence clears Capitol of charges of misconduct 
the same cannot be said of RAM. The record reflects that RAM 
has been guilty of "egregious" misconduct in pursuing its anti 
competitive objective. RAM's PCP license was not set for hear 
ing and is, therefore, outside the jurisdiction of the Presiding 
Judge.
34 In the event exceptions are not filed within 30 days after the 
release of this Initial Decision, and the Commission does not 
review the case on its own motion, this Initial Decision shall 
become effective 50 days after its public release pursuant to 
Section 1.276(d).
6383