19620 Federal Register / Vol. 61, No. 86 / Thursday, May 2, 1996 / Notices

expeditiously resume broadcast

operations of KWHK(AM) consistent

with the Commission’s Rules.

2. To determine whether Great

American Broadcasting of Hutchinson,

Inc. has violated Sections 73.1740 and/

or 73.1750 of the Commissions Rules.

3. To determine, in light of the

evidence adduced pursuant to the

foregoing issues, whether Great

American Broadcasting of Hutchinson,

Inc. is qualified to be and remain the

licensee of Station KWHK(AM).

A copy of the complete Show Cause

Order and Hearing Designation Order in

this proceeding is available for

inspection and copying during normal

business hours in the dockets section of

the FCC Reference Center (Room 239),

1919 M Street, N.W., Washington, D.C.

The complete text may also be

purchased from the Commission’s

duplicating contractor, International

Transcription Service, 2100 M Street,

N.W., Suite 140, Washington, D.C.

20037 (telephone 202–857–3800).

Federal Communications Commission.

Stuart B. Bedell,

Assistant Chief, Audio Services Division,

Mass Media Bureau.

[FR Doc. 96–10850 Filed 5–1–96; 8:45 am]

BILLING CODE 6712–01–P

Public Safety Wireless Advisory

Committee; Subcommittee Meetings

AGENCIES: The National

Telecommunications and Information

Administration (NTIA), Larry Irving,

Assistant Secretary for Communications

and Information, and the Federal

Communications Commission (FCC),

Reed E. Hundt, Chairman.

ACTION: Notice of the Next Meetings of

the Spectrum Requirements,

Interoperability, Technology,

Operational Requirements and

Transition Subcommittees.

SUMMARY: In accordance with the

Federal Advisory Committee Act, Public

Law 92–463, as amended, this notice

advises interested persons of the next

meetings of the five Subcommittees of

the Public Safety Wireless Advisory

Committee. The NTIA and the FCC

established a Public Safety Wireless

Advisory Committee, Subcommittees,

and Steering Committee to prepare a

final report to advise the NTIA and the

FCC on operational, technical and

spectrum requirements of Federal, state

and local Public Safety entities through

the year 2010. All interested parties are

invited to attend and to participate in

the next round of meetings of the

Subcommittees.

DATES: May 29, 30, 31 (Wed.–Fri.).

ADDRESSES: Scott Air Force Base,

Illinois (near St. Louis, MO), Global

Reach Planning Center, Bldg. 1907,

Main Conference Room.

FOR FURTHER INFORMATION CONTACT:

For information regarding the

Subcommittees, contact:

Interoperability Subcommittee: James E.

Downes at 202–622–1582

Operational Requirements

Subcommittee: Paul H. Wieck at 515–

281–5261

Spectrum Requirements Subcommittee:

Richard N. Allen at 703–630–6617

Technology Subcommittee: Alfred

Mello at 401–738–2220

Transition Subcommittee: Ronnie Rand

at 904–322–2500 or 800–949–2726

ext. 600

For information regarding

accommodations and transportation,

contact: Deborah Behlin at 202–418–

0650 (phone), 202–418–2643 (fax), or

dbehlin@fcc.gov (email). You may also

contact Ms. Behlin for general

information concerning the Public

Safety Wireless Advisory Committee.

Information is also available from the

Internet at the Public Safety Wireless

Advisory Committee homepage (http://

pswac.ntia.doc.gov).

SUPPLEMENTARY INFORMATION: The five

Subcommittees of the Public Safety

Wireless Advisory Committee will hold

consecutive meetings over a three day

period, Wednesday through Friday, May

29, 30, and 31, 1996. The expected

arrangement of the meetings, which is

subject to change at the time of the

meetings, is as follows:

May 29: The Interoperability

Subcommittee and then the Spectrum

Requirements Subcommittee will meet

consecutively starting at 9:00 a.m.

May 30: The Technology Subcommittee

and then the Operational Requirements

Subcommittee will meet consecutively

starting at 9:00 a.m.

May 31: The Transition Subcommittee will

meet starting at 9:00 a.m.

Visitor passes will be required to gain

entrance to Scott AFB. These passes will

be mailed to the membership after the

April San Diego meetings. Additionally,

there will be an off-site registration

established at one of the host hotels in

the area and details will be made

available on the PSWAC Homepage as

soon as possible. For further

information contact Don Speights,

NTIA, directly at 202–482–1652 or by

email at wspeights@ntia.doc.gov.

The tentative agenda for each

subcommittee meeting is as follows:

1. Welcoming Remarks.

2. Approval of Agenda.

3. Administrative Matters.

4. Work Program/Organization of Work.

5. Meeting Schedule.

6. Agenda for Next Meeting.

7. Other Business.

8. Closing Remarks.

The tentative schedule and general

location of future meetings of the

Subcommittees of the Public Safety

Wireless Advisory Committee is as

follows: June 1996, in Washington, D.C.

The tentative schedule and general

location of the next full meeting of the

Public Safety Wireless Advisory

Committee is: June 1996, in

Washington, D.C.

The Co-Designated Federal Officials

of the Public Safety Wireless Advisory

Committee are William Donald

Speights, NTIA, and John J. Borkowski,

FCC. For public inspection, a file

designated WTB–1 is maintained in the

Private Wireless Division of the

Wireless Telecommunications Bureau,

Federal Communications Commission,

Room 8010, 2025 M Street, N.W.,

Washington, D.C. 20554.

Federal Communications Commission.

Robert H. McNamara,

Chief, Private Wireless Division, Wireless

Telecommunications Bureau.

[FR Doc. 96–10848 Filed 5–1–96; 8:45 am]

BILLING CODE 6712–01–M

[FCC 96–140]

Applications for A and B Block

Broadband PCS Licenses

AGENCY: Federal Communications

Commission.

ACTION: Determination or application for

review.

SUMMARY: The Commission released this

Memorandum Opinion and Order

(MO&O) to address an Application for

Review filed by the National

Association of Black Owned

Broadcasters, Percy E. Sutton, and the

National Association for the

Advancement of Colored People. This

MO&O denies the application. The

MO&O is necessary to answer the issues

addressed in the application. The

intended affect of this action is to

resolve the issues set forth in the

application.

EFFECTIVE DATE: July 1, 1996.

FOR FURTHER INFORMATION CONTACT: John

Greenspan, (202) 418–0620, Wireless

Telecommunications Bureau,

Commercial Wireless Division.

SUPPLEMENTARY INFORMATION: This is the

text of the MO&O, adopted March 28,

1996, released April 1, 1996. This order

is available for inspection and copying

during normal business hours at the

Commercial Wireless Division Legal
Federal Register / Vol. 61, No. 86 / Thursday, May 2, 1996 / Notices 19621

Branch, Room 7130, 2025 M Street,

N.W., Washington, D.C., and also may

be purchased from the Commission’s

copy contractor, International

Transcription Service, at (202) 857–

3800, 2100 M Street, N.W., Suite 140,

Washington, D.C. 20037.

Memorandum Opinion and Order

I. Introduction

1. The Commission has before it an

Application for Review filed on July 21,

1995 by the National Association of

Black Owned Broadcasters, Percy E.

Sutton, and the National Association for

the Advancement of Colored People

(collectively ‘‘Petitioners’’), and an

erratum filed by Petitioners on August

24, 1995, seeking review of an Order by

the Chief, Wireless Telecommunications

Bureau (the ‘‘Bureau’’) granting the

applications filed by the auction

winners of 99 broadband Personal

Communications Services (‘‘PCS’’)

licenses for the A and B block

frequencies. In a separate pleading,

Petitioners seek review of a Bureau

Order that declined to stay the licensing

of the A and B block winners until the

licensing of the ultimate winners of the

C block auction. See Deferral of

Licensing of MTA Commercial

Broadband PCS, Memorandum Opinion

and Order, DA 95–1410, 1995

WESTLAW 379480 (Wireless Telecom.

Bur. June 23, 1995). We address that by

a separate order adopted today; in this

Order, we deal exclusively with

Petitioners’ Application for Review of

the A and B Block Order.

II. Background

2. On May 12, 1995, Petitioners filed

a Petition to Deny the applications of

the eighteen winning bidders in the A

and B block auction. Petitioners alleged

that the Commission violated Section

309(j) of the Communications Act, 47

U.S.C. § 309(j), by failing to provide

adequate opportunities for minorities to

acquire PCS licenses in the A and B

blocks. Petitioners further alleged that

this failure to provide incentives has

allowed a few dominant carriers to

divide A and B block PCS licenses in an

unlawful territorial allocation in

violation of the antitrust laws.

Petitioners contended that the

distribution of licenses in the top

markets indicated a pattern of collusion

by these carriers to ‘‘dominate the

wireless telephone industry, both PCS

and cellular.’’

3. The Bureau dismissed the Petition

to Deny. First, the Bureau concluded

that Petitioners had failed to

demonstrate standing under Section

309(d)(1) of the Communications Act

and applicable Commission precedent.

Then, treating the petition as an

informal objection, the Bureau further

held that Petitioners had failed to show

that a grant of the A and B block

licenses would be inconsistent with the

public interest. It rejected Petitioners’

contention that the Commission had

failed to comply with 47 U.S.C. § 309(j)

and deemed that contention ‘‘a belated

attempt to revisit the Commission’s

auction rules for licensing of the A and

B blocks.’’ The Bureau also rejected

Petitioners’ argument that the major

bidders colluded to allocate territory

among themselves.

III. Contentions of the Parties

4. Petitioners present the same

contentions before the Commission that

were previously rejected by the Bureau.

They allege that the Commission has

failed to comply with its statutory

mandate to provide adequate

opportunities for minorities to bid for

PCS licenses. Petitioners also repeat

their allegation that the Commission

‘‘appears to have allowed the dominant

carriers to divide the PCS licenses in an

unlawful territorial allocation.’’

Petitioners further dispute the Bureau’s

conclusion that Petitioners’ lacked

standing to raise the issues presented in

its Petition to Deny.

5. In opposition, Western PCS

Corporation (‘‘Western’’) alleges that

Petitioners’ Application for Review is

procedurally defective because it does

not specify the factors that warrant

Commission review. Further,

Wirelessco, L.P. and Phillieco, L.P.

argue that Petitioners lacked standing.

Several parties asserted that Petitioner’s

petition claimed no acts of misconduct

by them and that the petition should,

therefore, not affect their license grant.

Pacific Telesis Mobile Services (‘‘Pacific

Telesis’’) accuses Petitioners of

improperly seeking reconsideration of

prior rulemaking proceedings. Pacific

Telesis also argues that the Commission

fully complied with its statutory

mandate by providing for the rapid

deployment of services without undue

administrative delay. Finally, several

parties contend that the Bureau properly

rejected Petitioners’ claims of collusion.

IV. Discussion

6. We agree with Western that

Petitioners’ Application for Review is

procedurally defective and must be

dismissed. Section 1.115(b)(2) of the

Commission’s rules, 47 CFR

§ 1.115(b)(2), requires Applications for

Review to: Specify with particularity,

from among the following, the factors

which warrant Commission

consideration of the questions

presented:

(i) The action taken pursuant to

delegated authority is in conflict with

statute, regulation, case precedent, or

established Commission policy.

(ii) The action involves a question of

law or policy which has not previously

been resolved by the Commission.

(iii) The action involves application of

precedent or policy which should be

overturned or revised.

(iv) An erroneous finding as to an

important or material question of fact.

(v) Prejudicial procedural error.

Petitioners’ pleading is defective

because it fails to ‘‘specify with

particularity’’ any of the above

subsections as grounds for granting its

Application for Review. See Chapman

S. Root Revocable Trust, 8 FCC Rcd

4223, 4224 (1993). (‘‘Chapman’’). The

Commission held in Chapman that a

party that fails to identify one of the

above factors in support of an

application for review will have its

application dismissed. Accordingly, we

are dismissing Petitioners’ Application

for Review because it does not comply

with 47 CFR § 1.115(b)(2). Although we

are dismissing Petitioners’ pleading, we

briefly will address the issues raised

therein.

7. The Bureau held that Petitioners

lacked standing to challenge the A and

B Block licensees on a blanket basis as

it seeks to do here. We agree. To

establish standing to file a petition to

deny, the petitioners must allege

sufficient facts to demonstrate that grant

of the subject application would cause

them to suffer a direct injury.

AmericaTel Corporation, 9 FCC Rcd

3993, 3995 (1994) (citing Sierra Club v.

Morton, 405 U.S. 727, 733 (1972)). The

premise of Petitioners’ standing

argument is that the award of licenses

to the A and B block applicants

threatens their interests (or those of

their members) as potential C block

licensees as well as the interests of the

public. We find, as did the Bureau, that

these allegations are too contingent and

speculative to support the required

finding of a direct injury causally linked

to the challenged action. First, there is

no certainty that Petitioners or any of

their members will in fact participate in

the C block auction or that they will win

licenses if they do. Both of these events

must occur for any injury to even be

possible. Second, we have previously

held that the mere fact that a petitioner

has applied to be a licensee in the same

service does not confer standing. See

Pittsburgh Partners, L.P., 10 FCC Rcd

2715 (1994), para. 4 (mere status as

applicant in one proceeding in the FM

broadcast service does not confer
19622 Federal Register / Vol. 61, No. 86 / Thursday, May 2, 1996 / Notices

standing as a party in interest in another

proceeding in the FM broadcast service

); WIBF Broadcasting, 17 FCC 2d 876,

877 (1969) (same).

8. In their Application for Review,

Petitioners rely on the holding in United

Church of Christ v. FCC, 359 F.2d 994,

1005 (D.C. Cir. 1966) (‘‘UCC’’). for the

proposition that they have standing as

representatives of the public interest. As

Pacific Telesis points out, in UCC there

were specific allegations by the party

filing the petition to deny that the

broadcast station in question was

ignoring the needs of a major segment

of the listening audience. In this case,

Petitioners make no allegations and no

party has submitted any evidence that

the A and B block licensees will fail to

provide adequate service to any segment

of the population. Petitioners’ major

complaint appears to be that they would

have preferred entities other than the

successful bidders to have received the

A and B block licenses. This is not

sufficient to support a petition to deny.

Petitioners fail to demonstrate how they

will be harmed, either as consumers or

potential bidders, by the granting of

licenses to the A and B block winners.

Accordingly, we conclude, as did the

Bureau, that Petitioners have not alleged

sufficient facts in this case to

demonstrate that it has standing to

challenge the A and B block licenses.

We agree with the Bureau that a

potential PCS bidder could allege facts

sufficient to establish standing to

challenge another PCS application by

showing that grant of that application

would cause them demonstrable injury.

See A & B Block Order at 5.

9. Petitioners repeat the argument

previously made to the Bureau that the

Commission failed to adopt specific

provisions in the A and B block auction,

which Petitioners contend is a violation

of Section 309(j) of the Act. Pacific

Telesis points out in opposition that

Petitioners fail to address the Bureau’s

holding that this argument constitutes

an untimely petition for reconsideration

of the Commission’s broadband PCS

auction rules rather than a valid basis

for a petition to deny. We agree. The

Bureau properly concluded that the

purpose of the petition to deny process

is to assess challenges to applicants’

qualifications to be Commission

licensees. Petitioners’ statutory

argument does not address licensee

qualifications, however, but challenges

the structure of the A and B block

auction itself. We agree with the Bureau

that Petitioners’ argument was not a

valid petition to deny, but was instead

a belated attempt to revisit the

Commission’s auction rules for

licensing of the A and B blocks. In the

Fifth Report and Order in Docket No.

93–253, 59 FR 37566 (July 22, 1994), the

Commission decided against making

special provisions for designated

entities on the A and B blocks. We

determined that this approach fully

complied with Section 309(j) and

affirmed this conclusion on

reconsideration more than ten months

before Petitioners filed their petition.

Petitioners’ attempt to challenge the

rules again through the petition to deny

process is therefore untimely and

procedurally improper.

10. Petitioners also reiterate their

allegation that the dominant carriers

have divided the PCS licenses in an

unlawful territorial allocation. We agree

with the Bureau that Petitioners have

failed to provide evidence supporting

this allegation or otherwise to

demonstrate that a grant of the A and B

block applications would be

inconsistent with the public interest.

Under Section 309(d)(1) of the

Communications Act, 47 U.S.C. § 309

(d)(1), parties filing a petition to deny

must make specific allegations of fact

sufficient to show that a grant of the

application would be prima facie

inconsistent with the public interest,

convenience, and necessity. Except

where official notice may be taken, such

allegations must be supported by

affidavits of persons with personal

knowledge of the facts alleged. Section

309(d)(2) states that if the pleadings and

affidavits fail to raise substantial and

material questions of fact and the

Commission concludes that grant of the

application would be in the public

interest, the Commission shall deny the

petition. 47 U.S.C. § 309(d)(2).

11. In support of their claim of

territorial allocation both before the

Bureau and now before the Commission,

Petitioners allege only that three

companies—AT&T Wireless PCS, PCS

Primeco, and WirelessCo—won 61% of

the A and B block licenses. Petitioners

suggest that this constitutes

‘‘circumstantial evidence’’ that is not

only enough to support a petition to

deny, but ‘‘a jury verdict finding a

conspiracy which violates antitrust

laws.’’ A petition to deny must ‘‘contain

specific allegations of fact sufficient to

show * * * that a grant of the

application would be prima facie

inconsistent with [the public interest].’’

Where the Commission finds that such

a showing has not been made, it may

refuse the petition to deny on the basis

of ‘‘a concise statement of the reasons

for denying the petition, which

statement shall dispose of all substantial

issues raised by the petition.’’ In this

instance, we find that petitioners’

allegation of territorial allocation does

not constitute a showing that the grant

to the A and B block winners was prima

facie inconsistent with the public

interest. We agree with the Bureau that

Petitioners have failed to raise a

substantial or material question of fact

based on these allegations. First,

Petitioners offer no grounds for denying

the applications of the fifteen auction

winners other than AT&T, PCS Primeco,

and WirelessCo. Second, with respect to

these latter three applicants, Petitioners

fail to provide any factual evidence of

collusion. Contrary to Petitioners’

contention that the Bureau improperly

required a ‘‘smoking gun,’’ we agree

with the Bureau’s conclusion that

Petitioners must provide a modicum of

a factual showing that collusion

occurred—particularly in an auction

that lasted over three months and

resulted in aggregate winning bids of

nearly $8 billion by 18 different parties.

Petitioners introduce no evidence

showing that AT&T, PCS Primeco,

WirelessCo, or any other A or B block

winner has violated any of the

Commission’s rules, including the

collusion rules or the rules regarding

aggregation of PCS spectrum. We also

agree with Western that the bidding

patterns were determined to a large

degree by the desire of individual

applicants to acquire national wireless

footprints and/or to acquire markets

complementing their existing

telecommunications holdings. We

therefore find Petitioners’ allegation of

collusion to be without merit.

V. Conclusion

12. For the reasons discussed above,

we are dismissing Petitioners’

Application for Review for failure to

comply with Section 1.115(b)(2) of our

rules. Although our action renders

further discussion unnecessary, we

agree with the Bureau’s disposition of

the issues Petitioners raised in their

original Petition to Deny.

V. Ordering Clause

13. Accordingly, it is ordered

pursuant to Section 4(i) of the

Communications Act of 1934, as

amended, 47 U.S.C. § 154(i), and

Section 1.115(b)(2) of the Commission’s

Rules, 47 CFR § 1.115(b)(2), that the

Application for Review filed by

Petitioners on July 21, 1995, is denied.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 96–10615 Filed 5–01–96; 8:45 am]

BILLING CODE 6712–01–P