********************************************************
                         NOTICE
********************************************************
This document was converted from
WordPerfect or Word to ASCII Text format.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
WordPerfect version or Adobe Acrobat version, if available.
*****************************************************************
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
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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. These four stations are currently licensed to various licensees, including
ComTech, Western Management Corporation: America West C&E, Inc. dba Page Me, and
Communication Technologies, Inc. dba Page Me.  On our own motion, we are considering in this Order
the renewal application for Station WPER274, and the modification applications for Stations WPAF615
and WPET577, as well as a cancellation request relating to Station WPEK890, filed on behalf of Page
Wyo, Inc.  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.  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.  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.  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.
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 Me's and Page Wyo's books and records.
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.
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,
corporate structure or control.  Ted S. Higgins of America West C&E dba Page Me signed those
applications.  Commission staff granted those applications on February 3, 1999.
4.On March 16, 1999, Western Management Corporation: America West C&E filed a renewal
application, seeking to renew the license for Station WPER274.  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.  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.  On the same date, Western Management Corporation also filed applications
to modify Stations WPAF615 and WPET577 to change the radio service from the private radio service
to the commercial radio service.  Also on that same date, Page Wyo, Inc. filed a request to cancel
Station WPEK890's license.  Stuart Powell signed that application.
5.On August 30, 1999, ComTech filed the Petition seeking the dismissal or denial of Western
Management Corporation's assignment application.  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. 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.  ComTech further alleges that Western
Management Corporation did not have the authority to file an assignment application relating to the four
   stations on July 26, 1999, without ComTech's approval.
6. Western Management Corporation filed an opposition to the Petition on September 29, 1999.
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 Corporation's consent.
7.ComTech filed a response to Western Management Corporation's Opposition on October 15,
1999, contending that it had acted properly in filing the two renewal applications.  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.
8. ComTech sought summary judgment in the Uinta County court case, but its Motion for
Summary Judgment was denied on August 17, 2000.  The court opinion stated that the case was very
complex and convoluted, with almost every issue of material fact in dispute.  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." The
opinion additionally noted that whether or not Ted Higgins was a member of a joint venture is also at
                            issue.
                       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
comprised of two partners:  Western Management Corporation and America West C&E dba Page Me. 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.  ComTech seeks the dismissal or
denial of Western Management Corporation's assignment application, alleging that it had purchased all
of the stock of America West, and thereby has beneficial ownership of America West's partnership
interest in the four licenses.  Western Management Corporation alleges that ComTech filed renewal
requests relating to two of the stations, Stations WNJN327 and WPAF615, without Western Management
                   Corporation's consent.
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.  Under Wyoming law, the existence of a joint venture, is preeminently a question
for the finder of fact.  It is the Commission's policy to defer to the determinations made by the
appropriate state courts in such situations.  The parties are actively litigating the ownership issue before
the Third Judicial District of the State of Wyoming.  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.  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.
              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 Commission's 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
                              D'wana R. Terry
                              Chief, Public Safety and Private Wireless Division
                         Wireless Telecommunications Bureau