W. Havens To FCC, in Support of FCC's 3 (Feb 2010) Letters of Investigation, To MCLM, DePriests & MariTEL Re AMTS Auction 61 Compliance, Truthfulness, Actual Affiliates and Revenues, Etc.

This is a copy of the below email and its attachments placed into Word and then PDF for
filing on ULS under MCLM FN 0002303355 (re Auction 61 AMTS) and related matters.
These are actually Letters of Investigation, and not Inquiry as described in places below.
Fw: Letters of Inquiry: EB to MCLM, Maritel, WPV- D. Brown

...
Fri, March 12, 2010 10:42:30 PM
From: Warren C. Havens warrenhavens@mac.com
To: gary.schonman@fcc.gov; brian.carter@fcc.gov
Cc: d brown d.c.brown@att.net; Scot Stone Scot.Stone@fcc.gov; jeff tobias

jeff.tobias@fcc.gov; jstobaugh@telesaurus.com; warrenhavens@mac.com
Attachments
[1] LOI - Maritime (Released 022610) EB-09-IH-1751.pdf (1181KB);
[2] LOI - Donald DePriest (Released 022610) - EB-09-IH-1751.pdf (1127KB);
[3] LOI - MariTEL (Released 022610) - EB-09-IH-1751.pdf (1072KB)
[4] ULS.Conf.Supp.308,309,dated 3-9, filed 3-10.pdf (65KB);
[5] Suplmnt2NewRecon.MCLM.309-308.3-9-2010.pdf (225KB);
[6] (1 of 3) Skybridge.Petition.Declaratory.Rulings(w errata and notice at end).pdf
(388KB); [by mistake uploaded twice, thus one deleted here]
[7] 2 FCC decisions, Dennis Brown-Kay. annotated..pdf (243KB);
[8] Atlis (Telesaurus et al LLCs), C-HALO research, UC Berkeley, gift and
outline.pdf (104KB);
I send this again. This time I add the third EB LOI which I intended to include and
referenced below.
- WH
----- Forwarded Message ----

From: Warren Havens <warren.havens@sbcglobal.net>
To: gary.schonman@fcc.gov; brian.carter@fcc.gov
Cc: d brown <d.c.brown@att.net>; Scot Stone <Scot.Stone@fcc.gov>; jeff tobias
<jeff.tobias@fcc.gov>; jstobaugh@telesaurus.com; warrenhavens@mac.com
Sent: Fri, March 12, 2010 10:03:42 PM
Subject: Letters of Inquiry: EB to MCLM, Maritel, WPV- D. Brown
Mr. Stone:
Thank you for forwarding the attached LOI letter copies. Also, please note that I do not
use any AOL email anymore. FYI, for a backup, I now use the .mac email on this email.
-----
To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 1 of 151

Gary P Schonman
EB, FCC (202) 418-1795
Brian Carter, EB, FCC
Mr. Schonman and Mr. Carter:
Today I received a certain filing by Dennis Brown directed to Mr. Stone that referenced
the attached three LOI letters (LsOI).
Immediately thereafter, I called Mr. Stone asking about the identify of the referenced
LsOI, and if I could obtain copies. He noted to me that I was listed on the service list. I
explained to Mr. Stone that I did not receive the letters in the mail. I don't know why (we
have had some mail delivery delay problems, but I am not aware of failures).
Had I received these LsOI, as I explained to Mr. Stone, I would certainly have referenced
the letters in prominent manner in the filing I submitted this week on 3.9.2010, copy
attached hereto: the attachments are on ULS under the captioned File Number.
I preliminarily address these LsOI below, and do so by email to expedite, and since as
noted above my receipt of these was delayed.
-----
I copy attorney Dennis Brown on this email.
I will file a copy of this email letter, and its attachments, on ULS under the file number in
the subject Section 309 proceeding, FN 0002303355.
I will also mail a copy to the same parties listed in the certificate of service to the
attached petition discussed in section "(1)" below including since many of them are
named in this email below as having impermissible relations with MCLM and others that
are subject of the attached Letters of Inquiry. (As stated in that Certificate of Service,
since the attachments will be on ULS under that FN, they will not also be printed and
mailed.)
-----
Our companies. I describe these at the end below. [*]
Request
By this email, I request that in any future communication with regard to the attached
three LsOI, that you email copies to me and to Mr. Stobaugh (the GM of our
companies, now unavailable in Chile tied up in earthquake recover matters for his family,
but we hope will resume work for our companies before too long) using the email
addresses on this email. That will get to use sooner, and will be a back up to any mailed
copies. I also request this for the same reason (fairly obvious, in modern business) that
you request (instruct) the same of the addressed parties in the three LsOI at their end.
Notices and copies

(1) By this email, I give notice to you of the attached filing I submitted for my companies
dated March 9, 2010, submitted on ULS after 9 pm East time, thus it has March 10, 2010
ULS date stamp.
- The many attachments are filed on ULS also, and can of course be accessed there.
- These attachments are listed in the attached ULS report confirming the filing.
If you want me to print and mail to you hard copies, I will do that. This filing and its
attachments contain (among other facts) new facts not reflected in the attached LsOI
and the subject of the LsOI (the subject being the past letters of addressed parties
responding to the Section 208 investigation and other related matters).
In regards to this attached filing, as I explain in that filing, my companies have

substantial additional materials still to be filed that are indicated in the attachments that
include "preliminary" or "prelim" in the PDF file names and on top of the attachment. I
explain in the filing why these were not included yet, and I noted in these "preliminary"
attachments that if the FCC requested that we send these before we complete our
review and annotations, and use in a further supplemental filing, we will do that.
We provide the attached filing, and the attached and still be be submitted information,
since the Depriests, MCLM, Maritel, and WPV failed to do so. They had an obligation to
do so, and were put in legal positions to do so at least a half dozen times since year
2005, but they chose to-- jointly and severally-- provide inaccurate and incomplete
information contrary to FCC and other applicable law. The cannot now complain of any
delays, or additional time to complete full investigation either by the FCC or by my
companies as affected parties (ultimately with rights of appeal to courts).
- This 3.10.2019 filing, and/ or the additional information, include, among other things:
- Affiliates, general. Additional undisclosed affiliates of MCLM that are large

companies.
- Deliberate obfuscation of control, and disregard of alleged entities. The control in

MCLM, Maritel and affiliates are not clearly stated, and are contradicted and obfuscated,
by various statements by persons alleging to speak for them before the FCC, the States
of MS, DE, TN, in private third-party contracts, in courts, and in other legally binding
filings and documents. Thus, it is not clear who in fact has legal authority, and
obfuscation is clear. Where persons allow, or create, such unclarity, particularly very
experienced business persons and attorneys, then the legal entities should be
disregarded, and the persons involved all held responsible and liable. I believe that is
well established in applicable law.
- Secured lenders. Many lenders to MCLM, Maritel, WPV, and Mr. and Mrs.
Depriest, that took place in or continued into the relevant years (years leading up to
Auction 61, and thereafter re DE disclosures, etc.), which by the UCC filings had
effective control over these borrowers, by having security in all or substantially all of the
assets-- including as the UCCs state and indicate, their FCC licenses themselves and
the license-based assets (station equipment, etc.). Affiliation is based on substantial
control, or substantial ability to control. This is unambiguously shown in many of these
UCCs in the relevant period of years.

- Meaning of controller terms and "corrections." An analysis, from an attorney in
corporate law, as to meanings of "director" "officer" and other such terms, and the
limitations of real and alleged "corrections" of filings by a legal entity to a State agency
(these are central to some of the responses by Sandra and Donald Depriest to the
Section 308 investigation letters).
- MCT. A number of "MCT" companies, some of which, by the documents we

found, are controlled by Mr. Donald Depriest, and the others are either controlled by the
companies he controls or at least are other "MCT" companies in which he has major
ownership and indicia of control.
- Mobex predecessors / affilates of MCLM. A number of "Mobex" predecessors /

affiliates of MCLM, some of which are reflected as taking actions before the FCC, in the
attributable years for affiliates prior to auction 61, and other of which take actions
external to the FCC into those years.
- NRTC. There is entirely clear evidence in the short form of MCLM in Auction 61,
and in responses of NRTC and MCLM to the Section 1.41 challenge my companies filed
to that short form, that the National Rural Telecommunications Commission ("NRTC")
entered an agreement with MCLM with regard to the licenses it bid on in that auction and
did secure, and that after the auction NRTC offered spectrum in these licenses to its
members. My companies presented the evidence in various filings in the subject
Section 309 proceeding.
- Nextel. Information that Nextel appears to be an affiliate, reflected in governmental

filings including before the FCC. It is public, including in FCC filings by Nextel (FRI) and
Mobex, that they engaged in spectrum purchases and resultant large gross revenue to
Mobex (the amount can be reverse calculated from unjust enrichment figures, at least in
large part), and an ownership stake Nextel took in Mobex, etc. (that stake may involve
internal agreemeents that gave Nextel some level of control as meant in FCC DE rules
on affiliation).
- Motorola dealers in many cities also have management agreements with Mobex
and then with MCLM, and those give rise to affiliation under FCC DE rules, at least they
can depending on the nature of said management agreements.
- American Telecasting and Sprint are also affiliated co-defendants of Donald

Depriest in major litigation extending to recent years, and involving their controlling
interests subject of that litigation. We have collected some relevant public filings in this
regard.
- TDF and Spectrum Bridge. The Telecommunications Development Fund is a

primary funding source of Spectrum Bridge, the agent for MCLM that is marketing the
sale and lease of all of its FCC licensed spectrum. For reasons I partially state in the
attached 3.10.2010 petition and one of its exhibits, for good cause I question whether
this is lawful.
- Senior FCC staff have been and remain directors of TDF: that in itself raises
questions, since TDF puts itself out as a private entity, and one that deals with FCC
licensees as I just noted. That does not appear proper, at minimum.
- In this case, with MCLM, and via Spectrum Bridge, wholesale sale of its nearly
nationwide AMTS spectrum, most bought in auction 61 and n never used. Sale of

spectrum subject to ongoing formal investigations of violations (including violations that, I
submit in these proceedings, fully disqualifies the subject license and licensee), can not
be more clearly a form of warehousing and laundering.
- Public interest law parties in DC have also raised questions about the legality of
TDF (including its obtaining and use of public funds [interest on certain federal receipts]
but for private purposes, yet directed in large part by sitting Federal agency officials,
etc.). Several years ago, when I called to discuss with TDF my Foundations and LLCs
FCC licensed work in nationwide intelligent transportation systems and environmental
protection, I was summarily dismissed, and when I asked of the nature of TDF and its
funding, I got evasive responses. The Depriests, owners of MCLM, have strong
connections in the political circles which, at the time, also controlled TDF, from the
resumes listed of its Directors.
- Other. Above are a few items I point out here, among others.
(2) I will also check the next week on other filings that my office submitted in the subject
Sections 308 and 309 proceedings (those referenced in the attachment I just noted) and
forward those to you, since I do not know what you have and do not have.
Please let me know if I should assume that you definitely have all of the filings my office
submitted in both of those proceedings already? (I know of know way I can or you can
do that for certain, unless I provide them directly, since there is no check list, and no
Bates stamp of the sequential documents, etc.) Some were filed under the File Number
in the Section 309 proceeding, and some were I believe sent only to Messrs Stone and
Tobias (my companies GM that handles the files is not in the US and available now, and
it will take me some time to review files and determine this).
(3) The following is also relevant since it shows the determined, concerted resistance by
MCLM, Mobex, the Depriest and related parties from being subject to fact finding
needed for threshold legal-compliance matters. That is relevant here for obvious
reasons.
MCLM and Mobex (the definitions of which, in the subject court complaints [see next],
include the owners and controllers) and "Does" (including co-conspirator affiliates), are
subject of three court cases filed by my companies in State and US courts. These
matters are subject of, and the court case pleadings are provided in, a pending request
for declaratory ruling my companies submitted to the FCC last fall. Copy attached. If you
want the attachments (court pleadings and decisions in these three cases), I can email
them to you. We believe but are not sure that a certain governmental entity, or several,
will file comments of significance in reference to this pending declaratory ruling petition.
I point this out here for the following reason: In those three court cases. As shown in
those cases (again, for which pleadings are filed in the pending dec ruling request),
MCLM, Mobex and the Depriests (and co conspirators, co defendants) take the position
that they cannot be subject to any claims in State or US courts as to torts, contract
interference, and antitrust violations, etc. since they hold FCC licenses (the licenses
subject of the attached LOIs) and since, per these defendants, all such claims are
entirely preempted under Section 332 of the Communications act since they may affect
the "rates" or "entry" of the licensed entities. That is contrary to the position the FCC

took in In the Matter of Wireless Consumers Alliance, Inc., 15 F.C.C.R. 17021 (2000)
and in other cases, including most recent US Supreme Court rulings (e.g., Altria v.
Good, 129 S. Ct. 538, that preemption is to be narrowly construed) and President
Obama's guidance to federal agencies on preemption (see commentary at:
http://www.washingtonpost.com/wp-
dyn/content/article/2009/05/21/AR2009052104016.html). In sum --
- Before the FCC, these defendants allege what they like, change their facts and
arguments, and virtually in all cases they get away with it.
- Mr. Dennis Brown has a history in this regard also. See attached annotated
copy of : WT Docket No. 94-147. FCC 01-341.17 FCC Rcd 1834; 2002 FCC LEXIS 409;
25 Comm. Reg. (P & F) 1015 Rel. January 25, 2002. He is doing the same in the
subject Sections 308 and 309 proceedings. (The current US criminal code does not
allow even legal counsel to participate in false information and misleading federal
agencies and agents. That is beyond permissible aggressive defense.)
- Thus: (i) The position of defendants in the matters under the subject LsOI and
related Sections 308 and 309 proceedings is clear: Their assertions should be accepted
and not challenged by their competitors-- or the FCC-- and there cannot be any hearing
held under 47 USC Sec 309(d) nor otherwise. (ii) And in court, their position is that any
claim of any sort is preempted-- preempted by FCC exclusive jurisdiction but then at the
FCC cannot be pursue either.
- Fraudulent reports of license construction, operations, rule-change positions, and

license renewals: This position, summarized above, includes where, for years, they
provided false reports of construction to the FCC (they reported as constructed stations
that were not), then warehoused auto-terminated station licenses across the nation
(repeating many times in FCC dockets that these were fact constructed and in operation,
including (i) to get rule changes for more incumbent protection, and (ii) to try to scare off
competition in upcoming auctions of co-channel geographic licenses), then renewed
these bogus station licenses (the FCC Bureau eventually discovered [after years of
evidence I presented] and deleted some of these). Their stated position in courts and
before the FCC is that they are untouchable on this and similar violations of FCC law.
However, the Commission has stated otherwise: From Attachment (i) to my 3.10.2010
(3.9 dated) filing noted above (some emphasis added):
---
In Pass Word, Inc., a radio common carrier falsely certified to the FCC
that it had completed its construction obligations (pursuant to a
construction permit), in order to obtain a grant of its licenses. The FCC
revoked Pass Word’s licenses:
Among [the] documents are forms and letters filed with the
Commission certifying the operative status of facilities for which
construction permits had been issued. As detailed herein, the
Commission finds that Pass Word and Bacon filed documents with
the Commission in 1974 representing that construction of certain
facilities had been completed in accordance with the term of the
construction permit, and that equipment and service tests would
begin shortly, when in fact the facilities were not ready for
operation. [Exactly the case re MCLM’s predecessor, Mobex.]
The record establishes that equipment essential for operation of

the facilities was not on hand when the representations were
made, and that construction was completed and service
commenced long after the expiration of the construction permits.
Moreover, the record establishes that Bacon, individually and as
the chief operating officer of Pass Word, concealed
facts in correspondence, pleadings and forms filed over a three-
year period regarding construction of the facilities and the
Commission's inquiry pertaining thereto. The facts establish
that the concealment was deliberate and that Bacon deliberately
made misrepresentations to the Commission.” Pass Word, Inc.,
Order to Revoke Licenses, 76 F.C.C.2d 465 (1980) at ¶ 10,
aff’d, Pass Word, Inc. v. FCC, 673 F.2d 1363 (D.C. Cir. 1982).
****
The FCC has specifically disqualified licensees based on misleading

renewal applications. See RKO
General, Inc., 78 FCC 2d 1, 98 (1980) (submissions to the Commission
'containing statements that are
'technically correct' but misleading as to the known facts' amount to lack
of candor).
[If misleading ones are disqualifying, the outright fraudulent renewal

applications certainly are.]
---
- These defendant's "untouchable" position, and fraudulent acts and concealment,

indicated above makes a mockery of essential principles of rule law that includes rights
to have claims supported by a well plead complaint (and before the FCC, sufficient prima
facie evidence in a petition to deny, and petition for reconsideration on new facts) heard
in an evidentiary hearing, where those claims are matters of protected rights.
- The predictable result is just what has taken place in these proceedings (and ones
before them extending to before the past decade), and that is not "in the public interest
convenience and necessity." (The FCC has warned me in these proceedings to cease
complaints. I have not since, to the best of my knowledge, I am correct on the facts and
law, and I respect and uphold the purposes of Congress in the Communications Act and
an FCC that acts in accord.)
-----
Again, as noted above, I would appreciate and request that, for my companies, I be
included in communications to and from the parties addressed in the attached LsOI by
email (to me and Mr. Stobaugh). To the degree some of the communications are not in
electronic form, please note that to me, and I will then seek those via the FCC copy
contractor or, if needed, under FOIA.
I assume that some of the responses to the attached LOIs may be submitted under
request for confidential treatment and FOIA exemption. In those cases, after review, I
may submit FOIA requests. In this regard, my position is that these LsOI are on subject
matters in the Section 309 proceedings (the LsOI would not have been made but for my
companies petitions) in which my companies are the petitioners, and thus, that we have
rights to any information that respondents file that directly or indirectly oppose our

petitions.
-----
(4) In the subject Section 309 proceeding, in the supplement prior to the one noted
above filed on 3.10.2010, we point out from sworn testimony in the Mississippi Chancery
court, in the case against Donald Depriest that was decided against him last year (for
over $10 million dollars in award), Mr. Depriest's long-time business partner testified that
that he was a hidden or secret major interest holder in FCC licenses and licensee
companies that Mr. Depriest controlled-- not disclosed to the FCC (or competitors with
standing). Mr. Brown, in response, instructs the FCC that any such issue is stale and
the FCC cannot pursue it. That is not correct. As the DC Circuit Court held (underlining
added, and footnotes in original deleted):
In these circumstances nothing in the language of sections 310(b) and
405 deprived the Commission of power to receive the new evidence and
to reconsider or redecide the case .... Delay in seeking re-opening of the
record is a factor to be weighed in the exercise of the Commission's
discretion. Here, however, it was excusable. The only reason the
appellants' effort to reopen was not made earlier in the proceedings was
that the new events which occasioned it were kept secret by WJR....
W. S. Butterfield v. FCC. 237 F.2d 552; 99 U.S. App. D.C. 71; 1956 U.S. App. LEXIS
4852. Decided May 24, 1956. Funds from the sale of these FCC licensed businesses
testified to in the Mississippi court case (which Mr. Depriest has now sealed), went in to
Maritel (then Maritel petitioned to deny its own long form, and mine, and everyone else's,
in the first VPC auction), and then into buying Mobex, and then into Auction 61--
throughout which these practices of hiding required qualifying/ disqualifying information
and other violation of FCC and other law continued unabated. Mr. John Reardon and
Mr. Dennis Brown were among the prime actors responsible in these matters, with Mr.
Depriest and his spouse. The shareholders in these ventures, many large companies,
must have know, as well, and Spectrum Bridge now selling all of the MCLM spectrum.
The buyers and lessees of this spectrum also must have information, since any such
transactions require disclosures, representations, warranties, indemnifications, etc. in
which issues of this nature and extent would need to be addressed.
-----
[*] Our Foundation and LLC, listed below, are the "Petitioners" in the subject Section
309 proceeding and are parties in (per Mr. Stone) and commenters in the related section
308 proceeding. Since we are copied on the attached EB's LsOI, and for other reasons,
I understand that our companies are parties in that proceeding also. Please let me know
if you find otherwise.
Our work related to the FCC licenses we hold nearly nationwide is reflected in the
attached, our latest funding gift to the State of California's University of California
Institute of Transportation Studies for a major cost benefit study of Cooperative High
Accuracy (wireless) Location, or "C-HALO" nationwide infrastructure in the US. It is
based on our companies holding M-LMS, AMTS and other licenses nationwide to
support C-HALO and associated smart transport, energy, and environment radio
systems. This work is further described in papers at: www.scribd.com/warren_havens
(some by me, some in collaboration with UC Berkeley professors, and some by thrid
parties related to our collaborative work). I believe our Skybridge Spectrum Foundation

may be the first nonprofit (IRS recognized 501(c)(3)) foundation formed, capitalize and
operated solely for major new high public interest wireless systems. The economic value
to a nation of C-HALO has been estimated by other nations as on par with Internet
commerce (percentage points of GPD), after several decades once C-HALO
infrastructure and services are well established, and the safety and heath value exceeds
that: Our initiated and funded study at UC Berkeley aims to project the value to the US.
The findings will be published.
Respectfully,
/s/
Warren Havens
President
ATLIS Wireless LLC (a not-for-profit service company)
Skybridge Spectrum Foundation (a nonprofit public-interest wireless operating
foundation)
Environmentel LLC
Verde Systems LLC
Telesaurus Holdings GB LLC
Intelligent Transportation & Monitoring Wireless LLC
Berkeley California
www.scribd.com/warren_havens
www.atliswireless.com
www.tetra-us.us
510 841 2220 x 30
510 848 7797 -direct
----- Forwarded Message ----

From: Scot Stone <Scot.Stone@fcc.gov>
To: Warren Havens <warren.havens@sbcglobal.net>
Sent: Fri, March 12, 2010 11:58:49 AM
Subject: Letters of Inquiry
I don't know why you didn't receive these.

ATTACHMENT 1 - FOLLOWS




Non-docketed Pleadings - Confirmation https://wireless2.fcc.gov/UlsEntry/pleadings/confirmation.jsp?pleadingId...
Non-docketed Pleadings
FCC > WTB > ULS > Non-docketed Pleadings
Non-docketed Pleadings Print Page Help
Confirmation
Thank you for your submission. Please make a note of your confirmation number: 8625.
The following information was submitted with this Pleading:
Type of Pleading
Petition for Reconsideration
Dates
Entered Date: 03/10/2010
Filer Information
Havens, W
Verde Systems et al
2649 Benvenue Ave
Berkeley, CA 94704
(510)841-2220
warren.havens@sbcglobal.net
Contact Information
File Number(s)/Call Sign(s)
0002303355 File Number
Attachment(s)
03/10/2010 Pleading 3-9-2010 Supp, Recon, New Facts, Sec 309 & 308 proceedings Suplmnt2NewRecon.MCLM.309-308.3-9-2010.pdf
03/10/2010 Pleading Attachment (i): Charater policy issues etc Attachment (i)- FCC Character Policy Statement, re MLCM Sec.
03/10/2010 Pleading Attachment 1: MCLM ex parte etc Attachment_1_Notice_ULS_filed_re_MCLM_exparte.pdf
03/10/2010 Pleading Attachment 2: 308 responses, spurious terms, corrections, et Attachment 2- prelim. legal analysis, 308 responses, spuriou
03/10/2010 Pleading Attachment 3: noted list of litigation, MCLM & affiliates Attachment 3- prelim. (list of litigation, MCLM, Mobex, Depr
03/10/2010 Pleading Exhibit_1_MCLM_Mobex_19_pages_docs_re_499A Exhibit_1_MCLM_Mobex_19_pages_docs_re_499A.pdf
03/10/2010 Pleading Exhibit_2_CommInvstmntsAnnualRpts05-07 Exhibit_2_CommInvstmntsAnnualRpts05-07.pdf
03/10/2010 Pleading Exhibit_3- prelim. (re several MCTs) Exhibit_3- prelim. (re several MCTs).pdf
03/10/2010 Pleading Exhibit_4_SRJW_Partnership_DE_docs Exhibit_4_SRJW_Partnership_DE_docs.pdf
03/10/2010 Pleading Exhibit_5--Maritel_DE_UCC_Filing_Scanned_ Exhibit_5--Maritel_DE_UCC_Filing_Scanned_nopswrd.pdf
03/10/2010 Pleading Exhibit_5--MCLM_DE_UCC_Filings_Scanned_ Exhibit_5--MCLM_DE_UCC_Filings_Scanned_nopswrd.pdf
03/10/2010 Pleading Exhibit_5--Mobex_Communications_Inc_DE_UCC_Filings_ Exhibit_5--Mobex_Communications_Inc_DE_UCC_Filings_nopswrd.p
03/10/2010 Pleading Exhibit_5--MobexNetworkServices_DE_UCC_filings_scanned_ Exhibit_5--MobexNetworkServices_DE_UCC_filings_scanned_nopsw
03/10/2010 Pleading Exhibit_6_John_Reardon_interview_re_DePriest Exhibit_6_John_Reardon_interview_re_DePriest.pdf
03/10/2010 Pleading Exhibit_7_Mobex_DE_docs Exhibit_7_Mobex_DE_docs.pdf
03/10/2010 Pleading Exhibit_8- prelim. (re UCCs, DE, TN) Exhibit_8- prelim. (re UCCs, DE, TN).pdf
03/10/2010 Pleading Exhibit_9_Critical_RF_John_Reardon_CEO Exhibit_9_Critical_RF_John_Reardon_CEO.pdf
03/10/2010 Pleading Exhibit_10_SDepriest_UCC_filing_BnkVernon_MS Exhibit_10_SDepriest_UCC_filing_BnkVernon_MS.pdf
03/10/2010 Pleading Exhibit_11_SDePriest_Reverend Exhibit_11_SDePriest_Reverend.pdf
03/10/2010 Pleading Exhibit_12- prelim. (re Nextel affiliate) Exhibit_12- prelim. (re Nextel affiliate).pdf
03/10/2010 Pleading Exhibit_13 et seq- prelim. (other relevant appended material Exhibit_13 et seq- prelim. (other relevant appended material
03/10/2010 Pleading Exhibit_5--WPV_DE_UCC_Filings_Scanned_ Exhibit_5--WPV_DE_UCC_Filings_Scanned_nopswrd.pdf
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1 of 1 3/10/2010 12:39 AM

Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Maritime Communications/Land Mobile LLC DA 07-1196

Form 601 Application and Amendment File No. 0002303355
for Auction No. 61, and Request for Report No. AUC-61-G
Waiver of § 1.2110(c)(5)(A)
To: Office of the Secretary

Attn: Chief, Wireless Telecommunications Bureau
Filing of Relevant Information in the Section 308 Proceeding

Related to the Above-Captioned Section 309 Matter
And
Supplement of 3.9.2010 to the
Petition for Reconsideration Based on New Facts
In the Above-Captioned Section 309 Matter 1/2/3

Skybridge Spectrum Foundation
Verde Systems LLC
Environmentel LLC
Warren Havens
2649 Benvenue Ave., Suites 2-6
Berkeley, CA 94704
Ph: 510-841-2220
March 9, 2010
1
Capitalized terms herein are defined herein or in Petitioners’ past pleadings in the Section 308
and 309 proceedings captioned above. A Request to Accept this filing is being filed on or about
the same date as this supplement.
2
See attached Certificate of Service: Petitioners provide copies of this supplement to parties that
have a relation with MCLM and the subject “Licenses” since they may also be effected by the
supplement, and more importantly, since they may have relevant information to disclose out of a
duty of candor to the FCC in this proceeding, including in relation to the FCC “3 Letters”
Section 308 proceeding previously defined in the New Recon.
3
The previously used defined terms for the undersigned Petitioners individually (“ACL,” “ITL”,
“TVL,” “Skybridge” and “Havens”) have the same meaning here (see e.g. the petition to deny or
subsequent petitions for reconsideration filed regarding File No. 0002303355).

Contents
(i) Introduction and Summary and Length 3
(ii) Timing and Attachments (further) 6
1 Ex Parte Communication by MCLM 9
2 Legal Analysis: “Manager”, “Director”, “Officer”; Spurious 10

Corrective Corporate Filings; Etc.
3 MCT Corp (and other “MCT” Entities) Are Affiliates of MCLM 11

(Continued)
4 Mobex is an Affiliate--a Controlled Entity--of MCLM, and, 13

Nextel Was an Affiliate of Mobex and thus of MCLM
5 John Reardon Is an Officer of MCLM, and Failure to Disclose 16

Information
6 MCLM Admission of Failure to Disclose Significant 18

Attributable Gross Revenues of MCLM Affiliates
7 Relevance to 308 Proceeding, and FCC Should Seek and 20

Require Other Needed Information
8 Appended Documents, and Certain Comments Thereupon 22
9 Additional Relevant Information 29
10 Charisma Communicaitons Inc. – Failure to Disclose Actual 30

Ownership
11 MCLM, Mobex, DePriests’, & Associates. – Various Litigation 31
12 FCC Failure to Disclose Relevant Information in 309 Proceeding 32

Makes Orders and Actions Defective
-- Appended Materials:
These are mostly listed in Section 8 above.
See Cert. of Service: these are on ULS under FN 0002303355.

(i) Introduction, Summary and Length
Summary and Lenght: This is provided by the descriptive section titles. Also, the
subject matters are already described in preceding filings in the subject Sections 309 and 308
proceedings. Petitioners submit that the length of this filing be accepted for self evident reasons:
this material is directly relevant to the FCC investigations and determinations in the subject
Sections 309 and 308 proceedings, and for compliance with the applicable FCC law and public
interest.
Timing: Key staff of Petitioners has been in Chile in the area of Concepcion with family
members since before the recent earthquake to this time. Due to the earthquake situation, and
needed recovery tasks, he has not been able to continue company business. This has delayed this
filing. Upon FCC request, a declaration with details can be provided.
Forthcoming additional information. As indicated herein, additional information related
to the subject of this filing is being obtained by Petitioners to present in these Sections 308 and
309 proceedings, including with regard to the various “MCT” legal entities4 which are affiliates
of MCLM and, as evidence shows, have MCLM-attributable gross revenues, not disclosed by
MCLM, that place MLCM outside of any bidding credit with regard to Auction 61, and
moreover, cause additional false certification on the short and long forms in Auction 61,
additional change in bidder size, and additional grounds under applicable rules for
disqualification in that auction and from holding licenses from that auction.
4
Sandra Depriest, the alleged sole controller and owner of MCLM, to this day has been candid
on this and a host of other required disclosures. In her respond to the FCC’s Section 308 inquiry,
she indicated that she could not explain certain information about Donald Depriest, her husband,
and the FCC would have to ask him. That of course is not what FCC rules require. They require
the auction applicant and bidder who chooses to seek a bidding credit to know it affiliates and
their attributable gross revenues. When the affiliate at issue is the spouse, it is beyond belief that
the applicant does not know and cannot get information required by the FCC from the spouse
affiliate. Lack of candor on this level is disqualification to hold any FCC licenses according to
the FCC policy on this matter, included here as an attachment with certain relevant items noted.
3

Character examination, and preceding factual investigation:
The Commission acknowledges… that in the Uniform Policy the Commission

itself concluded that Section 308(b) both gave it "the authority and imposed upon
it the duty" to examine basic character qualifications "in evaluating applicants for
radio facilities."
****
We do, however, agree with NRBA and Citizens that some behavior may be so
fundamental to a licensee's operation that it is relevant to its qualifications to hold
any station license. [Underlining added.] 5
The Commission in this case should indeed to the above and has a duty to do so, after it
completes thorough discovery and investigation of relevant facts, which it has not yet done.
There are numerous non-FCC government sources identified by Petitioners as holding relevant
facts and other parties from whom the FCC should subpoena this information.
This filing is needed since MLMC, the Depriests, Dennis Brown, WPV and Maritel (and
parties related to them including those on the attached Service list) continue to violate the
Section 308 3 Letters demands for information and documents, FCC rules, and sections of the
US criminal code relating to underlying matters including those captioned above: this filings
provides some of the required withheld information and documents. For the same reason, further
information will be filed once Petitioners complete obtaining it, as noted below.
The information in this filing was drafted to be used in a supplement to the petition for
reconsideration based on new facts in the above-captioned Section 309 Proceeding (“309
Proceeding”) regarding File No. 0002303355 (the “New Recon”). In relation thereto, Petitioners
sent an email to the FCC on 12/18/09 explaining there intentions to submit in the near future the
5
In the Matter of Policy Regarding Character Qualifications....and Procedure Relating to
Written Responses to Commission Inquiries and the Making of Misrepresentations to the
Commission by Permittees and Licensees. Report, Order, and Policy Statement, FCC 85 648.
Released: January 14, 1986. This is included as Attachment (i) hereto with related materials.
4

just noted filing in the 309 Proceeding which would also be provided to Mr. Jeffrey Tobias and
Mr. Scot Stone of the FCC for the purposes of the 308 Proceeding (further defined herein).6
Petitioners have decided it is appropriate at this time to submit this information to Mr.
Tobias and Mr. Stone for the purposes of the 308 Proceeding. (See also “Timing” note above.)
At the same time, they submit this here, as captioned above, in the 309 Proceeding to preserve
their rights to have this information considered in that Section 309 Proceeding (they do not know
when the FCC may decide in that matter), although there is additional information of decisional
importance from governmental and other third party sources Petitioners have identified and
arranged to obtain but have not yet based: Once they obtain that, they will submit it as a further
filing in both the Section 309 and Section 308 proceedings.7
Thus, Petitioners hereby submit this supplement (the “Supplement” or “Supplement
One”) to their New Recon. Petitioners hereby reference and incorporate herein all of the content
of all of the exhibits and attachments hereto.
This Supplement is being provided to the FCC in the 3 Letters8 proceeding (also called
herein the “308 Proceeding” [under Section 308 of the Communications Act]) via email to Mr.
Jeff Tobias in the Wireless Telecommunications Bureau, who is apparently in charge of handling
the 308 Proceeding investigation. For reasons explained previously to the FCC and further
6
Petitioners received no response to that email, indicating that FCC staff did not object to the
forthcoming filing Petitioners described. In addition, MCLM and the other parties addressed
also did not express any objections to the filing indicated in the email, which is the filing
submitted herewith.
7
For purposes of a further pleading in the 309 Proceeding, Petitioners have to meet certain
pleading standards including factual summaries of the documents presented, and in relation
thereto presentation of relevant law. However, with regard to the 308 Proceeding, the FCC has
recognized that Petitioners are parties, but without specific rights of participation. Petitioners do
not know how FCC staff is processing relevant information in the 308 Proceeding. Petitioners
believe it is appropriate to deliver the information in this filing at this time, so that FCC staff
handling the 308 Proceeding have it available and can process it under the standards of review
that they are applying.
8
Copies of the 3 letters are at: http://www.scribd.com/people/documents/18872437/folder/147347
5

explained below, the above-captioned Supplement and the New Recon are fully relevant to the
308 Proceeding. Therefore, a copy of this will be submitted to Mr. Jeff Tobias with a copy to
Mr. Scot Stone, as shown in the attached Certificate of Service.
Petitioners raise legal concerns as to not being recognized more clearly as having rights
to participate in the 308 Proceeding since they are clearly parties with standing and interest and it
was their prima facie evidence (evidence the Bureau erroneously ignored in the first Order
denying the PD) and arguments that has led to the 308 Proceeding. In fact, the 308 Proceeding is
investigating matters raised in Petitioners’ Petition to Deny the above-captioned Application
under Section 309 (of the Communications Act) and subsequent appeals. Thus, Petitioners are
filing this Supplement and it should be accepted in both the 309 Proceeding and the 308
Proceeding.
This is the first of several supplements that Petitioners will be providing. As Petitioners
informed the FCC in the 308 Proceeding and 309 Proceeding, the 309 Proceeding and the
investigation under the 308 Proceeding are in fact one related proceeding. The 308 Proceeding is
based on the 309 Proceeding and is in effect a grant of Petitioners’ PD and requests for
reconsideration in the 309 Proceeding (as well as Petitioners’ other challenges with regard to
Maritel and WPV).
(ii) Timing and Attachments (further)
The reasons Petitioners are submitting this Supplement One at this time are as follow:
First, see introduction discussion, above. Also, we do not attempt to extract and
summarize herein all relevant information from appended materials, including since the FCC is
investigating these matters on its own.
(1) As explained in Section 1 below regarding a certain “ex parte presentation” by
MCLM (see Attachment 1 hereto that contains a Notice filed by Petitioners that contains the “ex
parte presentation”), the FCC’s response via Mr. Tobias, who is handling the 308 Proceeding,

stated in part, “I can appreciate your concerns, and understand that it's in the interest of all of the
parties to get these matters resolved sooner rather than later” and its response via Mr. Scot Stone
stated in part, “As I have said previously, the staff is actively working to resolve the pending
matters involving MC/LM, but there are a lot of moving parts and I still am not in a position to
predict or promise resolution of any particular matter by any particular date.” (underlining added
for emphasis). This suggests that the FCC is processing responses to the 3 Letters. Petitioners
are submitting this in order for the FCC to consider what Petitioners have at this time in case
FCC staff is well into their processing. Mr. Stone of the FCC has stated that Petitioners are
parties to the 308 Proceeding and certainly Petitioners are parties to matters Mr. Reardon of
MCLM complained about in the “ex parte presentation”. Mr. Tobias’s response to Mr. Reardon
was incorrect. Petitioners have asked the FCC for a further full investigation in both the 308
Proceeding and 309 Proceeding and other Section 309 proceedings regarding BREC, EnCana Oil
and Gas, Inc. (“Encana” or EnCana”), Pinnacle, Mobex, Maritel, WPV, etc. including collusion
and laundering by the assignees and that the FCC should obtain the full assignment sale contracts
and any related agreements for the reasons given. Petitioners certainly understand that Mr.
Tobias’s response was no more than an indication that the FCC is attempting to process matters
Mr. Reardon complained about, however, it is a further reason why Petitioners feel that they
should submit materials and info they have now in this Supplement One.
(2) As previously explained in the 308 Proceeding and 309 Proceeding, SSF sought
under Freedom of Information Act (“FOIA”) request information regarding MCLM’s and
Mobex’s Form 499-A and 499-Q filings. The FCC was very tardy in supplying to SSF the 19
pages of documents (the “19 Pages”) that the FCC had determined should be released.9 The
9
As discussed herein, it also appears from the 19 Pages received that the FCC chose to redact
information (some of the information that the FCC attempted to redact is still legible through the
black marks) that was not of a confidential nature, but that reversed the meaning of the legible
text to indicate that MCLM and Mobex had been providing the required interconnection for their
7

FCC only released the 19 Pages recently after SSF submitted a formal objection and that it was
prepared to file litigation in court. When the FCC immediately after that released documents, it
gave no reason for not releasing the 19 Pages for over 2 months.10 SSF was waiting for that
release to include in Supplement One. Petitioners believe it is important to submit the 19 Pages
now because they are relevant for reasons given below.
(3) MCLM continues to submit license assignment applications. That is part of their
announced sale of all of their AMTS spectrum (That announced sale is described in the
attachment to Section 1 below). The ex parte presentation from Mr. Reardon (see Section 1
below) made clear that MCLM is pressuring the FCC to hurry up (in Mr. Reardon’s words, “Not
sure how much more of this we can take!” and “Obviously from MCLM’s perspective, the
sooner we get this behind us the better. We want to get on with business.”) in a determination of
the 308 Proceeding and 309 Proceeding since MCLM wants to “get on with business”. That ex
parte communication began with Petitioners email to Mr. Brown, counsel to MCLM, regarding a
AMTS incumbent stations, when the actual language showed they had not been meeting that
requirement (and as other facts in the New Recon also showed —see e.g. the WCB Proceeding
which contains statements by MCLM and Mobex that they were operating as PMRS and not
CMRS) and thus those licenses failed to meet the AMTS rule requirements and had to have been
cancelled and appropriate sanctions taken against MCLM and Mobex for illegal operations.
Petitioners have been challenging, with sound facts, that the MCLM and Mobex incumbent
AMTS licenses failed to meet the FCC’s rules for construction and operation. The FCC has in
the past, except where facts were admitted to by Mobex, ignored those facts, including clear
evidence of single-site stations, impermissible major modifications, failure to construct stations
reported as constructed and renewed, etc. For the FCC in a FOIA proceeding to have redacted
non-confidential text showing that Mobex and MCLM failed to comply with the FCC rules to
keep the site-based AMTS licenses supports Petitioners arguments that there is prejudice and
intent by some of FCC staff to ignore FCC rules and facts to maintain, contrary to the rules, the
MCLM and Mobex AMTS site-based licenses and ignore clear evidence requiring their
disqualification for lack of character and fitness to be a Commission licensee. Petitioners intend
to file a supplement to their pending Application for Review of FOIA Control No. 2009-089
referring to this improper redaction and asking for immediate release of all redacted information.
Petitioners also intend to file a complaint with the FCC’s Office of General Counsel and seek
other relief and review regarding this FOIA request and past FOIA requests and other requests
for information submitted to the FCC.
10
Letter dated December 3, 2009 from Jeremy D. Marcus, Acting Associate Chief, Wireline
Competition Bureau, FCC to Mr. Jimmy Stobaugh, Skybridge Spectrum Foundation re: FCC
FOIA Control No. 2009-089.
8

petition to deny filed regarding an MCLM assignment to Encana. The email by Mr. Reardon
also commented on the BREC assignment sale. The sole business, as Havens commented in his
reply to Mr. Reardon’s ex parte communication, and showed by referenced documents by URL
links, is selling all of MCLM’s spectrum, while the legality of the spectrum and MCLM is being
directly investigated in the 308 Proceeding and 309 Proceeding. Also, Sandra DePriest in her
response to the 3 Letters and in her response to Petitioners’ comments on the 308 Proceeding,
asked that the FCC hurry up in a decision.11 In case the FCC is moving quickly to a decision,
contrary to Petitioners’ suggestion for a further full investigation, Petitioners are submitting this
Supplement One.
1. Ex Parte Communication by MCLM
Havens, President of Petitioners, was sent by Mr. Scot Stone of the FCC an ex parte
communication (the “Ex Parte”) that John Reardon, CEO of MCLM, sent to the FCC. Attached
hereto as Attachment 1 is a Notice by Petitioners filing that ex parte communication and
discussing MCLM selling all of its spectrum via Spectrum Bridge and its relation to the
Telecommunications Development Fund (“TDF”).
Petitioners hereby formally request:
(1) the FCC apply sanctions against MCLM for that Ex Parte. They are sending a copy
of this to Office of General Counsel for that purpose, but also believe the FCC staff handling the
308 Proceeding and 309 Proceeding should on their own motion present the Ex Parte and the
response thereto by Petitioners in Attachment 1 to the Office of General Counsel.
(2) the FCC undertake the investigation requested by Petitioners in Attachment 1 hereto
including with regard to the relationship between MCLM, Spectrum Bridge and TDF and FCC
involvement in TDF, which has taken place and continues during the 308 Proceeding (and the
11
See Letter dated October 5, 2009 from The Reverend Sandra DePriest to Mr. Jeffrey Tobias,
Esq., Mobility Division, Wireless Telecommunications Bureau, re: File Nos. 0002303355 et al.
9

related 309 Proceeding—again, in which Petitioners’ reconsideration request has been
effectively granted).
2. Legal Analysis:
“Manager”, “Director”, “Officer”; Spurious Corrective Corporate Filings; Etc.
Attachment 2 hereto is a legal analysis regarding to the meaning of certain terms, and the
legal significance of these terms use in government and other statements, essential to the FCC’s
3 Letters and the responses thereto (and respondents’ alleged corrective filings before state
corporation entities and related matters): said terms including: “Director”, “Officer,”
“Treasurer,” :Manager,” etc. Respondents attempts to rewrite their own history fail, and is
simply more lack of candor and required threshold character and fitness.
Regarding the topic of this Subsection 2, and the rest of this filing: the FCC should apply
the appropriate, required law, as reflected in the following decisions (among others):
[T]he Commission defines lack of candor to include not only providing false
information but also “concealment, evasion or other failure to be fully informative
accompanied by an intent to deceive.” Trinity Broad. of Fla., Inc., 10 F.C.C.R.
12020, 12063 (1995).
James A. Kay v. FCC, 396 F.3d 1184; 364 U.S. App. D.C. 448; 2005 U.S. App. LEXIS 1540
(hearing, en banc, denied). The attorney for MCLM, the Depriest, and WPV-- Dennis Brown--
was the attorney in the just-cited case. In this Kay case, the US Circuit Court for FCC upheld
the FCC decision including the following:
See also RKO General, Inc. v. FCC, 670 F.2d 215, 229 (D.C. Cir. 1981) ("As a
licensing authority, the Commission is not expected to 'play procedural games
with those who come before it in order to ascertain the truth' . . . . [….] Moreover,
the failure to provide information known to be relevant or a failure to respond
based on a facially implausible theory may constitute lack of candor. Fox
Television Stations, Inc., 10 FCC Rcd at 8508 PP137.
In the Matter of James A. Kay, Jr., FCC 01-341. Released January 25, 2002. 17 FCC Rcd 1834;
2002 FCC LEXIS 409. Also,
….concealed material facts…."none of NMTV's applications seeking a minority

exemption . . . disclosed to the Commission information about Duff's relationship
10

with TBN or NMTV's relationship with TBN."…. NMTV's applications were
"models of nondisclosure" … and therefore constituted abuse of process.
In re Applications of Trinity Broadcasting of Florida, FCC 98-313. Released April 15, 1999. 14
FCC Rcd 13570; 1999 FCC LEXIS 1591.
In addition, as indicated in the 308 Proceeding 3 Letters (and further in attachments to the
New Recon citing more fully relevant criminal code sections), the responses would violate the
cited US criminal code if they contain false or misleading information, and they in fact do. They
are thus violations of US criminal code and should be referred to a US Attorney for prosecution.
The FCC cannot harbor criminal violators by not reporting violations.
3. MCT Corp (and Other “MCT” Entities)

Are Affiliates of MCLM (Continued)
Petitioners already clearly demonstrated in the 309 Proceeding that MCT Corp. is an
affiliate of MCLM, never disclosed as required, and also provided evidence regarding the gross
reviews of MCT Corp. attributable to MCLM in Auction 61 (including by showing the
subscribers of its foreign cellular companies in the relevant years). This existing demonstsration
is hereby supplemented.
In addition, Petitioners are having a economist that regularly deals with commercial
wireless companies in the US and other nations, compile further evidence and analysis to
demonstrate the MTC attributable gross revenue (for purposes of the 309 Proceeding, and thus
also relevant to the 308 Proceeding). This will be filed in a further supplement in the Section 309
and 308 Proceedings.
Donald Depriest, writng for WPV in its response to the 308 Proceeding, admits that he
is a Director of MCT Corp.
In fact, many public domain records show that Donald DePriest is the Chairman of the
Board for MCT Corp. Under unambiguous FCC rules, MCT Corp. is an affiliate of Donald
DePriest and thus an affiliate of MCLM.
11

Mr. Reardon’s radio interview (see below discussion and Exhibit 6 hereto) show that
Donald DePriest headed the sale of MCT Corp. for hundreds of millions of dollars. Various
evidence is shown herein, in Exhibits, of the gross revenues of MCT Corp, and as indicated
above, an economist is preparing an additional report with additional evidence. The attributable
gross revenues of MTC Corp. to MCLM in Auction 61, by themselves, cause MCLM to not have
been qualified for any bidding credit. (However, the disqualification for change in bidder size is
not loose the credit (and thus, pay it back when caught), but to be disqualified from the auction:
that is clear in FCC rules, and FCC and court precedents—all cited by Petitioners many times in
previous pleadings in the 309 proceeding: this is not fully repeated here.)
MCLM has belatedly admitted in both the 308 Proceeding and 309 Proceeding (but never
in any amendment to the above-captioned Form 601) to many companies that Mr. DePriest
controls or is an officer of as being affiliates. However, also notably, MCLM and Sandra
DePriest in their response to the 308 Proceeding fail to list MCT Corp. and disclose its revenues.
Instead, they leave it up to the FCC and Petitioners to possibly connect the dots, probably in
hopes that this fact would go unnoticed. This is because MCT Corp., as Petitioners show herein
and as they showed in their original petition to deny in the 309 Proceeding, was making millions
of dollars a year in revenues during the relevant period and would, by itself, have completely
disqualified MCLM from any bidding credit in Auction No. 61. This is further clear evidence of
fraud, lack of candor and deliberate misrepresentation by MCLM and Sandra DePriest. They
knew MCT Corp. had to be disclosed (Mrs. DePriest, as Mr. DePriest’s wife, clearly had to have
known he was a Director of MCT Corp. and that it was making money), but they still did not do
so. This shows lack of required character and fitness to hold any FCC license.
12

4. Mobex is an Affiliate--a Controlled Entity--of MCLM,
and, Nextel Was an Affiliate of Mobex and thus of MCLM
Petitioners previously presented facts and law with regard to this subsection’s topic
(including that MLCM controlled Mobex [the various “Mobex” entities] prior to and after
Auction 61, and Mobex had assets and income prior to Auction 61), and provide additional
information here.
Admissions and disclosures in the 19 Pages further show, along with what Petitioners
have already provided to the FCC, including but not limited to the WCB Proceeding information,
Section 2 above, Attachment 2 hereto and the FCC’s own rules that Mobex Network Services,
LLC, and its parent, controlling entity Mobex Communications, Inc., which was in operation
during the relevant period and controlled active companies, (together, “Mobex”) are clearly
affiliates of MCLM.
In a letter from the USAC to Dennis Brown, the USAC says that “MOBEX
Communications, Inc. is the holding company for six companies with active Form 499 Filer
Identification Numbers (Filer IDs) that have not filed Form 499s since 2003.”12
At no time has MCLM admitted to Mobex as its affiliate including in the original Section
1.41 Request proceeding that Petitioners filed before commencement of Auction No. 61, during
the entire 309 Proceeding, and now the 308 Proceeding. That is further fraud.
The 19 Pages contains a May 8, 2006 letter from Dennis Brown, legal counsel for
MCLM and Mobex (the “MCLM Refund Letter”).13 That letters states:
12
See Letter dated June 30, 2006 from Jeffrey Mitchell, Associate General Counsel, Office of
General Counsel, Universal Service Administrative Company, to Dennis C. Brown re: Demand
for Refund Waterway Communications System, LLC and Mobex Network Services, LLC at
page 2. (the “USAC Letter”).
13
See Letter dated May 8, 2006 from Dennis Brown, legal counsel to Watercom, Mobex and
MCLM, to Universal Service Administrative Company re: Demand for Refund…
13

On behalf of Watercom, Mobex and MC/LM, I hereby demand a refund of
unauthorized charges made by and paid to Universal Service Company (USAC)
in the amount of $1,301,230.00.
….
The Watercom radio system assets were assigned to Mobex and were operated by
Mobex until 2006 when all Mobex assets were acquired by MC/LM. Watercom,
Mobex, and MC/LM’s radio communications service has, at all times, been
limited to the provision of Maritime Radio Services under Federal
Communications Commission authorizations for Automated Maritime
Telecommunications Systems.
….
For all the foregoing reasons, Watercom and Mobex demand refund of the
unauthorized charges in the amount of $1,301,230.00. Because the assets
formerly held by Watercom and by Mobex are now held by MC/LM, and
pursuant to the asset purchase agreement between Mobex and MC/LM, MC/LM
is entitled to receive all refunds to which Mobex has a right, Watercom and
Mobex request that the refund payment be made to MC/LM.
The 19 Pages also contain a letter from John Reardon, as President of MCLM, to the
USAC providing information on Mobex and Watercom and stating, “Over the past weeks, I have
worked with our personnel in our network operations center to gather information to respond to
you request; I hope this response is helpful.” (the “Reardon Letter”)14
The Reardon Letter shows that Mobex is an affiliate of MCLM for several reasons
including because (1) the Reardon Letter is a response to an FCC letter of inquiry to Mobex
regarding Mobex’s past operations, but yet it is MCLM and its President, John Reardon, who are
replying to the FCC for Mobex (this shows operation of Mobex since only Mobex can respond
for itself unless MCLM is controlling it), (2) John Reardon is both an officer of MCLM and
Mobex, which creates affiliation under common management, operations, etc. (see below for
discussion of this and applicable rule Section 1.2110), (3) the Reardon Letter is addressed from
MCLM and Mr. Reardon as its President and talks about “our personnel in our network
operations center” getting the information to respond to the FCC’s inquiry concerning Mobex. It
does not mention anything about contacting Mobex to get the information, but mentions
14
See Letter dated August 14, 2006 from John Reardon, President MCLM, LLC, to Jeffrey A.
Mitchell, Associate General Counsel, Universal Service Administrative Company re: Letter of
June 30, 2006 at page 1.
14

MCLM’s personnel and network operations center having that Mobex information. Thus,
MCLM, contrary to its assertions in pleading before the FCC, is clearly running the operations of
Mobex and holds all of its records and is able to respond on behalf of Mobex. (Again, see also
the previously submitted evidence on this subject.)
Mobex is an affiliate of MCLM even if MCLM only obtained the site-based AMTS
licenses of Mobex, which is the MCLM position stated in the 309 Proceeding. However, in
addition, a further affiliation is shown which both (1) further demonstrates that Mobex is a
predecessor-in-interest of MCLM and (2) Mobex has been maintained (and fully controlled) by
MCLM as an operating entity which is another form of affiliation: MCLM owns and operates
Mobex through the relevant auction period.
In this regard, the following are some of the relevant facts, in addition to those already
presented in the 309 Proceeding. With regard to the MCLM Refund Letter at Exhibit 1, (1) it
shows that, as noted above, MCLM obtained not only the site-based AMTS licenses of Mobex
but also its others assets and operations. The operations by Mobex, or at minimum for the
benefit of MCLM, are shown in Exhibit 1, including because MCLM claims the right to a refund
of a portion of Mobex’s operating cash paid to USAC (and the USAC and FCC appear to have
accepted MCLM’s assertion that it had a right to demand a refund without requiring MCLM to
provide proof of such a right). That portion of Mobex revenues, which is stated as
approximately $1.3 million for a several year period, demonstrates that Mobex (including the
Watercom division) had some order of magnitude greater attributable gross revenues in the
relevant period. The FCC of course has the details of that, even if it would not disclose those to
SSF in its FOIA request, FOIA Control No. 2009-089. As shown above, the MCLM Refund
Letter mentions a certain asset purchase agreement between Mobex and MCLM. A full copy of
that agreement should be provided in the 308 Proceeding and related 309 Proceeding.
Also, see below for other reasons why Mobex is an affiliate of MCLM.
15

In addition, See Exhibit 12: Nextel is an affiliate of Mobex in the relevant years before
Auction 61, and since Mobex was controlled by MCLM, Nextel is an affiliate of MCLM. This is
one further affiliate never disclosed as required by MCLM. Some of the margin notes in the
Exhibit 12 added by Petitioners also show that Mobex too strategic funding and relationship with
Nextel to build AMTS stations after their construction deadline, which violates FCC rules since
those stations automatically terminated when not constructed by that deadline.
5. John Reardon Is an Officer of MCLM,

and Failure to Disclose Information
MCLM at page 2 of its response to the 3 Letters states the following:
“Officers and Directors: At all times since the formation of MC/LM, I have been
the sole officer and director of MC/LM. On several promissory notes, Ms.
Belinda Hudson signed the notes as Treasurer, but that was an honorary
title….Mr. DePriest has occasionally been asked to serve as a manager/agent to
conduct certain aspects of the business of MC/LM….Mr. John Reardon serves as
the CEO.”
Sandra DePriest at first makes an absolute, affirmative statement she has been the sole
officer of MCLM and then completely contradicts it a few sentences later by admitting that John
Reardon is the CEO of MCLM and thus an officer (CEO stands for Chief Executive Officer, but
maybe she did not realize this since she has only been an attorney and director of several
companies with her husband), that Ms. Hudson has signed as Treasurer and that Mr. DePriest has
been the Manager. (Section 2 has already discussed the importance of these admissions, the
facts that Petitioners provided to show the actual officers and directors of MCLM (see e.g. the
court case documents in the New Recon involving Mr. DePriest and MCLM) and the legal
analysis of the meaning of terms.) Apparently, terms and titles mean what The Reverend Sandra
DePriest wants them to mean at any given moment. Although she wrote as a Reverend in her
response to the FCC, which may mean she works in mysterious ways, her statements and
positions are beyond comprehension. Sandra DePriest seems to be making assertions purely on
belief and not on facts.
16

In addition, her responses are further contradicted by the Reardon Letter, on MCLM
letterhead, that was signed by John Reardon as the President of MCLM in 2006. At no time did
Mrs. DePriest or Mr. Reardon admit to Mr. Reardon being an officer in the 309 Proceeding.
Instead, MCLM continued to adamantly state that Mrs. DePriest has always been the sole officer
and director. This is further evidence of lack of candor by MCLM, Sandra DePriest and John
Reardon. Since Mr. Reardon obviously has information relevant to the 308 Proceeding and 309
Proceeding, the FCC should request all documents and information that he has or knows of
regarding MCLM, the DePriests, its affiliates, revenues, etc. and his role in MCLM and Mobex.
He cannot be deemed to have provided any information he has in any filings of MCLM in the 309
and 308 Proceedings since MCLM represented, and still represents, to the FCC under oath that
Sandra DePriest is MCLM’s sole officer (and owner).
Also, Mr. Reardon being an officer of MCLM is additional reason why Mobex is
unquestionably an affiliate of MCLM in the 309 (and related aspects of the 308) Proceeding.
Mr. Reardon is the CEO of Mobex (including its parent company Mobex Communications, Inc.
that still exists) and it shows that MCLM took over Mobex since it retained the same
management in Mr. Reardon, which is another indication of affiliation under Section 1.2110, and
had the authority to respond to the FCC on behalf of Mobex.
Since MCLM controlled Mobex, the affiliates of the officers directors in Mobex along
with those in MCLM, are affiliates of MCLM. That includes affiliates of John Reardon, Mr.
Mike Monier and others that were officers and directors in Mobex. As the record in this 309
Proceeding (and in FCC files otherwise) show, there were many “Mobex” companies, and they
in turn had affiliates including via “management agreements” with local two-way radio dealers
operating some of the Mobex site-based AMTS stations and Motorola that was also affiliated in
those operations. (The FCC auction DE “affiliate” rules specifically explains that such
“management agreements” cause affiliation.)
17

Also in this regard, John Reardon is also the CEO of Critical RF, Inc., which means that
Critical RF, Inc. is also an affiliate of MCLM’s and had to be disclosed and its attributable gross
revenues provided, to the extent it existed prior to the year of Auction 61, 2005 (see Exhibit 9
hereto). (Based on responses from MCLM and others in the 308 Proceeding, as discussed in part
in Exhibit
Further, Petitioners note that MCLM and Mrs. DePriest failed to provide the “promissory
notes” that Ms. Hudson signed as Treasurer. Thus, they are failing to respond to the FCC’s
requests for such information. (on this matter, but also many other matters in the Section 308 3
Letters).
6. MCLM Admission of Failure to Disclose

Significant Attributable Gross Revenues of MCLM Affiliates
In MCLM’s and Sandra DePriest’s response to the 308 Proceeding, MCLM admits to
substantial gross revenues of MedCom Development Corporation, Bravo Communications, Inc.,
Charisma Communications, Inc. and Golden Triangle Radio, Inc. in the relevant period, even
though they had previously informed the FCC that they did not have any revenues. MCLM tries
to characterize these revenues as de minimis or overlooked. They clearly are not (by any stretch
of that term) and the applicable FCC rules do not have any de minimis exception, and it is not
believable that they could have been overlooked since the entities have to do tax returns each
year and Mr. DePriest controls these entities.15
15
MCLM suggests for Medcom that some of the revenues listed were for compensation for past
expenses; however, at page 2 of the MCLM response to the 308 Proceeding, MCLM admits that
these expenses were actually “Accrued management fees” “paid to MedCom Development
Corporation in 2002 and 2003 by MCT Investors, L.P.”. Payments of fees for services are not
expenses of Medcom, they are income. MCLM knows this and that is why it lists them, yet it
still tries to suggest some bogus reason for not listing these significant amounts. That is because
it is once again trying to divert attention from the fact that Mr. DePriest, the controller of
Medcom, and Mrs. DePriest, his wife, knowingly hid from the FCC tens to hundreds of millions
of dollars in attributable gross revenues for MCLM. They are only now, at this late date, finally
admitting to some of it, but not all (see MCT Corp. discussion herein).
18

MCLM also revises the past gross revenues it listed for Maritel by over $2 million
dollars. It is not believable that MCLM could have been that far off on Maritel’s revenues and
this warrants further investigation—including a full audit-- because it indicates that MCLM and
Maritel may be colluding to now show less revenues. In any case, at this point after all of the
prima facie evidence presented by Petitioners and admissions by MCLM, to have any proper
proceeding, the FCC must request tax documents and other documentation of the gross revenues
of MCLM and all of MCLM’s affiliates and of other relevant evidence.16 (There is
overwhelming evidence already in the records to warrant full disqualification from Auction 61,
and to find lack of character and fitness to hold any FCC license, by the Depriests, MCLM,
WPV, and Maritel—but the FCC should conduct said investigation for reasons of additional
sanctions, and for purposes of referral for criminal prosecution.) Obviously, the FCC cannot rely
upon MCLM’s representations, but must have actual documentation of them, which can be
obtained in part from IRS tax returns.
16
For example, the FCC should obtain copies of tax returns to ensure that it is getting accurate
and complete filed copies. It should also submit a motion to unseal the record (or, at least, to
provide relevant documentation to the FCC under a protective order) in the Mississippi Court in
the case Petitioners previously cited in the 309 and 308 Proceedings, that Donald Depriest’s
attorney sealed after the trial: the reasons for that are explained previously by Petitioners.
19

7. Relevance to 308 Proceeding,
And FCC Should Seek and Require Other Needed Information
As Petitioners previously informed the FCC in the 308 Proceeding and 309 Proceeding,
Petitioners are obtaining additional relevant documents from third parties including government
entities. Petitioners have obtained some response to date. At this time, for reasons given above,
Petitioners are presenting some of the documents under their continued investigations that they
have thus far received and have had the opportunity to initially review for relevance. It takes
considerable time and effort by Petitioners to get records from government and other entities.
Petitioners will be providing more documents in the future.
However (as also partly suggested elsewhere herein, including the citation in the
Introduction from FCC 85 648), the FCC, on its own, should obtain from the original sources
copies of all relevant documents not yet provided by MCLM and affiliates and Petitioners,
including court-case documents involving Mr. DePriest, MCLM and their affiliates including,
but not limited to, those listed in the New Recon from which Petitioners have already obtained
and provided relevant admissions, agreements, disclosures, etc. regarding the ownership and
control and financing of MCLM. The MCLM response to the 308 Proceeding 3 Letters
discusses some of the documents Petitioners presented from those cases, but MCLM deliberately
withheld from the FCC any of the court case documents or the agreements and signed documents
discussed and mentioned in those cases that involved Mr. DePriest and MCLM. Further, there
are numerous agreements and documents referenced in those court cases relevant to the 308 and
309 Proceedings that Petitioners have not yet obtained and that MCLM has not provided
including agreements between Donald DePriest and other individuals in which Mr. DePriest
grants ownership interest in MCLM, and settlement agreements to settle cases between MCLM,
Mr. DePriest and other parties (e.g. MCLM and Mr. DePriest arrived at a settlement agreement
with Mr. Phillips in one of the court cases).
20

Also, the FCC should require that MCLM and Mr. and Mrs. DePriest inform it of any other
litigation that has been or has been noticed to be filed against MCLM and the DePriests with
respect to MCLM, Maritel and WPV or any matter involving MCLM and its licenses and that
contains relevant information to the 308 Proceeding and 309 Proceeding. The FCC has the
power to and a duty to open the court cases that Mr. DePriest and MCLM have gotten sealed. It
must proceed to do so and obtain the documents since those cases, as shown by Petitioenrs,
clearly contain relevant information of decisional significance.
In addition, the FCC should request and require that all tax returns (powers the FCC has) be
provided for MCLM and all of the affiliates it has admitted to so far since MCLM’s word clearly
cannot be relied upon with respect to accurate disclosure of gross revenues due to the repeated,
willful misrepresentations it has committed in the 308 Proceeding and 309 Proceeding, including
as evidenced by the MCLM and DePriests responses to the 3 Letters (admissions to numerous
additional affiliates and attributable gross revenues, failure to list MCT Corp.’s gross revenues
even though MCLM admits Donald DePriest is a Director of it, etc.) and their responses to the
previous FCC inquires for more information in the 309 Proceeding in which MCLM admitted to
numerous other affiliates and attributable gross revenues it did not report, but where it previously
had adamantly asserted to the FCC that there were no other affiliates or attributable gross
revenues (it has been solely due to Petitioners’ efforts, including prior to the commencement of
Auction No. 61, that the FCC was made aware of MCLM’s failure to fully disclose its affiliates
and their gross revenues that resulted in a change of MCLM’s business size and thus ultimately,
once the FCC realizes it must enforce Section 1.2105 and grant Petitioners appeals, MCLM’s
disqualification from Auction No. 61). 17 The FCC should also request copies from the Internal
17
The Commission has explained that “As we noted in the Character Policy Statement, we are
authorized to treat even the most insignificant misrepresentations as serious.” Applications of
PCS 2000, L.P., Notice of Apparent Liability for Forfeiture, 12 FCC Rcd 1703 (1997) at ¶ 47.
See also 47 C.F.R. § 1.17 (providing that no person, in any investigation or adjudicatory
21

Revenue Service to verify that MCLM and the DePriests have provided legitimate, accurate
copies of all returns.18
8. Appended Documents, and Certain Comments Thereupon
Below is a list of appended documents:
- Some may be separately emailed and filed in these 308 and 309 Proceedings.
- In some exhibits Petitioners have made certain comments and notes in text boxes in the
margin and certain highlights and outlines in red-outlined rectangles.
- As noted above, (i) these attachments and related notes are in addition to--and can be
properly understood by review along with--Petitioners’ previously submitted information in the
309 and 308 Proceedings, and (ii) further relevant information will be submitted in the near
future.
NOTE: In addition to attachments listed below, Petitioners intend to attach when submitting this
filing, or soon thereafter, additional materials: various UCC filings by MCLM, Donald Depriest,
Maritel, and other affiliates. Also, as indicated above, other materials are being obtained and
will be submitted once obtained.
Attachments 1, 2 and 3.
proceeding, shall “intentionally provide material factual information that is incorrect or

intentionally omit material information that is necessary to prevent any material factual statement
that is made from being incorrect or misleading”). In many cases, the Commission has
disqualified companies from holding FCC authorizations. See, e.g., Radio Carrollton,
Memorandum Opinion and Order, 69 F.C.C.2d 1139 (1978) at ¶¶ 11,17 (“Thorburn's testimony
on this matter before the Commission evinces an unmistakeable lack of candor bordering on
deception, conduct the Commission cannot and will not tolerate. . . . Through this conduct,
Faulkner has demonstrated that it does not possess the qualifications to be a licensee.
Accordingly, we conclude that the public interest would not be served by a renewal of Faulkner's
license.”) The Commission has found that “[o]nce we find that we cannot rely on a licensee’s
representations to us, the only suitable penalty is revocation of the license.” Sea Island, 60
F.C.C.2d at 157 (revoking license because the owner and officers of the licensee company made
deliberate misrepresentations and other misleading and deceptive statements to the Commission
in order to conceal improper financial practices); RKO General, Inc., Decision, 78 F.C.C.2d 1
(1980), aff’d, 670 F.2d 215 (D.C. Cir. 1981) (denying an application based upon applicant’s lack
of candor in proceedings before the FCC).
18
In that regard, as Petitioners demonstrated in preceding pleadings in these matters, the IRS
placed a one-million-plus dollar lien or levy on Donald DePriest (as publicly reported in
newspapers, including a copy of said IRS document): the FCC should seek to find out the status
of Mr. Depriest’s compliance with IRS reporting and payment obligations, since that reflects
upon the accuracy of his IRS returns and also may otherwise provide financial information
relevant to the Section 308 and 309 Proceedings.
22

Attachments 1 and 2 are discussed in Sections 1 and 2 above. Attachment 3 is
discussed in Section 11 below.
Exhibit 1
The 19 Pages of documents released by the FCC to SSF under FOIA Control No.
2009-089.
See the above discussion under Section 3 regarding Mobex being an affiliate of MCLM,
as to the significance of certain documents contained in the 19 Pages, and also see Section 4
regarding John Reardon being an officer of MCLM (signing as President in a letter to the FCC)
when MCLM maintains that Sandra DePriest has always been the sole officer and director of
MCLM.
Petitioners make clear that SSF has a pending application for review regarding the FCC’s
decision not to release additional documents regarding the Mobex and MCLM Forms 499 and
Exhibit _ . As indicated herein, Petitioner contest certain redaction, especially the redaction that
was not entirely effective, but attempted to cover up words that were not possibly confidential
but, by covering, changed the meaning to hide rule violations.
In the 19 Pages, the Reardon Letter (at stated above, it is from MCLM on its letterhead
and signed by John Reardon as MCLM’s President responding for Mobex), says that Mobex did
not have interconnect for most of its AMTS site-based stations and that they did not pay fees to
the USAC because its customers were not interconnected.
At page 3 of the Reardon Letter, Mr. Reardon writes, as President of MCLM, to the
USAC saying [the words in brackets [ ] are ones the FCC attempted to redact in the 19 Pages, but
that can be read through the black marks and that do not appear to be subject to FOIA exemption
in any case] [underlining added for emphasis]:
You also wondered why Mobex charged [nothing] in 2005 for USF. That is
because mobile satellite companies took the majority of the Watercom business in
the years 2004 and early 2005. Mobex pulled down most of its interconnection
POTS lines and restricted services to cut costs. Mobex billed customers a flat
rate, and [did not charge] USF. Instead, Mobex realized that its revenue was de
minimus under any USF standards and that customers [were not] interconnected.
(i) First, the above statements appear to indicate that Mobex, and now MCLM, has failed
to charge and pay USF fees for its CMRS AMTS operations. The FCC must investigate this
further and determine if Mobex violated FCC rules by not paying USF fees for its operations and
if MCLM continues to do the same and what amounts are due (otherwise MCLM and Mobex are
being allowed to outside of their licensed authorizations and being permitted a competitive
advantage over competitors since they don’t have to pay fees that other CMRS operators must).
(ii) Second, this response to the FCC by Mr. Reardon lacks candor and is misleading since Mr.
Reardon, an attorney by background and involved with Mobex and AMTS for years, knew that
AMTS was CMRS by nature and that AMTS stations had to provide interconnect and pay into
the Universal Service Fund. (iii) Third, it lacks candor because Mr. Reardon knows that Mobex
could not “realize” anything because Mobex, as the licensee, had to know what it was doing and
what revenues it had and that its operations were subject, per the AMTS rules, to USF
23

contributions and other fees. The FCC should investigate Mr. Reardon and his statements for
any misrepresentations and lack of candor and for his failure to admit to the FCC that Mobex is
MCLM’s affiliate and that he is MCLM’s President and thus an officer.
In the Reardon Letter, Mr. Reardon admits to the FCC that Mobex’s, now MCLM’s,
customers were not interconnected. Mobex (and MCLM continues) requested a refund of USF
fees (see the WCB Proceeding) arguing that they provided PMRS and thus they were not subject
to USF. That means the following: (1) Mobex never constructed those AMTS stations because
AMTS is CMRS which requires interconnection. Therefore, those stations auto-terminated
without specific Commission action at the construction deadline.19 Thus, both Mobex and
MCLM committed fraud multiple times thereafter (including (a) in the AMTS 2004 “audits”
when Mobex stated that those stations were timely constructed, (b) in pleadings before the FCC
in which Mobex argued those stations were constructed in order to get a larger interference
protection, (c) in the assignment application between Mobex and MCLM involving the auto-
terminated AMTS stations (laundering), (d) and in statements in response to the AMTS auction
“procedures” notice for Auction No. 57 by telling the FCC how fully Mobex was encumbering
the geographic spectrum, etc. and (e) in the request for refund to the USAC in the WCB
Proceeding (it is fraudulent to ask for a refund of fees for stations that auto-terminated).
The 19 Pages also contains a November 29, 2007 letter from David Predmore, Acting
President (apparently of Mobex) to Mr. Fred Theobald, 499 Data Collection Agent (the “Mobex
Letter”) that states, “We expect to wrap up the remaining state tax matter and dissolve Mobex
this calendar year or early 2008”. This Mobex Letter is further evidence of lack of candor and
fraud committed against the FCC since, per State of Delaware records obtained by Petitioners
(see Exhibit 7 hereto), Mobex Network Services LLC was cancelled on December 21, 2006 and
did not exist from that point going forward. Mr. Predmore does not define the “we”, so the FCC
must request this information of him. However, from the Reardon Letter, it can be assumed that
MCLM was one of the “we”. In addition, Mobex and MCLM, with the same legal counsel, have
opposed Petitioners in both the NJ Court Proceeding and the California court proceedings. This
is impossible for Mobex since it did not exist. It can only mean that MCLM is taking up the
defense of Mobex since, as the facts show, it took over operation of Mobex.
The Mobex Letter states:
In May 2005, Mobex signed an asset sale agreement with Maritime

Communications/Land Mobile, LLC. A significant portion of the purchase price
was advanced to fund MNS’ operations through the closing, thereby protecting its
main asset, FCC licenses, by keeping them constructed and operating. The
management team successfully closed this sale on December 30, 2005. The
proceeds of the sale have gone to paying off substantial debt due to existing,
mostly secured, creditors of Mobex Network Services, LLC. The balance of
proceeds is held in escrow with a law firm in order to satisfy state tax obligations
and other contingent liabilities, including an IRS audit.
19
See e.g. Letter dated December 8, 2009 from Scot Stone, Deputy Chief, Mobility Division,
Wireless Telecommunications Bureau to Pappammal Kurian, Spectrum Wireless LLC, DA 09-
2565, that refers to 47 C.F.R. § 1.955(a)(2), (3).
24

These statements show that Mobex was using MCLM’s purchase funds to keep its
licenses operating and constructed. This is further evidence of affiliation.
Also, Mobex says it has substantial debt that is “mostly secured” and that its “main asset”
is its FCC licenses. Thus, it appears that Mobex used its FCC licenses to secure the debt since
they were its principle asset with which to secure debt. FCC licenses cannot be used to secure
debt and if the creditors had rights to the licenses or a substantial portion of them, then it means
that Mobex had to disclose them and did not. This would make the assignment application of the
AMTS incumbent stations from Mobex to MCLM defective. The FCC must investigate this
since control in a licensee is fundamental and it is further reason the assignment of incumbent
stations needs to be rescinded.
Petitioners have already shown with facts that Mobex asserts it was operating its stations
as PMRS, which was illegal and unauthorized operation since AMTS is CMRS. Clearly,
MCLM advanced substantial money to Mobex in order for Mobex to maintain the unauthorized,
auto-terminated stations so that MCLM could use them to keep out competition at the upcoming
Auction No. 61. That is why Mobex and MCLM did not close until December 31, 2005. This is
further indication of laundering.
At minimum, the Mobex Letter reveals further false statements to the FCC by Mobex
during a period of time when it did not exist, but during which time MCLM was asserting rights
to Mobex’s USF funds, was responding to the FCC’s inquiries regarding Mobex (see Reardon
Letter) and telling the FCC that it was Mobex’s successor-in-interest. The FCC should
investigate the false statements by Mobex and Mr. Predmore and determine who Mr. Predmore
meant by “we” and the role MCLM has played. The FCC should also look into the “IRS audit”
that Mr. Predmore mentions to determine what Mobex was being audited for and if any of the
information provided in that audit is relevant to the 308 Proceeding and 309 Proceeding.
Exhibit 2
Communications Investments State of Mississippi Annual Reports for years 2005,

2006 and 2007.
These are copies of the ComI annual reports filed with the State of Mississippi.
Petitioners obtained these off of the State of Mississippi’s website at:
https://business.sos.state.ms.us/corp/soskb/csearch.asp .
As can be seen from these reports, Donald DePriest has been listed as the President and
sole Director of ComI since 2005. Sandra DePriest falsely asserted in the MCLM response to
the 3 Letters inquiry that listing of Mr. DePriest as the President of ComI on the annual reports
was an “oversight”. However, both the 2006 and 2007 ComI annual reports list Donald DePriest
as the President and sole Director of ComI and they are signed by Sandra DePriest herself, as
Secretary of ComI, stating, “This report has been examined by me and to the best of my
knowledge and belief, is true, correct, complete and currents as of this…” Mrs. DePriest
“examined” and signed the reports. Thus, it is impossible for them to have been oversights. Her
response to the FCC reeks of lack of candor and misrepresentation.
These ComI annual reports clearly show that Donald DePriest is an officer and Director
of ComI as signed and certified by Sandra DePriest, which in turn means he controls MCLM,
which is a disqualifying change of control. These facts are sufficient alone to require immediate
25

disqualification of MCLM. The FCC should sanction Mrs. DePriest and her counsel for lack of
candor and misrepresentation. At minimum, these documents show that the FCC cannot rely on
a single representation of fact made by Mrs. DePriest, MCLM and Mr. Brown. As Petitioners
have shown, Mr. Brown has a history of similar actions before the FCC.
Exhibit 3
MCT Corp. – Additional Relevant Documents, Including Relating to its

Attributable Gross Revenues.
These are noted above. Additional notes are in margin notes in this Exhibit. There are
multiple documents in this one Exhibit 3.
Exhibit 4
S/RJW Partnership L.P. State of Delaware Amendment to the Certificate of Limited

Partnership filed 8/24/2005 per State of Delaware records.
This is a copy of the filing obtained by Petitioners from the State of Delaware (the “Delaware
Filed Copy”). As can be seen in comparing the two, the copy provided by MCLM and Mrs.
DePriest as “Exhibit 5” to the MCLM response to the 3 Letters (the “MCLM Copy”) is not the
same as the copy filed with the State of Delaware. In fact the two documents have entirely
different signatures for Sandra DePriest.
Also, the Delaware Filed Copy has a filing date stamped on it of 8/24/2005, which is after the
Form 175 deadline for Auction No. 61 and after Auction No. 61 had concluded, while the
MCLM Copy conveniently lists no filing date on it. Petitioners have previously shown, with
facts in state records, in the 309 Proceeding that prior to the Delaware Filed Copy being filed that
MedCom Development Corporation, owned and controlled by Donald DePriest, was the General
Partner in S/RJW Partnership L.P. and thus it controlled MCLM and not ComI, which show
MCLM’s assertions in its response to the 3 Letters that “At no time has Mr. DePriest had an
ownership interest in S/RJW” is false.
Further, the Delaware Filed Copy has an execution date written in on it of February 15, 2005,
while the MCLM Copy has an execution date listed of February 18, 2005. There is no
reasonable explanation, other than intent to deceive, for why MCLM and Sandra DePriest failed
to provide to the FCC a copy of the Delaware Filed Copy since Sandra DePriest alleges to have
100% control and ownership of S/RJW Partnership L.P. and ComI and to have executed this
document.
Yet, MCLM in its response to the 3 Letters has provided a forgery (there is no way that
MCLM could have made a mistaken in not providing the Delaware Filed Copy on submission of
its response to the FCC; it could have requested an official, certified copy from the State of
Delaware).
Given this, the FCC clearly should not rely upon any documentation provided by MCLM as
being accurate or truthful, but should proceed to obtain all official records from state and
government entities itself.
26

The Delaware Filed Copy also conflicts with the MCLM statements at pages 2 and 8 of its
response to the 3 Letters and the exhibits 2, 3, 6 and 7 in its response to the 3 Letters because in
those statements and exhibits Mr. DePriest and Mrs. DePriest say ComI took over for MedCom
as General Partner of S/RJW on 2/18/2005 and that Mr. DePriest resigned as President and
Director of ComI on 2/18/05, but the Delaware Filed Copy says all of this actually occurred on
2/15/2005 and that Sandra DePriest was already, per the Delaware Filed Copy, the President of
ComI on 2/15/05 as evidenced by her signature on the Delaware Filed Copy. Sandra
DePriest’s/MCLM’s response to the 3 Letters says at page 2,
The general partner in S/RJW is Communications Investments, Inc. as of Feb. 18,

2009. On that same day, I, Sandra DePriest, was elected President of
S/RJW…The State of Delaware Amendment to the Certificate of Limited
Partnership is attached as Exhibit 5
And at page 8,
Prior to February 18, 2005, Mr. DePriest was the sole owner and President of CII
[ComI]….I began serving as the sole officer and director of CII from February 18,
2005.
These are deliberate false statements including because the Delaware Filed Copy shows
Sandra DePriest signed as President of ComI on February 15, 2005, 3 days before she was
allegedly made the sole director and officer of ComI and that MCLM’s exhibit 5 is not actually
the document filed with Delaware. The Delaware Filed Copy has been on file with the State of
Delaware since August 24, 2005 and at no time since then has it been amended or corrected by
MCLM.
The MCLM exhibits 2, 3, 6 and 7 are legally invalid. The Delaware Filed Copy is the
official, legal copy and was required to be filed and it says 2/15/05 as the execution date
(although it was only filed on 8/24/05).
The MCLM exhibits 2, 3, 6 and 7 contain no stamp or other certification of authenticity to

say that the actions they evidence occurred 3 days later than per the Delaware Filed Copy.
The MCLM exhibits 2, 3, 6 and 7 are invalid because they conflict with the official state
filing, the Delaware Filed Copy.
In addition, there is no indication that any of the MCLM exhibits 2, 3, 6 and 7 were filed with
the State of Delaware or State of Mississippi, and they could not be because they conflict with
the Delaware Filed Copy.
Thus, these are not authentic documents and cannot be the acts of these legal entities
(forgeries or spurious or the like, herein “spurious”). Alternatively, these are not valid, legal
entities, S/RJW and ComI, because they are being operated contrary to State of Delaware and
State of Mississippi law respectively.
Part of this operation, contrary to Delaware and Mississippi state law, are actions being taken
before the FCC using these manufactured, legally invalid spurious documents to maintain the
primary assets of ComI and S/RJW, and ultimately MCLM.
27

In addition, according to Sandra DePriest, ComI and S/RJW, even though they were listed as
affiliate of MCLM, do not disclose any revenues, which is not possible since any legal entity
must at least have a bank account and certain annual expenses and some amount of accrued bank
interest.
The DePriests have dozens of companies, contracts, government filings, etc. in which they
take contradictory positions on who is in control (including who are the officers and directors
and owners of their primary companies and companies allegedly behind and owning the primary
companies). When someone sees a document that is a forgery or otherwise spurious versus the
valid government document, there is some purpose behind it. In this case, even if the text is
identical, other than the date of execution, and even if it is not immediately apparent what the
relevance is to the 308 Proceeding, there could be many other reasons that MCLM had to use a
spurious document in this case to cover some other purpose, such as a contract it signed as of a
certain date, or testimony in court, or an insurance coverage period, etc.
But this is relevant to the 308 Proceeding because this is spurious documentation that goes to
the candor and character and fitness of MCLM. It’s not simply the one-time illegal act, but it is
fraud to present the spurious documentation to the FCC to extract public benefits (FCC licensing
rights, and to escape sanctions).
It is also abuse of process since MCLM is using the 308 Proceeding with respect to this
particular document to protect some other contract or matter where that date must be important
to protect, or that is was not Sandra DePriest who signed the DE version, or the fact that the
Delaware Filed Copy does not agree with the MCLM exhibits 2, 3, 6 and 7 to the MCLM
response to the 3 Letters as noted above.
Exhibit 5
UCC Filings of MCLM, Mobex Network Services LLC, Mobex Communications, WPV,
and Maritel.
These documents are self-explanatory, and show among other things, affiliates of these
entities (i.e. parties who had control or the power to control them), and that FCC licenses were
used as collateral with disclosing that to the FCC. These documents were obtained from the State
of Delaware and show that both Mobex and MCLM have used their FCC licenses as collateral
for loans. Besides being impermissible (FCC licenses cannot be used as collateral), it means that
the creditors have interest and rights in the Mobex and MCLM licenses and that they have the
power to control them and needed to be listed as affiliates on MCLM’s Form 175 and 601.
Exhibit 6
Documents regarding MCT Corp.--
Some regarding subscribers of the foreign wireless companies owned or controlled

by MCT Corporation (the subscribers indicate gross revenues). Also, a transcript of an
radio-show interview of John Reardon discussing Donald DePriest and Donald DePriest’s
sale of one of these foreign wireless companies for a certain stated millions of dollars.
28

Exhibit 7
Mobex Network Services, LLC Delaware documents.
These are the Mobex Network Services, LLC documents filed with the State of
Delaware. The Certificate of Cancellation shows that Mobex was cancelled as of December 21,
2006; however, it continued to tell the FCC and state and Federal court that it still existed (see
above). This is fraud and should be investigated, especially since the facts indicate that MCLM
is running Mobex and since Mobex is an affiliate of MCLM.
Exhibit 8
UCC Filings of Donald DePriest and Sandra DePriest and Maritel from states of
Mississippi and Tennessee. PETITIONERS HAVE REQUESTED THESE AND WILL
PROVIDE COPIES OF THEM AND ANALYSIS OF THEIR RELEVANCE AS SOON
AS THEY ARE RECEIVED.
Exhibit 9
Public domain documents regarding Critical RF, Inc. It is an affiliate of both John
Reardon and Donald DePriest.
Exhibit 10
Delaware UCC filing for Sandra DePriest that shows she was involved with
Charisma Broadcasting Co. and in obtaining debt for that company in 2002, which belies
her response to the FCC’s 308 Proceeding in which she asserted she had not been involved
in much business at all since 1996.
Exhibit 11
Documents showing that a certain Episcopal Church is an affiliate of Sandra

DePriest since she is an officer of head of one of its churches.
Attachment (i)
In the Matter of Policy Regarding Character Qualifications....and Procedure Relating to

Written Responses to Commission Inquiries and the Making of Misrepresentations to the
Commission by Permittees and Licensees. Report, Order, and Policy Statement, FCC 85 648.
Released: January 14, 1986. This contained excerpts and related materials. This deals with FCC
Section 308 investigations and related character qualification issues: both relevant to the subject
MCLM Sections 308-309 proceedings.
9. Additional Relevant Information
As indicated above, this Supplement One is not comprehensive, but due to actions
described in Section 1 above
29

10. Charisma Communications, Inc.—
Failure to Disclose Actual Ownership
The FCC should investigate the evidence from the New Recon (see e.g. New Recon at
Section 13 and Exhibits B and D) and in the court document records provided in the New Recon
and submitted to Mr. Tobias by Petitioners in the 308 Proceeding that indicates Donald DePriest
did not disclose the actual ownership in Charisma Communications, Inc. in order to avoid
disqualification of Charisma’s cellular applications and later its granted licenses.
MCLM responded to this evidence in its opposition to the New Recon and Petitioners are
replying here. Evidence of fraud is not time barred and should always be considered. See e.g.
Butterfield v. FCC, 99 U.S. App. D.C. 71; 237 F.2d 552 (1956) (“Butterfield”). Petitioners may
raise the noted new facts in this Supplement and the New Recon for the reasons given in
Butterfield v. FCC, where DC Circuit Court held:
….In these circumstances nothing in the language of sections 310(b) and 405
deprived the Commission of power to receive the new evidence and to reconsider
or redecide the case….
Delay in seeking reopening of the record is a factor to be weighed in the
exercise of the Commission's discretion. Here, however, it was excusable. The
only reason the appellants' effort to reopen was not made earlier in the
proceedings was that the new events which occasioned it were kept secret by
WJR for several months. 7 Such a circumstance would have called for reopening
the record even under the dissenting opinion in Enterprise. That opinion pointed
out that 'there was no concealment', because the successful applicant had
disclosed the option agreement a few days before the argument of the petition for
rehearing. Our dissenting brother added, however, that 'had it withheld the
information until after the (denial of the petition for rehearing) notwithstanding
the execution of the agreement (earlier), a very different situation might well be
said to have arisen. That is this case.
…. Moreover, appellants should be readmitted to the contest, even if that
would serve to prolong it. The new evidence here goes to the foundation of the
Commission's decision, so that refusal to reopen the record deprives appellants of
their rights as competing applicants….
…. The Commission will conduct further hearings on the question of
differences between WJR's original and modified proposals and will reconsider its
grant to WJR in the light of the differences thus disclosed.20 [Underlining added.
Footnotes deleted.]
20
Butterfield v. FCC, 99 U.S. App. D.C. 71; 237 F.2d 552 (1956),
30

Also see: (i) Re Beacon Broadcasting Corporation, FCC FCC96-66 (adopted 2/21/96):
reconsideration is appropriate where petitioner shows either material error or omission in original
order, or raises additional facts not known or not existing until after petitioner's last opportunity
to present such matters, and (ii) Re Armond J. Rolle (1971) 31 FCC2d 533: proceedings will be
remanded and reopened by newly discovered evidence relied on by petitioner that could not with
due diligence have been known at time of hearing, and if proven true, is substantially likely to
affect outcome of proceeding. These also apply in to the instant case.
As Petitioners noted in the New Recon, money from Charisma has funded the DePriests
business ventures including Maritel and MCLM. This is also reflected in other attachments
hereto including Exhibit on MCT, Exhibit 6.
Also, while the FCC should obtain these documents on its own, Petitioners intend to file
FOIA requests for all information that the FCC has in archived files on Charisma
Communications, Inc. and submit other FOIA and similar requests to government agencies to
obtain further information on Charisma and the involvement of Mr. DePriest, Mr. Cooper and
Mr. Phillips in Charisma and any other individuals or entities involved with Charisma as part of
their own investigation. If further evidence of wrongdoing is uncovered in that investigation by
Petitioners, it will be presented to the FCC and other relevant authorities.
11. MCLM, Mobex, DePriests’ & Associates. – Various Litigation
In this regard, see Attachment 3 hereto. Petitioners wish to make this point of the
extraordinary extent of cases filed against these related parties, many by major companies, as
well as by former or current employees and officers. The FCC, of course, can examine the
complaints and other pleadings and, in most all cases, the favorable decisions for plaintiffs or
admissions and settlements on behalf of plaintiffs.
31

If the FCC examines these, as it should, it will also find numerous cases where the
excuses of Donald DePriest and his companies are similar to the excuses Donald DePriest,
MCLM, Maritel and WPV gave in response to the 3 Letters and 309 Proceeding when they are
caught in making false and conflicting statements in violation of required actions under law, such
as “we didn’t know”, “we didn’t know we signed that”, “we forgot we did that”, etc. In some
cases the court would state in its decision that Mr. DePriest is clearly a sophisticated business
person and his excuses were not credible (e.g., see the highlighted Circuit Court case in
Attachment 3).
12. FCC Failure to Disclose Relevant Information

in 309 Proceeding Makes Orders and Actions Defective
While Petitioners respect the Section 309 Proceeding purpose and actions, still, to protect
their procedural rights, Petitioners state the following. If it was not for the PD and subsequent
appeals by Petitioners in the 309 Proceeding, the FCC’s Auctions Division perhaps could have
simply accepted MCLM’s false representations on its Forms 175 and 601 as to the officers (and
other matters). However, since Petitioners challenged the MCLM participation in Auction No.
61, first the Form 175 and then the Form 601, the FCC had to under Section 309 consider the
evidence Petitioners’ submitted that those representations were false and had to look into its own
records regarding those representations.
In that regard, the 19 Pages along with the WCB Proceeding and MCLM’s and Mobex’s
Forms 499-A reveal, among other things, that during the period in which the FCC has been
denying Petitioners’ pleadings in the 309 Proceeding and Petitioners’ pleadings against the
MCLM AMTS incumbent stations, the FCC has had information in its possession showing that
(1) MCLM’s statements that Sandra DePriest was the sole officer and director were false (see
e.g. the Reardon Letter in 2006—directed to the FCC by John Reardon as President of MCLM);
(2) that MCLM and Mobex have been operating their AMTS site-based licenses as PMRS,
32

which does not meet the FCC’s requirements for AMTS construction and operation; (3) that
MCLM and Mobex failed to pay fees to the USAC because they have asserted PMRS status, (4)
that MCLM and Mobex have reported they are not providing telecommunications services in all
of the states where they hold AMTS (see e.g. the past-filed MCLM and Mobex Forms 499-A that
do not list all the states), and (5) that Mobex is MCLM’s affiliate and predecessor-in-interest
and should have been listed on MCLM’s Auction No. 61 application as an affiliate and its
substantial gross revenues disclosed (see WCB Proceeding, MCLM statements that it is Mobex’s
successor-in-interest and has rights to past amounts paid by Mobex and Watercom to USAC for
USF fees, the Reardon Letter in which MCLM responds to an FCC inquiry letter about Mobex
and its operations, etc.).
This apparent withholding of relevant information from Petitioners in the 309 Proceeding
(information that supported Petitioners’ facts and arguments and reasons for dismissal of
MCLM, or at minimum, grant of a hearing under Section 309), whether or not intentional,
clearly makes the FCC’s decisions in the 309 Proceeding defective, notwithstanding all of the
other meritorious reasons that Petitioners have already given in their appeals in the 309
Proceeding as to why the FCC’s decisions were already defective. Under applicable law, the
FCC should rescind its orders in the 309 Proceeding and proceed to conduct a further full
investigation and hearing and provide Petitioners with full copies of all relevant records the FCC
holds regarding MCLM, Mobex and their affiliates, including, but not limited to, those items
noted above.
33

Respectfully,
/s/ Warren Havens

[Filed electronically. Signature on file.]
Warren Havens
Individually and
President of each other Petitioner:
Skybridge Spectrum Foundation
Environmentel LLC
(formerly known as, AMTS Consortium LLC)
Verde Systems LLC

(formerly known as, Telesaurus VPC LLC)
Each Petitioner:
2649 Benvenue Ave., Suites 2-6

Berkeley, CA 94704
Ph: 510-841-2220
Fx: 510-841-2226
March 9, 2010
34

Declaration
I, Warren Havens, as President of Petitioners, hereby declare, under penalty of perjury,
that the foregoing Supplement to Petition for Reconsideration Based on New Facts, including all
Exhibits and Attachments, was prepared pursuant to my direction and control and that all the
factual statements and representations contained herein are true and correct.
/s/ Warren Havens

[Submitted Electronically. Signature on File.]
____________________________________
Warren Havens
March 9, 2010
35

Certificate of Service
I, Warren C. Havens, certify that I have, on this, March 9, 2010, caused to be served, by
placing into the USPS mail system with first-class postage affixed, unless otherwise noted, a
printed copy of the foregoing Supplement to Petition for Reconsideration based on New Facts to
the following, as follows:
Mr. Dennis Brown is being provided a complete copy of the Supplement, with all
attachments and exhibits, via Federal Express Overnight delivery. All the other parties listed
here are being provided the Supplement’s main text only and can obtain a full copy including the
attachments and exhibits by doing one of the following: (1) downloading everything from the
FCC’s ULS under File No. 0002303355; or (2) (potentially) by entering into Google the
following search terms: “FCC 308 MCLM Supplement One” and then downloading everything
from www.scribd.com (this item ‘2’ is potential, but not yet effected).
Copies of the Supplement’s main text are provided via email to expedite receipt as well.
The service copies served by the US Postal Service (“USPS”) mail are being placed into
a USPS drop-box today, but if that is after the last time that said box’s contents are picked up by
a USPS employee for processing, said mail may not be processed and post marked by the USPS
until the next business day.
In addition to the FCC and the parties directly involved in the above-captioned matter,
the other entities listed below have been identified by Petitioners as involved in this matter in
either this or past pleadings filed by Petitioners in this or related FCC proceedings. In this
regard, see Appendix 2 to the New Recon.
1 -- MCLM and the DePriests
Dennis Brown
Counsel for Maritime and Mobex
8124 Cooke Court, Suite 201 Sandra DePriest
Manassas, VA 20109-7406 Donald DePriest
206 North 8th Street
Via FedEx Overnight
Columbus, MS 39701
and email to d.c.brown@att.net
2 – FCC
Office of Inspector General

Email to kent.nilsson@fcc.gov, Erica Myers
and jon.stover@fcc.gov Telecom Access Policy Division
Wireline Competition Bureau
Scot Stone Email to Erica.Myers@fcc.gov
Deputy Chief, PSCID
Email to: scot.stone@fcc.gov David Duarte
TelecomAccess Policy Division
Jeffery Tobias Wireline Competition Bureau
PSCID Email to David.Duarte@fcc.gov
Email to jeff.tobias@fcc.gov
Copy provided for purposes of Section 308
Proceeding and Section 309 Proceeding
36

3 -- Others Involved
and Who May Have Relevant Information
and Legal Duties to Provide it to the FCC: See Appendix 2 to New Recon)
Jason D. Smith MOTOROLA, INC. (GEMS)

President & CEO ATTN Stu Overby
MariTel, Inc. 1301 East Algonquin Road
4635 Church Rd., Suite 100 Schaumburg, IL 60196
Cumming, GA 30028-4084
And email to Stu.Overby@motorola.com
And email to jsmith@MariTelusa.com
Wiley Rein & Fielding LLP
Russell Fox Robert L Pettit , Esq
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Kurt E. DeSoto, Esq.
701 Pennsylvania Avenue, N.W., Suite 900 1776 K Street, NW
Washington, D.C., 20004-2608 Washington, DC 20006
And email to: rpettit@wrf.com
National Rural Telecommunications Cooperative
Attn: Jack Harvey
2121 Cooperative Way Big Rivers Electric Corporation (BREC)
Herndon, VA 20171 ATTN Randall Hooper
201 Third Street
And Email to jharvey@nrtc.org Henderson, KY 42419
Audrey P. Rasmussen (counsel to PSI) And email to rhooper@bigrivers.com )

Hall, Estill, Hardwick, Gable,
Golden & Nelson, P.C Hogan & Hartson LLP [*]
1120 20th Street, N.W. Joel S Winnik & Michele C. Farquhar
Suite 700, North Building 555 Thirteenth Street, NW
Washington, DC 20036-3406 Washington, DC 20004
And email to: jswinnik@hhlaw.com; and
TAIT North America
mcfarquhar@hhlaw.com
Attn: Steve Cragg, President
15740 Park Row [*]
BREC Counsel opposing Petitioners regarding an
Suite 450 Houston
assignment of a License under the Applications, formerly
Texas 77084 counsel to Petitioners in the PD of the same Applications.
Tait Electronics Ltd EnCana Oil & Gas (USA), Inc.

Attn: Michael Chick, Managing Director ATTN Dean Purcelli
175 Roydvale Ave 792 Buckhorn Drive
Christchurch Rifle, CO 81650
New Zealand
Keller and Heckman LLP
Spectrum Tracking Systems, Inc. Wayne V Black , Esq
ATTN Jon J. Gergen 1001 G Street NW Suite 500 West
2545 Tarpley Road Washington, DC 20001
Carrollton, TX 75006
And Email to jgergen@sm-ets.com) McDERMOTT WILL & EMERY LLP
Jeffrey L Sheldon , Esq
600 Thirteenth Street, N.W.
Pinnacle Wireless, Inc.
Washington, DC 20005-3096
Michael Hayford
80 Commerce Way
PacifiCorp
Hackensack, NJ 07424
ATTN Jim Stahl, PE
And email to timw@pinnacle-wireless.com 825 NE Multnomah St., 1500 LCT
Portland, OR 97232-2149

East Kentucky Power Cooperative, Inc.
ATTN Terry Estes
PO Box 707
4775 Lexington Rd.
Winchester, KY 40392-0707
Holland & Knight LLP

Peter M Connolly , Esq (legal counsel to Harris
Corporation)
ATTN P. Connolly- Telecom
2099 Pennsylvania Ave., NW, Suite 100
Washington, DC 20006-6801
County of Riverside
RCIT Communications Bureau
ATTN John Sarkissian, Freq Mgr
6147 Rivercrest Dr, Ste A
Riverside, CA 92507
Spectrum Bridge
1064 Greenwood Boulevard
Suite #200
Lake Mary, FL 32746
Attn: Richard Licursi, President & CEO
38

/s/ Warren Havens
[Filed Electronically. Signature on File]
___________________________________
Warren Havens
39


[Post filing note: At end below, I attached an Oct 29 2009 letter filed with the FCC, as shown, attaching a certain errata and
notice as to the below Petition. - Warren Havens]
Beforethe
FEDERALCOMMUNICATIONSCOMMISSION
Washington,
D.C.20554
In the Matter of
SkybridgeSpectrumFoundation,a nonprofit
corporation,and supportingcompanies:
IntelligentTransportation& Monitoring
WirelessLLC, EnvironmentelLLC, Verde PublicNotice
SystemsLLC, andTelesaurusHoldingsLLC
(eachFCC licensees):
Petition for a declaratoryruling whetherthe

CommunicationsAct including $332,or the
jurisdiction of the FederalCommunications
Commission,preemptsStateor Federalcourt
jurisdiction and awardingof monetarydamages
and otheractionsoughtby one CMRS or PMRS
ocTr{N$
serviceprovider againstanother,for violation r€dsndffi&olffiWffiff**
of Stateor Federalantitrustlaw, tort law, and
certainotherlaw.
(The first of two independentbut related,

concurrently-submitted petitionsunder47 CFR
$1.2.)
To the Commission
PETITION FOR DECLARATORY RULINGS
For Petitioners:
Wanen C. Havens
2649BenvenueAvenue
BerkeleyC494704
Fax: 510740 3412
Phone:510.841.2220.
NossamanLLP
PatrickJ. Richard
SophieN. Froelich
50 California Street.34th Floor
SanFrancisco,CA 94lll
Phone:415.438.7278. Fax: 415.398.2438
October14,2009

Before the
FEDERAL COMMUNICATIONS COMMISSION
In the Matter of
Skybridge Spectrum Foundation, a nonprofit Docket ___________________

corporation, and supporting companies:
Intelligent Transportation & Monitoring
Wireless LLC, Environmentel LLC, Verde Public Notice ______________
Systems LLC, and Telesaurus Holdings LLC
(each FCC licensees):
Petition for a declaratory ruling whether the

Communications Act including §332, or the
jurisdiction of the Federal Communications
Commission, preempts State or Federal court
jurisdiction and awarding of monetary damages
and other action sought by one CMRS or PMRS
service provider against another, for violation
of State or Federal antitrust law, tort law, and
certain other law.
(The first of two independent but related,

concurrently-submitted petitions under 47 CFR
§1.2.)
To the Commission
PETITION FOR DECLARATORY RULINGS
For Petitioners:
Warren C. Havens
2649 Benvenue Avenue
Berkeley CA 94704
Phone: 510.841.2220. Fax: 510 740 3412
Nossaman LLP
Patrick J. Richard
Sophie N. Froelich
50 California Street, 34th Floor
San Francisco, CA 94111
Phone: 415.438.7278. Fax: 415.398.2438
October 14, 2009

TABLE OF CONTENTS
THE TWO PETITIONS
1.1 Introduction and Summary .......................................................................... 4
1.2 Request to Place on Public Notice with Pleading Cycle and with
Statement of Intent to Issue a Decision ....................................................... 7
1.3 Petition 1: Parties, Questions Posed (Matters in Controversy in Pending

Court Cases, and Similar Conflicts in Other Case Law), and Rulings
Requested..................................................................................................... 8
1.4 Petition 2: Parties, Questions Posed (Matters in Controversy in Pending

Court Cases, and Similar Conflicts in Other Case Law), and Rulings
Requested..................................................................................................... 12
PETITION 1
BACKGROUND and NEED
2.2 Immediate and Nationwide Importance:

Need to Extend the Commission’s Declaratory Ruling
Wireless Consumers Alliance (2000) 15 FCC RCD 17021 to Its Basis:
Fair Competition Among Competitors Providing Consumer Wireless
Services........................................................................................................ 12
2.2 The FCC Can Issue the Requested Ruling Without Delving Into Facts of
Petitioners’ Pending State and Federal Court Litigation ............................. 13
2.3 The Requested Ruling Will Provide Needed Guidance Including Under
“Chevron Deference” to Allow Proper Actions in and Limit Misguided
Decisions by State and Federal Trial and Appellate Courts, and Reduce
Competitor Proceedings and Hearings Before the FCC .............................. 13
2.4 To Sharpen the Needed Guidance, the Requested Ruling Order Should
Find that the FCC Should State, in Opinions and Orders on Challenges
by an FCC Licensee against Another (including a Petition to Deny, or a
Petition to Revoke), What (if Any) FCC Rules, Communication Act
Sections, and/or FCC Orders Were Violated, Especially for the Private-
Rights-of-Action Purposes of §§ 206, 206, and 401(b) of the Act., but
also for the Antitrust-Law Purposes of §§ 152 Note, 313 and 314, and the
General, State-Law-Action Savings Purpose of § 414 ................................ 14
-2-

ARGUMENT
3.1 Summary Argument .................................................................................... 15
3.2 The FCC Findings of Lack of Preemption in Wireless-Consumer Actions

in In Re Wireless Consumers Alliance (“WCA”). Said Findings Remain
Valid, Are Required Under Recent US Supreme Court Authority, and
Are the Basis of this Petition....................................................................... 17
3.3 Substantially Deregulated Competitive Consumer Wireless, a Goal of the

Telecom Reform Act and the Commission, Can Result Only from Fair
Competition Among Competitors ............................................................... 19
3.4 Building Upon WCA, Findings Here of Non Preemption Are Required to
Allow State and Federal Court Actions to Police Unfair Competition, as
Congress Intended and as Supreme Court Rulings Mandate ...................... 19
EXHIBITS - From and describing court cases giving rise to the Questions posed .........
-3-

THE TWO PETITIONS
1.1
Introduction and Summary
This Petition filed October 14, 2009 is the same as the Petition Petitioners filed on
October 13, 2009 except for erratum changes and several additions that Petitioners determined
were appropriate to make. This October 14th filed Petition is being served, not the October 13th
version, to the parties on the Certificate of Service.
A summary is provided by the descriptive section headings in the table of contents.
To make the Petition more readable, only the Argument section below is double
spaced.
Petitioners
Skybridge Spectrum Foundation (“SSF”) is a Delaware nonprofit corporation

organized and operated exclusively to support the wireless operations and public-benefit
objectives of US federal, state and local government with regard to Intelligent Transportation
Systems (“ITS”), environmental monitoring and protection (“Environment”), and other high
public interest wireless, in accord with § 501 (c) (3) of the Interval Revenue Code.
SSF hold FCC geographic licensees in most of the nation in the AMTS (217-220
MHz), 220 MHz, and M-LMS 900 MHz radio services. SSF obtained its FCC licenses by
outright charitable donations assignments, by disaggregation and partitioning, from
Environmentel LLC, Intelligent Transportation & Monitoring Wireless LLC, and Verde Systems
LLC (each of which assigned AMTS spectrum), and Telesaurus Holdings GB LLC (which
assigned M-LMS spectrum) (the “Four LLCs,” each majority owned and managed by Warren
Havens), and by Warren Havens individually (“Havens”) (who assigned 220 MHz spectrum)
(the Four LLCs and Havens together, the “SSF Supporters”) (SSF and the SSF Supporters also
called “Petitioners”).1
SSF and the SSF Supporters together hold from 6 to 9 MHz of geographic exclusive
sub-GHz licensed spectrum in most all of the nation. They are planning and developing
nationwide wireless for ITS and Environment, based on this spectrum, where the most essential
services for public safety and infrastructure efficiency will be provided at no charge to the
government and private sector end users. They have presented these matters to the FCC, NTIA,
1
Verde Systems LLC, Telesaurus Holdings GB LLC, and Havens also each hold certain VPC
licenses that are dedicated to use in the plan described herein, and until that time, are made
available, with the associated radio equipment, for use on a nonprofit basis to public safety
responders in the subject license areas in and near major Western US forests (in the States of
Arizona, New Mexico, Texas, Nevada, California - Sierra Mountains, Nebraska and North
Dakota). These VPC licenses are also noted here as some of them involve the Radiolink court
case, now before the US Ninth Circuit, described in Exhibits 3 and in the text below.
-4-

US DOT and other Federal agencies, many State agencies, and wireless trade associations since
the year 1999.2
In pursuit of this plan, SSF and SSF Supporters filed three court cases against FCC
licensees (and their controlled and controller entities) listed and shown (by some pleadings and
court decisions) in Exhibits 1-3 hereto (the “Three Court Cases”). The named Defendants are all
FCC licensees and alleged licensed operators, and certain affiliates: Paging Systems Inc., and its
affiliate Touchtel, Inc. (together, “PSI”), Maritime Communications / Land Mobile LLC and its
(or one of its) predecessor(s) in interest, Mobex (together, “MCLM”); and Radiolink and Randy
Powers (together, “Radiolink”).
Each Petitioner is a FCC licensee, and PSI, MCLM and Radiolink are also each FCC
licensees.
The Three Court Cases
Each of the Three Court Cases is pending and not final, but in two courts reached
decisions dismissing Petitioners claims, and those decisions are now on appeal.
See Exhibits 1-3 below, and the Exhibits cover pages: these list and attach copies of
the Complaints, the court decisions dismissing the two of the cases’ Complaints, and pleadings
of Petitioners before the appeals courts.
Each of the Three Court Cases involve, in sum: Complaints filed in State or US
District Court, by all or some of Petitioners, against one or more of PSI, MCLM, and Radiolink
asserting some of the following (all of the following in the Three Court Cases together):
(a) as bases for some of the damage claims, and injuctive relief sought: (i)
violation of certain State laws, (ii) violation of FCC rules shown in FCC decisions that are final
(including no longer subject to any timely appeal), (iii) violation of FCC orders, including rules
that are “orders” under 47 USC §401(b), (iv) (in the two US District Court cases:) violation of
sections of the Communications Act (47 USC) as described in §§ 206 and 207 of the Act.
(b) damage claims regarding: (i) violation of Federal or State (California)
antitrust law, (ii) intentional interference with contracts, (iii) conversion, (vi) interference with
prospective economic advantage, (v) unjust enrichment, (vi) fraud, (vii) negligent
representation), and other torts.
(c) (in the US District Court case in New Jersey:) injunctive relief under 47 USC
§401(b) for violation of FCC orders.
2
In addition, SSF with assistance of the SSF Supporters are active in the development and
introduction of advanced wireless technology and equipment for the US private or professional
radio markets. See, for example, their website: www.tetra-us.us. This work is pursued on a
nonprofit public interest basis by SSF for reasons reflected in the just-cited website.
-5-

Decisions by Trial Courts, Now on Appeal
These are provided in the Exhibits.
In sum, the California trial court and Court of Appeal found and upheld dismissal, and
the US District Court in Arizona (in the Radiolink case) dismissed the Complaint, since the
Complaint dealt with FCC licensees and FCC license matters, taking extremely broad view of
FCC and federal preemption, that appears to be forms of implied conflict or field preemption.
When even the fundamental elements of the Complaints, pleadings, and law on FCC
preemption are considered, the preceding is a fair summary of these decisions, despite the
decisions attempts to cast the findings and conclusions as good law, including consistent with the
Communications Act.
These decisions, made on motions to dismiss or demurrer (not summary judgment) (i)
broke with the FCC decision in Wireless Consumers Alliance (WCA), (ii) are at odds with US
Supreme Court authority on federal agency preemption (including Altria Group Inc. v. Good,
129 U.S. 538, 543 (2008), (iii) misinterpreted and misapplied other applicable authority on FCC
and federal preemption, (iv) misconstrued, by Defendant assertions, basic FCC rules and
decisions (on the basis of “judicial notice”). The decisions also badly misconstrued essential
facts asserted in the Complaints, creating straw-man arguments and defenses of the decisions,
and had other defects for decisions on motions to dismiss or demurrer.
These decisions and the direction of FCC preemption case law that these California
and Federal courts appears to seek, and in any case establish, with regard to excessively broad
FCC preemption, pose serious danger to the proper limits of FCC preemption, and thus to fair
competition among FCC licensees and thus to robust and fair wireless services to the public and
private markets.
The Two Petitions to the FCC
As further explained below, these Three Court Cases have created important cases in
controversy with regard to Sections of the Communications Act and FCC Rules based on which
this Petition for Declaratory Ruling (“Petition 1”), and Petitioners’ concurrently (in the same
week) filed independent but related other petition for declaratory ruling (“Petition 2”), are
presented and should be addressed.
Other, broader, similar controversy in case law across the nation, reflected in
Petitioners’ pleadings and court decisions in Exhibits 1-3, pertaining to the same Sections further
justify Commission decision on this Petition are also discussed below.
This filing is Petition 1.
Petition 2 is a Petition for declaratory ruling whether a FCC declaratory ruling

(“Ruling”) on preemption under § 332 of the Communications Act or otherwise under FCC
jurisdiction (including any Ruling under the this Petition 1) and other declaratory Rulings, that
apply to one or more FCC licensees subject of the Ruling is an “order” under §401(a) and (b) of
the Act and thus subject to US District Court injunctions to comply with the Ruling.
-6-

1.2
Request to Place on Public Notice with Pleading Cycle
and with Statement of Intent to Issue a Decision
Due to the importance of the matters presented, Petitioners request that the FCC place
this Petition 1, and Petition 2, on Public Notice for comments and reply comments by interested
parties including PSI, MCLM, and Radiolink, various other licensees that may be affected by
Commission rulings on the Petitions, as well as organizations that may be interested such as
those who commented on the WCA petition. See attached Certificate of Service.
Placing the Petition on Public Notice with a pleading cycle will also establish a more firm
basis for the rulings on the Petition to receive “Chevron deference.” Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (“Chevron”). See Cass R.
Sunstein, "Chevron Step Zero," 92 Va. L. Rev. 187 (2006).
In addition, Petitioners will be submitting filings in the near future in the Three Court
Cases (again, see Exhibits 1-3)-- in the US Ninth Circuit Court (in the case of Petitioners verses
Radiolink) and in the California Court of Appeals (in the case of Petitioners verses PSI and
MCLM)3 (and likely later in the case of Petitioners vs. PSI and MCLM in the US District Court
in New Jersey)—requesting that those courts take certain actions and adopt scheduling so that
they may have the opportunity to consider the guidance from the Commission provided in
rulings on the Two Petitions, as well as for potential injunctions under Section 401(b) of the
Communications Act that may arise based upon said rulings.
For the purpose of these submittals to the Ninth Circuit and the California Court of
Appeals, and generally due to the importance of the Questions presented for Commission
rulings, Petitioners request that in placing the Two Petitions on Public Notice, the FCC indicate
that it plans to rule on the Two Petitions reasonably soon after the pleading cycle has ended.
3
And probably later in the case of Petitioners verses PSI and Mobex in the US District Court in
New Jersey.
-7-

1.3
This Petition 1:
Parties,
Questions Posed
(Matters in Controversy in Pending Court Cases, and Similar Conflicts in Other Case Law),
And Rulings Requested
The Parties directly subject of Petition 1 are Petitioners on one side, and PSI, MCLM,
and Radiolink on the other side.
The matters in controversy involve the following questions for which Petitioners seek
declaratory rulings by the Commission (the “Questions”).4
Questions involving State court actions:
1. Can any litigation in or decision of a State Court, simply by being litigation

(not considering the claims presented and relief sought), constitute “State or
local government…authority to regulate the entry of or the rates charged” as
meant in the Communications Act § 332(c)(3)(A), or otherwise be preempted
by FCC jurisdiction?
Requested ruling in summary:

(i) No.
(ii) Remedy for a FCC licensee who believes any State court
litigation or decision does or may create such §332-prempted regulation:
Petition the FCC for a preemption order (and enforce said order if needed,
as to the other party in the litigation, by an injunction under
Communications Act §401(b): see Petition 2).
If the answer to question 1 is Yes, then:

2. (a) Can any litigation in a State Court claims of violation of State antitrust
law (including California’s Cartwright Act) be preempted under the
Communications Act § 332(c)(3)(A), or otherwise be preempted by FCC
jurisdiction?
(b) If so, which classes of said claims are preempted and which are not?

(a) No.
(b) (Answer not relevant if answer to ‘(a)’ is “No.”)
4
In the Questions, unless otherwise provided in the context, the singular and plural forms of
words such as “claim” and “claims” and associated verbs are meant to covey the same meaning
for purposes of the Questions.
-8-

If the answer to question 1 is Yes, then:
3. (a) Can any litigation in a State Court on claims of violation of State law
other than State antitrust law, including tort and contact law, that do not
challenge or tread upon any FCC decision or decision making authority
under the Communications Act and FCC rules, be preempted under the
Communications Act § 332(c)(3)(A), or otherwise be preempted by FCC
jurisdiction?

(a) No.
If the answer to question 3(a) is Yes, then:

4. (a) Can any litigation in a State Court on claims of violation of State law
other than State antitrust law, including tort and contact law, that do not
challenge or tread upon but are based on orders or decisions of the FCC that
are final (including no longer subject to any timely appeal thereof)—
including license revocation, termination,5 or cancellation, and license-
application decisions-- be preempted under the Communications Act §
332(c)(3)(A) (including by being construed as a form of regulation of market
“entry”), or otherwise be preempted by FCC jurisdiction?

(a) No.
Questions involving US District Court actions:
5. (a) Can any litigation in a US District Court on claims of violation of federal

antitrust law be preempted by any form of FCC preemption (including any
implied conflict or field preemption)?

(a) No.
5
Including automatic license terminations without specific Commission actions as provided for
in FCC rules §§ 1.955(a)(1)-(3), and § 1.946(c), and related radio-service specific rules regarding
required coverage and service by license construction deadlines.
-9-

6. (a) Can any litigation in a US District Court on a claim under the
Communications Act §§ 206 and 207, or injunctive relief sought under
§401(b), that does not challenge or tread upon but is based on orders or
decisions of the FCC that are final (including no longer subject to any timely
appeal thereof)—including license revocation, termination,6 or cancellation,
and license-application decisions-- be preempted by any form of FCC
preemption (including any implied conflict or field preemption)?

(a) No.
7. (a) Can any claims in a US District Court of violation by a FCC licensee of

an FCC “order,” as that term is used in the Communications Act § 401(b),
for the purpose of an injunction from the court under that Section, be
preempted by any form of FCC preemption (including any implied conflict
or field preemption)?

(a) No.
8. (a) Is an entity a “common carrier” as that term is used in the

Communications Act §§ 206 and 206, where (i) said entity obtains and
maintains a FCC license for radio spectrum by error --(by any means, and
with or without fraud or gross negligence), such as spectrum already lawfully
and exclusively licensed to another entity, and (ii) said spectrum is
specifically classed as common carrier CMRS in § 20.9(a) of the FCC rules
and is also described in §20.9(b) (i.e., VPC, AMTS, and PCS) and the entity
did not obtain FCC approval of an application and certification under said §
20.9(b) for PMRS-only regulatory classification?
(b) Similarly, is an entity holding radio spectrum listed in §20.9(a) as CMRS

under a FCC license that lists said spectrum as PMRS only (with or without
also listing as PMRS, spectrum that is classed as PMRS in FCC rules or by
6
Including automatic license terminations without specific Commission actions as provided for
in FCC rules §§ 1.955(a)(1)-(3), and § 1.946(c), and related radio-service specific rules regarding
required coverage and service by license construction deadlines.
- 10 -

FCC waiver or other FCC decision) presumptively a “common carrier” as
that term is used in the Communications Act §§ 206 and 207, where said
presumption prevails unless the entity successfully rebuts it in any legal
action taken against the entity under said §§ 206 and/ or 207?
Requested ruling in summary (see relevant Argument section below):

(a) Yes.
(b) Yes.
Questions involving State or US District Court actions:
9. For an entity to pursue—

(a) claims that are not preempted by the Communications Act §
332(c)(3)(A) or otherwise preempted by FCC jurisdiction, of violation of
State law in a State court or US District Court that are based on violation by
the defendant of a section of the Communications Act, a FCC rule, or a FCC
order, or
(b) claims in a US District Court under the Communications Act §§
206, 207, or 401(b) that are based on violation by the defendant of a section
of the Communications Act, a FCC rule, or a FCC order (where said section,
rule, or order are among those based on which private rights of action are
permitted by §§ 206, 207, or 401(b))—
does the FCC first have make a decision (final or not) (i) that the defendant
violated the subject section, rule, or order and (ii) that such violation was
“wrongful” (“wrongful” here meaning a material violation that was
deliberate, by gross negligence, repetitive, or otherwise of a nature that may
subject the violator to sanctions by the FCC)?

(a)+(i), and (a)+(ii): No, and No.
(b)+(i), and (b)+(ii): No, and No.
- 11 -

1.4
Petition 2:
Parties,
Questions Posed
(Matters in Controversy in Pending Court Cases (and Similar Conflicts in Other Case Law),
and Rulings Requested
The Parties directly subject of Petition 2 are Petitioners on one side, and PSI and
MCLM on the other side. Radiolink may be an interested party also.
In Petition 2: the Questions posed, similar conflicts in other cases, requested rulings
requested are described and the exhibits provided in Petition 2. The essential question is stated
at the end of Section ‘(i)’ above.
BACKGROUND and NEED
2.1
Immediate and Nationwide Importance:
Need to Extend the Commission’s Declaratory Ruling
Wireless Consumers Alliance (2000) 15 FCC RCD 17021
to Its Basis: Fair Competition Among Competitors Providing
Consumer Wireless Services
The need for the Declaratory Rulings requested herein is indicated in the preceding
sections, and a review of the court documents and decisions in the Exhibits. In addition:
The Commission’s decision in Wireless Consumers Alliance (2000) 15 FCC RCD 17021)
(“WCA”) arose out of and dealt principally with consumer tort claims against FCC licensed
operators in State courts and is generally cited for that purpose in court litigation and decisions.
However, claims by a FCC licensees against another FCC licensee for violation of State
tort law such as involved in each of the Petitioners’ Three Court Cases (see Exhibits 1-3),
including but not limited to fraud, interference with prospective economic advantage,
interference with contracts, and conversion, should be similarly addressed by the Commission.
In this regard, in addition to the unsettled issues in Petitioner’s Three Court Cases which
give rise to the questions set forth above, there are many other similar conflicts and unsettled
issues created in court cases and decisions across the nation. See cases cited in the court
pleadings and decisions in Exhibits 1-3.
As argued below, without FCC licensee competitors having clear rights to police each
other by State court actions of the nature of these Three Court Cases, competition to serve
consumers of wireless services (CMRS and PRMS) will suffer even if they have access to courts
as decided in WCA.
- 12 -

Congress’s and the FCC’s substantial deregulation of commercial wireless in the 1990s
increased the need for this policing: the “flip side” of federal deregulation of a market is robust
access to courts for action under State laws protecting fair competition and contracts.
2.2
The FCC Can Issue the Requested Ruling Without Delving Into
Facts of Petitioners’ Pending State and Federal Court Litigation
While the Questions presented are each based on matters in controversy in Petitioners’
Three Court Cases (see Exhibits 1-3), responding to the Questions does not require delving into
or verifying facts in any of the Three Court Cases.
Rulings on the Questions presented will satisfy the purposes of the Petition including to
give needed guidance to the courts, the parties currently involved in the Three Court Cases, and
FCC licensees and other entities that may in the future bring State or Federal court actions on
matters addressed by the rulings.
2.3
The Requested Ruling Will Provide Needed Guidance
Including Under “Chevron Deference” to
to Allow Proper Actions in and Limit Misguided Decisions
by State and Federal Trial and Appellate Courts,
and Reduce Competitor Proceedings and Hearings Before the FCC
First, see Section “(ii)” above with regard to placing this Petition on Public Notice
including so that FCC rulings on the Questions presented will be clearly accorded “Chevron
deference” by courts.
The decisions in Petitioners Three Court Cases to date (see Exhibits 1-3), and cases cited
and misconstrued therein, demonstrate the need for the FCC to provide rulings on the Questions
presented herein.
The need is further made clear by the current status of two of the Three Court Cases
which require in the near future guidance from the requested rulings is to provide guidance to the
California appeals court and possibly soon the California Supreme Court, and to the Ninth
Circuit: see third paragraph and three subjections of Section 2.1.1 below. [Correction: 3.1.1]*
[Correction: Sec. 1.1.]
In addition, the Questions posed in Petition 2 (filed and served the same week as this
Petition 1), summarized at the end of Section “(i)” above, involve one practical means—US
District Court injunctions under the Communications Act §401(b) enforcing FCC orders-- of
providing force of law to the Declaratory Rulings order on the Questions posed in this Petition 1.
Without providing this guidance, FCC licensees (including Petitioners and the defendants
in Petitioners’ Three Court Cases) and others will pursue far more issues before the FCC than
they would if this guidance is provided, and especially if the guidance is in accord with WCA and
other authority that properly interprets and applies FCC preemption and jurisdiction.
______
* Corrrections in brackets herein were made after filing of the hard copy with the FCC Secretary.
- 13 -

2.4
To Sharpen the Needed Guidance, the Requested Declaratory Ruling Order Should Find
that the FCC Should State, in Opinions and Orders on Challenges by an FCC Licensee
against Another (including a Petition to Deny, or Petition to Revoke),
What (if Any) FCC Rules, Communication Act Sections, and/or FCC Orders Were Violated,
Especially for the Private-Action-Rights Purposes of §§ 206, 206, and 401(b) of the Act,
but also for the Antitrust-Law Purposes of §§ 152 Note, 313 and 314,
and the General, State-Law Action Savings Purpose of § 414
One of the Questions posed above, Question 9, seeks a ruling related to the above
**
captioned topic, which Petitions believe should be answered, that a preliminary decision by the
FCC determining liability or wrongfulness is not a prerequisite for the described court actions to
proceed.
However, defendants in Petitioners’ Three Court Cases (see Exhibits 1-3) make
assertions, and several of the judges involved in those cases give indications, that unless the FCC
has previously identified violations as described in the caption above, the court action lacks
foundation. Also, it is likely that in other cases, past and future, similar defensive assertions and
judicial indications and doubts will arise.
Thus, Petitioners ask that in response to this Petition, the FCC make the finding requested
in the caption above.
In sum, without that finding and FCC practice under that finding, the above-cited
Communication Act sections will have considerably less practical utility, and court litigation
pursuant to those sections will be less efficient, leading ultimately to less robust, timely, and
competitive communications services to the public and private markets.
__________
* [By "preliminary" we mean hear a FCC decision (final or pre-final) that is "preliminary" to the court's final determination of
damage claims under its jurisdiction.]
- 14 -

ARGUMENT
More detailed and additional arguments and authority than provided in this Argument
section below are provided in Petitioners pleadings included in Exhibits 1-3 hereto. In addition,
the pleadings filed in the in support of the petition by WCA in the WCA docket, WT Docket No.
99-263, found on the FCC ECFS website provide additional relevant materials.
3.1
Summary Argument
3.1.1. Argument building upon essential conclusions in WCA.
As this Commission has previously held: “Section 332 does not generally preempt the
award of monetary damages by state courts” based on state tort or contract claims. In re Wireless
Consumers Alliance Inc. 15 FCCR 17021 (2000).
Mobile service providers who have harmed consumers or competitors, however,
increasingly argue that the Federal Communications Act was intended to severely limit -- or all
together preclude!-- judicial relief in the form of compensatory damages.
See Exhibits 1-3 hereto: Based on assumed broad FCC preemption:
(i) In the recent unpublished decision in Havens, et al. v. Mobex
(September 25, 2009) (see Exhibit 1 hereto),7 the California appellate court affirmed dismissal of
all plaintiff’s claims for damages, even those claims based on the FCC’s revocation and
cancellation (by final action) of licenses that defendants maintained after their automatic
termination, and even claims unrelated to the issuance or revocation of any license.8
7
See also Exhibit 4 for a discussion of other court decisions that call for Commission response
to the questions raised in this Petition 1 and the concurrently filed Petition 2.
[Exhibit 1.6 hereto]
8
Appellants have submitted, on the same day as this Petition is filed with the FCC, a petition for
rehearing of this decision, and if that is not granted and the decision reversed, they intend to file
an appeal to the California Supreme Court. (This footnote continues on the next page.)
One of the grounds asserted for rehearing is so that the court may consider the FCC’s ruling
on this Petition, if that is timely rendered. Similarly, if an appeal is submitted to the California
Supreme Court, the FCC’s ruling will be of importance.
- 15 -

(ii) In its decision in Telesaurus VPC v. Randy Power et al, the Arizona US
District Court dismissed all claims for damages, even those based on federal law under sections
206 and 207 of the Federal Communications Act (“FCA”).
(iii) In defendants motion to dismiss in Skybridge Spectrum Foundation et.
al. v. PSI and MCLM in the NJ US District Court, PSI and MCLM argue (relying in part on the
three decisions noted in this paragraph above and provided in Exhibits 1-3) that all of Petitioners’
state law claims, of a similar nature as those in Havens, et. al. v. Mobex, are preempted, and also
that their claims under FCA §§ 206, 207, and 401(b) are also fully preempted (other grounds for
dismissal are also asserted not relevant to this FCC Petition).
A declaratory ruling is therefore urgently needed to reaffirm and extend the
Commission’s declaratory ruling in In re Wireless Consumers Alliance Inc. to hold that the
principles set forth in that declaratory ruling, which are entirely consistent with and indeed
required by recent U.S. Supreme Court authority as to preemption of state law claims, apply with
equal force to state law claims related to “market entry” as well as “rate setting.”
3.1.2. Argument for new premise for non-preemption than assumed in WCA.
However, for reasons given in the remainder of this Section 1.1 below, and as
reflected in Question 1 posed above, while Petitioners believe the Commission reached
essentially correct conclusions in WCA, they believe the Commission erred in not commencing
by finding that no State court action or action under State law claims in a State or Federal court,
As reflected in part in the certificate of service, Petitioners also are seeking comment by the
office of the California Attorney General on this FCC Petition, for reasons similar to why this
Attorney General office commented in support of the petition in WCA.
California is the State with the most commercial and private wireless in the nation, and
resolving the issues of this Petition for Declaratory Ruling in the California courts, and also in
the Ninth Circuit, will set important precedents for the nation.
- 16 -

can constitute regulation by State or local government as meant in the Communication Act
§332(c)(3)(A).
For purposes of this Section 2.1.1, Petitioners refer to and incorporate Section II of
the Comments Of Public Citizen, Inc. On The Petition Of The Wireless Consumers Alliance,
Inc., in WT 99-263, dated September 10, 1999 (available on the FCC ECFS, thus not attached
here).
[although]
In this regard, Petitioners have asserted in their pleadings in the Three Court Cases
(see Exhibits 1-3 hereto) similar arguments in shorter form, the decisions in these cases to date
have not addressed or accepted these threshold arguments.
While these and other court decisions have found otherwise, the FCC should, as the
expert in this matter, address that threshold question and by such provide expert agency guidance
s
to court under “Chevron deference.” Chevron U.S.A., Inc. v. Natural Resources Defense
[correction: sec. 1.2]
Council, Inc., 467 U.S. 837 (1984) (“Chevron”). In this regard, see section “(ii)” above
regarding the importance of placing this Petition on Public Notice with regard to Chevron
deference.
3.2
The FCC Findings Of Lack Of Pre-Emption In Wireless Consumer Actions In
In Re Wireless Consumer’s Alliance.
Said Findings Remain Valid, Are Required Under Recent
US Supreme Court Authority, and Are the Basis of This Petition
Section 332(c)(3)(A) provides an express preemption clause that provides that states
may “regulate the market entry of or the rates charged by any commercial or private mobile
service provider.”
The Wireless Consumer’s Alliance declaratory ruling arose out of a state court
decision in California to dismiss plaintiff’s claims for damages on the basis that those claims
related to rate-setting and were therefore preempted.
- 17 -

The Commission, however, appropriately reviewed the precise language of section
332, which only prevents a state from “regulating” rate setting or market entry, not all claims for
that might related to rates or market entry.
Unless a claim for damages under state law “directly” challenges an FCC
determination as to rates or market entry, the claims based on state tort or contract law are simply
not “regulation.” Only claims that “directly” tread upon a specific area reserved to the FCC,
therefore, fall within the statute and will be preempted.
Armed with the Commission’s guidance in Wireless Consumer’s Alliance, the state
appellate court, in the dispute giving rise to that petition for a declaratory ruling, reversed the
trial court’s dismissal. The Court relied on the declaratory ruling to hold that claims alleging
false advertising with respect to rates charged by an FCC licensed service provider were not
preempted and could therefore proceed. (Spielholz v. Superior Court (2001) 86 Cal.App.4th
1366)
That court properly recognized a “presumption against preemption.” (Id. at 1072)
The United States Supreme Court, recognizing the constitutional basis of state law
claims for damages under the traditional police powers, recently held that courts interpreting a
pre-emption clause susceptible of more than one plausible reading should accept the reading that
“this disfavors preemption.” (Altria Group Inc. v. Good, 129 U.S. 538, 543 (2008). [ In addition,
see Section 1.5 above. ]
Under the language of Section 332, there is no basis to provide a different standard for
claims relating to “market entry” as distinguished from claims relating to “rate setting.” In both
cases there should be a “presumption against preemption.” In neither case should a state law
claim for damages be deemed to be tantamount to state “regulation” unless the state court claim
- 18 -

directly challenges or seeks to “second guess” an FCC decision regarding regulation of rates or
market entry in telecommunications.
More detailed and additional arguments and authority are provided in Petitioners
pleadings included in Exhibits 1-3 hereto.
3.3
Substantially De-Regulated Competitive Consumer Wireless,
A Goal of the Telecom Reform Act, and the Commission,
Can Result Only drom Fair Competition Among Competitors
Result From
As one commentator has explained,
FCC preemption is not complete or total. … The deregulation laws that

eliminated specific federal acceptance of telecommunications company tarrifs has
created a much larger role for state law, and this fact is sufficient to preclude a
finding that Congress intended completely to occupy the field, following the 1996
Act. But the scope of post-deregulation preemption is fragmented with diverging
court opinions, and requires a particularized examination in each setting.
O’Reilly, J., Federal Preemption of State and Local Law: Legislation, Regulation and
Litigation, Ch. 11, p. 100 (ABA 2006) (citations omitted); see, also, Wireless Consumer’s
Alliance, 15 F.C.C. R.C.D. at 17022, ¶ 2.
Petitioners will submit additional arguments and authority on this section’s topic in a
pleading if this Petition is placed on Public Notice with a pleading cycle, or in a supplement to
this Petition.
3.4
Building upon WCA,
Findings Here of Non Pre-Emption Are Required
To Allow State and Federal Court Actions to Police Unfair Competition,
As Congress Intended and as Supreme Court Rulings Mandate
Because the defendants here and in other cases, who engage in (or are with good cause
accused of engaging in) unfair anti-competitive conduct, damaging to plaintiffs and the markets
involved, continue to argue that the Federal Communications Act provides broad preemption, a
declaratory ruling rejecting this erroneous position, now adopted by some courts, and on appeal
in both the California courts and the US Ninth Circuit court, is called for.
- 19 -

Public policy is thwarted, not served, by the broad and erroneous application of pre-
emption adopted by some courts, including the Congressional policy mandate to the FCC of
licensing and regulating / deregulating wireless communications “in the pubic interest,
convenience, and necessity.”
[The rest of this page is intentionally left blank.]
- 20 -

Respectfully submitted, this 14th day of October, 2009
PETITIONERS, as defined above, by
Warren C. Havens
President of each Petitioner
/s/
Patrick J. Richard, Esq.

Nossaman LLP
- 21 -

Exhibits
List of Exhibits
Note: Among the Petitioners, “AMTS Consortium LLC” listed in some documents below is now
called “Environmentel LLC,” and “Telesaurus VPC LLC” listed in some documents below is
now called “Verde Systems LLC.” These LLCs obtained and filed new names with the State of
Delaware in early 2009.
Exhibits 1 are regarding the case (of the “Three Court Cases”) now in the California Court of
Appeal on a petition for rehearing and stay, and that, if said petition is not granted and the
decision upholding dismissal is not reversed, will be appealed to the California Supreme Court.
This case involves:

(1) Havens et al., v. Mobex Network Services, et al., Case No. CIV-463985 in the Superior Court
of the State of California for the County of San Mateo and
(2) Appeal, Case No. A122489, In the Court of Appeal of the State of California First Appellate
District, Division One, regarding San Mateo County Super. Ct. No. CIV-463985.
Plaintiffs and Appellants are all but one of the Petitioners in this FCC Petition: Warren Havens,
AMTS Consortium LLC (now called Environmentel LLC), Telesaurus VPC LLC (now called
Verde Systems LLC), Intelligent Transportation & Monitoring Wireless LLC, and Telesaurus
Holdings GB LLC. All are FCC licensees.
Defendants are Paging Systems Inc., Maritime Communications/ Land Mobile LLC, and Mobex
Network Services (which MCLM alleges to have bought and subsumed) (and their controlled
and controlling entities). All named Defendants are FCC licensees.
Note: Several of the Exhibits 1 may be, in the hard-copy filed today, Oct 14, 2009, with
the FCC Secretary, out of order, and with several with labels switched. However, the PDF copy
served to parties on the Certificate of Service has these in the order and labeling given below.
Exhibit 1.1 Plaintiffs’ (most of the Petitioners in this FCC Petition) Second Amended
Complaint (the operative complaint, the “Complaint”)
Exhibit 1.2 Court decision granting demurrers and dismissing Complaint
Exhibit 1.3 Appellants’ opening appeal brief in the California Court of Appeal
Exhibit 1.4 Appellants’ appeal reply brief

[1.5]
Exhibit 1.3 Court of Appeal decision sustaining trial court dismissal
Exhibit 1.6 Appellants’ petition for rehearing and for stay before the Court of Appeal
- 22 -

Exhibits 2 are regarding the case (of the “Three Court Cases”) now on appeal before the US
Court of Appeals Ninth Circuit.
This case involves:

(1) Telesaurus VPC LLC v. Randy Power et al., Civil Case No. CV07-1311-PHX-NVW, In the
United States District Court, District of Arizona, Phoenix Division, and
(2) Appeal, Case No. 09-15446, In the United States Court of Appeals for the Ninth Circuit, on
appeal from the United States District Court, District of Arizona, Phoenix Division, Civil Case
No. CV07-1311-PHX-NVW.
Plaintiff and Appellant, an FCC licensee, is one of the Petitioners in this FCC Petition:
Telesaurus VPC LLC (now called Verde Systems LLC).
Defendants, each FCC licensees, are Randy Powers and Radiolink.
Exhibit 2.1 Plaintiff’s (one of the Petitioners in this FCC Petition) First Amended
Exhibit 2.2 Court Order dismissing Complaint
Exhibit 2.3 Appellant’s opening appeal brief in the US Court of Appeals Ninth Circuit
Exhibit 2.4 Appellant’s appeal reply brief
Exhibits 3 are regarding the case (of the “Three Court Cases”) in the US District Court for the
District of New Jersey.
This case involves:

Skybridge Spectrum Foundation, et al., v. Mobex Network Services, LLC et al. (including Paging
Systems Inc.) Civil Action No. 08-CV-03094-KSH-PS, In the United States District Court for
the District of New Jersey.
Plaintiffs and Appellants are all of the Petitioners in this FCC Petition: Skybridge Spectrum
Foundation, Warren Havens, AMTS Consortium LLC (now called Environmentel LLC),
Telesaurus VPC LLC (now called Verde Systems LLC), Intelligent Transportation & Monitoring
Wireless LLC, and Telesaurus Holdings GB LLC. All are FCC licensees.
Defendants are Paging Systems Inc., Maritime Communications/ Land Mobile LLC, and Mobex
Network Services (which MCLM alleges to have bought and subsumed) (and their controlled
and controlling entities). All named defendants are FCC licensees.
Exhibit 3.1 Plaintiffs’ (all of the Petitioners in this FCC Petition) First Amended
Exhibit 3.2 Plaintiffs’ brief in opposition to defendants PSI’s and MCLM’s Omnibus
Motion to Dismiss the First Amended Complaint
- 23 -

Exhibit 3.3 Court Order—Consent Order Dismissing Joint Omnibus Motion to
Dismiss without Prejudice & Stipulation to Stay Action
The Exhibits listed above follow.
There are in two PDF files, with page separators between individual Exhibits.
- 24 -

Certificate of Filing and Service
I, Warren C. Havens, certify that I have, on this 14th day of October, 2009, filed as described
below, and caused to be served, by placing into the United States Postal Service system with
first-class postage affixed, and/ or noted emailed as described below, a copy of the foregoing
Petition for Declaratory Ruling to the following. Copies served by email are sent the full
Petition including exhibits. Copies served only by mail are sent only the text.
:
1 – FCC
Filed in hard copy, via hand delivery, to:
Marlene H. Dortch, Secretary Angela Giancarlo,

Federal Communications Commission Senior Legal Advisor to Commissioner McDowell
Office of the Secretary Via email to: angela.giancarlo@fcc.gov
c/o Natek, Inc.,
Renee Crittendon,
236 Massachusetts Avenue, N.E.
Senior Legal Advisor to Commissioner Clyburn
Suite 110 Via email to: renee.crittendon@fcc.gov
Washington, DC 20002
---------- William Freedman,
Acting Senior Legal Advisor to Commissioner Baker
Julius Genachowski Via email to: william.freedman@fcc.gov
Chairman
Via email to: julius.genachowski@fcc.gov Erin McGrath,
Acting Legal Advisor for Commissioner Attwell
Michael J. Copps Baker
Commissioner Via email to: erin.mcgrath@fcc.gov
Via email to michael.copps@fcc.gov ----------
Robert M. McDowell Ruth Milkman,

Commissioner Chief, Wireless Telecommunications Bureau
Via email to robert.mcdowell@fcc.gov Via email to: ruth.milkman@fcc.gov
----------
Mignon Clyburn
Commissioner James Arden Barnett, Jr.,
Via email to: mignon.clyburn@fcc.gov Chief, Public Safety & Homeland Security Bureau
Via email to: james.barnett@fcc.gov
Meredith Attwell Baker
Commissioner Scot Stone,
Via email to: meredithattwell.baker@fcc.gov Deputy Chief, Mobility Division, PS&HSB
---------- Via email to: scot.stone@fcc.gov
Colin Crowell, Jeffrey Tobias

Senior Counselor to Chairman Genachowski Mobility Division, PSHSB
Via email to: colin.crowell@fcc.gov Via email to: jeff.tobias@fcc.gov
----------
Bruce Gottlieb,
Chief Legal Advisor to Chairman Genachowski The Intergovernmental Advisory Committee
Via email to: bruce.gottlieb@fcc.gov Attention to:
Gregory Vadas
Jennifer Schneider, Via email to: gregory.vadas@fcc.gov
Legal Advisor to Commissioner Copps
Via email to: jennifer.schneider@fcc.gov

2 – Parties to the State and Federal court litigation described in Exhibit 1
-- Maritime Communications/ Land Mobile --
Dennis Brown
FCC Counsel for MCLM (including Mobex) Manatt, Phelps & Phillips, LLP
8124 Cooke Court, Suite 201 Litigation counsel for PSI
Manassas, VA 20109-7406 Eugene L. Hahm, Esq.
Via FedEx Overnight Christopher D. LeGras, Esq.
and email to d.c.brown@att.net 1001 Page Mill Road, Building 2
Palo Alto, CA 94304
Newdorf Legal
Litigation Counsel for MCLM (including Mobex) Manatt, Phelps & Phillips, LLP
David B. Newdorf Litigatin counsel for P:SI and Touch Tel Corp.
220 Montgomery Street, Suite 1850 Kenneth D. Friedman, Esq.
San Francisco, CA 94104 7 Times Square
New York, New York 10036
Graham Curtin, P.A.

Litigation Counsel for MCLM (including Mobex) Robert Cooper
Robert W. Mauriello, Jr., Esq. President
Gina M. Graham, Esq. Touch Tel Corp., Affiliate and Agent of PSI
4 Headquarters Plaza 805 Burlway Rd.
P.O. Box 1991 Burlingame, CA 94010
Morristown, NJ 07962-1991
----------
Sandra DePriest -- Radiolink and Randy Powers --

Donald DePriest
Owners and Controlers of MCLM (including Mobex) Kathi Mann Sandweiss
206 North 8th Street Roger L. Cohen
Columbus, MS 39701 Litigation Counsel to Radiolink and Randy Power
JABURG & WILK, P.C.
---------- 3200 North Central Avenue, Suite 2000
Phoenix, Arizona 85012
-- Paging System Inc.-- Via FedEx Overnight
and email to kms@jaburgwilk.com
Audrey P. Rasmussen rlc@jaburgwilk.com
FCC Counsel to Paging Systems, Inc. (“PSI”)
Hall, Estill, Hardwick, Gable,
Golden & Nelson, P.C Randy Power
1120 20th Street, N.W. RadioLink Corporation
Suite 700, North Building Randy L Power
Washington, DC 20036-3406 2602 W LONE CACTUS DR. #A
Via FedEx Overnight Phoenix, AZ 85027
and email to: arasmussen@hallestill.com
- 26 -

3 - Others With Expressed or Potential Interest
(Petitioners also intend to provide copy by email to persons serving the following organizations.)
Jerry Brown The National Association of Telecommunications

Attorney General, State of California Officers and Advisors
Attorney General’s Office California Dept. of Justice Ken Fellman, President-Elect
Attn: Public Inquiry Unit Kissinger & Fellman, P.C.
P.O. Box 944255 3773 Cherry Creek North Drive
Sacramento, CA 94244-2550 Ptarmigan Place, Suite 900
Denver, CO 80209
Richard Blumenthal
Attorney General, State of Connecticut SCAN-NATOA — States of California & Nevada
Office of the Attorney General Jonathan Kramer
55 Elm Street Kramer Telecom Law Firm, P.C.
Hartford, Connecticut 06106 2001 S. Barrington Ave., Suite 306
Also via email to: attorney.general@po.state.ct.us Los Angeles, CA 90025-5379 USA
J.B. Van Hollen

Attorney General, State of Wisconsin U.S. PIRG: The Federation of State PIRGs
Wisconsin Department of Justice Amina Fazlullah, Counsel
P.O. Box 7857
Federal Advocacy Office
Madison, WI 53707-7857
---------- 218 D Street SE
The National Association of Regulatory Utility

Commissioners Public Citizen
James Bradford Ramsay, General Counsel 1600 20th Street, NW
1101 Vermont Avenue, Suite 200 Washington, DC 20009
The National Association of Telecommunications

Officers and Advisors
Mary Beth Henry, President
Deputy Director, Mt. Hood Cable Regulatory
Commission/City of Portland
1120 SW 5th Avenue, #1305
Portland, OR 97204
Filed Electronically. Signature on Filed

___________________________________
Warren Havens
- 27 -

Before the
Skybridge Spectrum Foundation et. al.

Petition for Declaratory Rulings
October 14, 2009 Filed and Date-Stamped
NOTICE and ERRATA
Notice. The above-referenced Petition describes a second Petition, or Petition 2, for Declaratory
Ruling to be filed soon. This Petition 2 will be filed later, such as if and soon after the FCC
places the above-captioned Petition on Public Notice. This notice is not a substantive
amendment of the above-captioned Petition.
Errata. The following corrections are hereby made:
Page As Filed Corrected by this Errata

9 “contact” “contract”
(in questions 3 and 4)
14 “206, 206” “206, 207”
(in Section 2.4)
15 “Exhibit 4” “pleadings in the Exhibits”
(in footnote 7)
16 “Section 1.1” “Section 3.1”
(4th line from bottom)
17 “Section 2.1.1” “Section 3.1.2”
(3rd line from top)
In addition, the copy of the Petition captioned above served to the entities and persons listed in
its Certificate of Service contained additional corrections shown by text inserted in brackets - “[
]”. See footnote at bottom of page 13. Said copy is filed today with the Secretary.
Petitioners also clarify here the Certificate of Service of the Petition: While, as it states, the
Petition was filed with the FCC Secretary on 10.14.09, it was served on 10.15.09 calculated
using East Coast time.
Respectfully,
Warren C. Havens
President of each Petitioner
(As defined in, and with contract information in, the Petition)
October 29, 2009

Certificate of Filing and Service
I, Warren C. Havens, certify that I have, on this 29th day of October, 2009, filed as described
below, and caused to be served, by placing into the United States Postal Service system with
first-class postage affixed, and/ or emailed as described below, a copy of the foregoing Petition
for Declaratory Ruling - NOTICE and ERRATA to the following.
:
1 – FCC
Filed in hard copy, via hand delivery, to:
Marlene H. Dortch, Secretary Angela Giancarlo,

Federal Communications Commission Senior Legal Advisor to Commissioner McDowell
Office of the Secretary Via email to: angela.giancarlo@fcc.gov
c/o Natek, Inc.,
Renee Crittendon,
236 Massachusetts Avenue, N.E.
Senior Legal Advisor to Commissioner Clyburn
Suite 110 Via email to: renee.crittendon@fcc.gov
---------- William Freedman,
Acting Senior Legal Advisor to Commissioner Baker
Julius Genachowski Via email to: william.freedman@fcc.gov
Chairman
Via email to: julius.genachowski@fcc.gov Erin McGrath,
Acting Legal Advisor for Commissioner Attwell
Michael J. Copps Baker
Commissioner Via email to: erin.mcgrath@fcc.gov
Via email to michael.copps@fcc.gov ----------
Robert M. McDowell Ruth Milkman,

Commissioner Chief, Wireless Telecommunications Bureau
Via email to robert.mcdowell@fcc.gov Via email to: ruth.milkman@fcc.gov
----------
Mignon Clyburn
Commissioner James Arden Barnett, Jr.,
Via email to: mignon.clyburn@fcc.gov Chief, Public Safety & Homeland Security Bureau
Via email to: james.barnett@fcc.gov
Meredith Attwell Baker
Commissioner Scot Stone,
Via email to: meredithattwell.baker@fcc.gov Deputy Chief, Mobility Division, PS&HSB
---------- Via email to: scot.stone@fcc.gov
Colin Crowell, Jeffrey Tobias

Senior Counselor to Chairman Genachowski Mobility Division, PSHSB
Via email to: colin.crowell@fcc.gov Via email to: jeff.tobias@fcc.gov
----------
Bruce Gottlieb,
Chief Legal Advisor to Chairman Genachowski The Intergovernmental Advisory Committee
Via email to: bruce.gottlieb@fcc.gov Attention to:
Gregory Vadas
Jennifer Schneider, Via email to: gregory.vadas@fcc.gov
Legal Advisor to Commissioner Copps
Via email to: jennifer.schneider@fcc.gov

2 – Parties to the State and Federal court litigation described in Exhibit 1
-- Maritime Communications/ Land Mobile --
Dennis Brown Manatt, Phelps & Phillips, LLP

FCC Counsel for MCLM (including Mobex) Litigation counsel for PSI
8124 Cooke Court, Suite 201 Eugene L. Hahm, Esq.
Manassas, VA 20109-7406 Christopher D. LeGras, Esq.
Via FedEx Overnight 1001 Page Mill Road, Building 2
and email to d.c.brown@att.net Palo Alto, CA 94304
Newdorf Legal Manatt, Phelps & Phillips, LLP

Litigation Counsel for MCLM (including Mobex) Litigatin counsel for P:SI and Touch Tel Corp.
David B. Newdorf Kenneth D. Friedman, Esq.
220 Montgomery Street, Suite 1850 7 Times Square
San Francisco, CA 94104 New York, New York 10036
Graham Curtin, P.A. Robert Cooper

Litigation Counsel for MCLM (including Mobex) President
Robert W. Mauriello, Jr., Esq. Touch Tel Corp., Affiliate and Agent of PSI
Gina M. Graham, Esq. 805 Burlway Rd.
4 Headquarters Plaza Burlingame, CA 94010
P.O. Box 1991
Morristown, NJ 07962-1991 ----------
-- Radiolink and Randy Powers --

Sandra DePriest
Donald DePriest Kathi Mann Sandweiss
Owners and Controlers of MCLM (including Mobex) Roger L. Cohen
206 North 8th Street Litigation Counsel to Radiolink and Randy Power
Columbus, MS 39701 JABURG & WILK, P.C.
3200 North Central Avenue, Suite 2000
---------- Phoenix, Arizona 85012
Via FedEx Overnight
-- Paging System Inc.-- and email to kms@jaburgwilk.com
rlc@jaburgwilk.com
Audrey P. Rasmussen
FCC Counsel to Paging Systems, Inc. (“PSI”)
Hall, Estill, Hardwick, Gable, Randy Power
Golden & Nelson, P.C RadioLink Corporation
1120 20th Street, N.W. Randy L Power
Suite 700, North Building 2602 W LONE CACTUS DR. #A
Washington, DC 20036-3406 Phoenix, AZ 85027
Via FedEx Overnight
and email to: arasmussen@hallestill.com

3 - Others With Expressed or Potential Interest
(Petitioners also intend to provide copy by email to persons serving the following organizations.)
Jerry Brown The National Association of Telecommunications

Attorney General, State of California Officers and Advisors
Attorney General’s Office California Dept. of Justice Ken Fellman, President-Elect
Attn: Public Inquiry Unit Kissinger & Fellman, P.C.
P.O. Box 944255 3773 Cherry Creek North Drive
Sacramento, CA 94244-2550 Ptarmigan Place, Suite 900
Denver, CO 80209
Richard Blumenthal
Attorney General, State of Connecticut SCAN-NATOA — States of California & Nevada
Office of the Attorney General Jonathan Kramer
55 Elm Street Kramer Telecom Law Firm, P.C.
Hartford, Connecticut 06106 2001 S. Barrington Ave., Suite 306
Also via email to: attorney.general@po.state.ct.us Los Angeles, CA 90025-5379 USA
J.B. Van Hollen U.S. PIRG: The Federation of State PIRGs

Attorney General, State of Wisconsin Amina Fazlullah, Counsel
Wisconsin Department of Justice Federal Advocacy Office
P.O. Box 7857
218 D Street SE
Madison, WI 53707-7857
---------- Washington, DC 20003
Public Citizen
The National Association of Regulatory Utility 1600 20th Street, NW
Commissioners Washington, DC 20009
James Bradford Ramsay, General Counsel
1101 Vermont Avenue, Suite 200
The National Association of Telecommunications

Officers and Advisors
Mary Beth Henry, President
Deputy Director, Mt. Hood Cable Regulatory
Commission/City of Portland
1120 SW 5th Avenue, #1305
Portland, OR 97204
___________________________________
Warren Havens

5

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October29,2009
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Re: for DeclaratoryRulingsfiled August , 2009(the "Petition")--

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Angela
Marlene H. Advisor to CommissionerMc
SeniorLe
Federal Commission
Via email : angela.giancarlo@fcc.sov
Office of the
c/o Natek,Inc., Renee
236 ue,N.E. Senior I Advisor to CommissionerCl
Suite110 @fcc.gov
Via email : renee.crittendon
Washington,
William
Acting Legal Advisor to C
Julius Via email
Chairman
Via emailto: Erin
Acting Advisorfor Commissioner
Michael J. Baker
Commissioner Via email
Via email to
Robert M. Mc Ruth M
Commissioner Chief, Wi Telecommunications
Via email to Via email : ruth.milkman@fcc.gov
Mignon
Commissioner James Barnett, Jr.,
Via email to: Chiei Safety& HomelandSecuritY
Via email i ames.barnett@ fcc.gov
Meredith
Commissioner Scot
Via email to: Deputy , Mobility Division,PS&HS
Via email : scot.stone@fcc.gov
Colin Crowell' Jeffrey

SeniorCounse Genachowski Mobility
Via email to: Via email
Bruce
Chief Legal Genachowski The Advisory Co
Via email to: Attention
Gregory
Via emai gregory.vadas@fcc.gov
Jennifer
Legal Advisor
Via email to:

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October14,


Example of an FCC proceeding involving Section 308 of the Communications Act.
Core terms: license, licensee, candor, misrepresentation, discovery, forfeiture, credibility, misconduct, conceal, disclo-
sure
This case also contains a FCC findings of improper attorney behavior in a Section 308 proceeding, in this case, attorney
Dennis Brown.
Dennis Brown is the same attorney that represents Maritime Communictions / Land Mobile (MCLM), Donald and San-
dra DePriest the controllers of MCLM, and Wireless Properties of Virginia owned by Donald Depriest.
The decision below includes:
We find that Kay's responses to the Bureau's 308(b) request failed to provide information that he was
obligated as a licensee to produce. We also find that Kay filed a pleading concerning Sobel that
lacked candor. We will therefore revoke Kay's stations in the 800 MHz band and assess a forfeiture….
* * * *
Kay's then attorney, Dennis C. Brown, a partner at Brown & Schwaninger,

****
The Bureau characterized Brown's April 7 letter as "inadequate, evasive, and contrived to avoid full
and candid disclosure to the Commission." WTB Exh. 6 at 1. The Bureau called it "a studied effort to
avoid producing any information."
****
The Bureau termed Brown's answer to item (6) "ludicrous" and "frivolous."
****
Brown stated that: "Had any license held by Mr. Kay cancelled automatically because he failed to
construct an authorized station in a timely manner, we respectfully submit that such an automatic ac-
tion of law could not, in any way, raise a question concerning his qualifications to be a Commission
licensee."
****
Brown once again stated that Kay was not "convinced that the Commission would keep confidential
any information that the Commission requested."
****
Brown asserted that the Bureau's refusal … grant Kay criminal immunity, and its stated intention to
initiate hearing proceedings against Kay violated Kay's constitutional rights
****
Bureau sent Brown a responsive letter on June 10, 1994. The Bureau labeled Kay's response "woe-
fully inadequate"
****
The Bureau characterized Brown's requests as "dilatory tactics" that exposed Kay to the threat of
revocation.
****
Brown reiterated his legal objection on the ground that the specifics of the alleged complaints had not
been disclosed to Kay. He stated that: "Mr. Kay respectfully reports that there is no date subsequent to
January 31, 1994 for which the submission of the requested information would be convenient." WTB
Exh. 15 at 3.

****
Kay argues …that compliance with a 308(b) Letter is voluntary and that the Commission can issue a
subpoena, enforceable in the federal courts, if it wants to compel disclosure
****
We find that Kay violated his obligations under 47 U.S.C. § 308(b) and 47 C.F.R. § 1.17. Licensees
have an obligation to respond to Commission inquiries. See Fox Television Stations, Inc., 10 FCC
Rcd 8452, 8508 P139 (1995). See also 47 C.F.R. § 1.17
****
"The Commission is not required to bargain with its licensees for the information to which it is enti-
tled in order properly to carry out its functions." Carol Music, Inc., 37 FCC 379, 384 (1964). Al-
though the Commission has the authority to seek information by formal means, such as subpoena,
where necessary, the Commission expects its licensees to recognize its authority and to cooperate with
staff-conducted informal investigations. See PTL of Heritage Village, 71 FCC 2d 324, 329 P12
(1979). See also RKO General, Inc. v. FCC, 670 F.2d 215, 229 (D.C. Cir. 1981) ("As a licensing au-
thority, the Commission is not expected to 'play procedural games with those who come before it in
order to ascertain the truth' . . . . license applicants may not indulge in common-law pleading strate-
gies of their own devise"). Moreover, the failure to provide information known to be relevant or a
failure to respond based on a facially implausible theory may constitute lack of candor. Fox Televi-
sion Stations, Inc., 10 FCC Rcd at 8508 PP137.
****
Kay's responses to the Bureau's inquiries disclosed virtually none of the information requested. He
failed to provide…. Equally unavailing is Kay's response that he was not required to maintain certain
records, such as documentation of grant dates. WTB Exh. 3 at 2. Investigations frequently require ex-
amination of material not required to be maintained by Commission rules. PTL of Heritage Village,
71 FCC 2d at 327 P8.
****
n8 We are similarly troubled by Kay's response to the Bureau's request that he explain the applicabil-
ity of the copyright law to his use of a copyright notice on his correspondence. Kay's former attorney
[Dennis Brown] responded: ". . . we must respectfully decline to advise the Commission concerning
its obligations under the law of copyright. We can, if the Commission requests, refer the Commission
to a firm which practices in the field of copyright and with whose services some of our clients have
expressed satisfaction." WTB Exh. 5 at 2. This response is anything but "respectful."
****
…it is reasonably within our discretion (and the Bureau's) to determine that the existence of numerous
complaints about a licensee may warrant a broad investigation of that licensee's compliance. See
Tidewater Radio Show, Inc., 75 FCC 2d 670, 677 P15 (1980) (". . . full authority and power are given
to the Commission to institute an inquiry on its own motion, with or without complaint, as to any mat-
ter falling within its jurisdiction.
****
The April 7, 1994 response asserts that as a result of fluctuations in use and other factors: ". . . at any
given instant of time, Mr. Kay may not know the number of mobile units operated on each of his sta-
tions."
****
Kay's failures to give productive responses to the Bureau's inquiries warrant a finding that he acted in
a recalcitrant manner in violation of 47 U.S.C. § 308(b) and 47 C.F.R. § 1.17, and thereby failed to
meet his responsibilities as a licensee.
****

ALJ rejected as false the statement in the affidavit that Kay had no "interest" in stations or licenses as-
sertedly held by Sobel. The ALJ did not credit Sobel's attempts to reconcile this statement with the
fact that Kay owned the stations' equipment, had an option to purchase the stations, and had a stake in
the stations' revenues, holding that this arrangement constituted "a fair amount of interest." 12 FCC
Rcd at 22895-96 PP56-58, 22901 P73. The ALJ concluded that the affidavit was intended to "ward
off" the Commission from being apprised of the true nature of the Kay-Sobel business relationship
and that it therefore lacked candor. 12 FCC Rcd at 22901 P73.
***
In our decision, we found that Sobel's affidavit went beyond denying that Sobel was Kay's alter ego
and made several factual assertions that were misleading. Most notably, we found that the claim that
Kay had no "interest" in Sobel's stations was false in light of the substantial financial interests he had
under the Management Agreement. Decision at P71. We also found that several other statements,
while perhaps technically correct, tended to be misleading, such as that Sobel was not an "employee"
or "partner" of Kay. Id. at P73. We found that, in light of the facts as fully disclosed, the affidavit, and
the pleading it supported, left the false impression that ". . . Kay has no interest in any license or sta-
tion in common with Marc Sobel . . . . "
****
In determining the sanction to be imposed against Sobel, we found that an unauthorized transfer of
control accompanied by deception constituted disqualifying misconduct…. We therefore revoked or
denied … those facilities on the 800 MHz band, the band on which the Management Agreement Sta-
tions operated.
****
We find that our conclusions regarding Sobel reflect adversely on Kay. The representations that we
found false and misleading were made in a pleading filed by Kay. For the reasons discussed in the
Sobel decision (Decision at P74), we reject Kay's argument that the case against him represents mere
"quibbles" over the meaning of the words used. We do not believe that a reasonable reader could
square the language used with the facts as fully disclosed. Moreover, Kay, like Sobel, understood the
questionable nature of the claim that he had no "interest" in Sobel's stations and knew that the Com-
mission would want to know the true relationship between Sobel and Kay.
****
Moreover, a finding that Kay deliberately intended to conceal his relationship with Sobel is consistent
with other instances in the record indicating that Kay was not forthcoming about stations he managed.
****
The record in this proceeding indicates that Kay has violated his obligations as a licensee. Under the
308(b) issue we found that Kay deliberately withheld material information from the Commission
without justification in violation of 47 C.F.R. § 1.17.
****
We find that the revocation of Kay's licenses for stations operating on this band will serve as a signifi-
cant deterrent to future misconduct.

In the Matter of JAMES A. KAY, JR.;
Licensee of One Hundred Fifty Two Part 90 Licenses
in the Los Angeles, California Area
WT Docket No. 94-147

RELEASE-NUMBER: FCC 01-341
FEDERAL COMMUNICATIONS COMMISSION
17 FCC Rcd 1834; 2002 FCC LEXIS 409; 25 Comm. Reg. (P & F) 1015
January 25, 2002 Released; Adopted November 20, 2001
CORE TERMS: station, license, licensee, management agreement, loading, mobile, channel, user, candor, misrepre-
sentation, discovery, forfeiture, customer, licensed, designation, radio, credibility, misconduct, responded, confidential-
ity, authorization, conceal, initial decision, band, disclosure, notice, confidential, repeater, earthquake, designated
By the Commission
OPINION
I. INTRODUCTION
1. This decision modifies an Initial Decision by Chief Administrative Law Judge Joseph Chachkin concluding that
James A. Kay, Jr. is qualified to remain the licensee of 152 Part 90 land mobile stations. James A. Kay, Jr., FCC 99D-
04 (ALJ Sept. 10, 1999). We find that Kay failed to respond to Commission inquiries and filed a pleading that lacked
candor. We will therefore revoke Kay's stations in the 800 MHz band and assess a forfeiture of $ 10,000 against Kay.
II. BACKGROUND
2. On December 13, 1994, the Commission designated this proceeding for hearing to determine whether Kay, a li-
censee of land mobile radio facilities under Part 90 of the Commission's rules, has complied with those rules and
whether he possesses the character qualifications to remain a Commission licensee. James A. Kay, Jr., 10 FCC Rcd
2062 (1994), modified, 11 FCC Rcd 5324 (1996). Kay was ordered to show cause why his licenses should not be re-
voked or cancelled, why he should not be ordered to cease and desist from certain violations of the Communications
Act, and why an order for forfeiture should not issue.
3. The Commission had received numerous complaints about Kay's operations, including allegations that he was
falsely reporting the number of mobile units he serves in order to avoid the channel sharing and recovery provisions of
the rules. James A. Kay, Jr., 10 FCC Rcd at 2062 P2. On January 31, 1994, the Bureau, pursuant to 47 U.S.C. § 308(b),
served Kay with a letter of inquiry requesting him to provide certain information, including information about the load-
ing of his stations. Id. at 2063-64 PP6-7. After an exchange of correspondence and extensions of time, the Bureau, on
June 10, 1994, repeated its request. Kay responded on June 24, 1994 that: "There is no date . . . for which the submis-
sion of the requested information would be convenient." Id. at 2064 P8. The Commission thereupon designated this case
for hearing. Id. Of the eight issues originally designated, four remain before us:
a) To determine whether James A. Kay, Jr. has violated Section 308(b) of the Act and/or Section 1.17 of
the Commission's Rules by failing to provide information requested in his responses to Commission in-
quiries;
....
c) To determine if Kay has willfully or repeatedly violated any of the Commission's construction and op-
eration requirements in violation of Sections 90.155, 90.157, 90.313, 90.623, 90.627, 90.631, and 90.633
of the Commission's Rules;

d) To determine whether [Kay] has abused the Commission's processes by filing applications in multiple
names in order to avoid compliance with the Commission's channel sharing and recovery provisions
[**4] in violation of Sections 90.623 and 90.629;
....
g) To determine, in light of the evidence adduced pursuant to the foregoing issues, whether [Kay] is
qualified to remain a Commission licensee . . . .
4. This matter was originally assigned to Administrative Law Judge Richard L. Sippel, who, following further pro-
ceedings, issued a summary decision in which he revoked Kay's licenses and ordered Kay to forfeit $ 75,000. James A.
Kay, Jr., 11 FCC Rcd 6585 (ALJ 1996). That decision was subsequently vacated and the proceeding was remanded for a
full hearing. James A. Kay, Jr., 12 FCC Rcd 2898 (OGC 1997). After the remand, Judge Sippel added a further issue
against Kay based on findings made in another proceeding (WT Docket No. 97-56), that an individual named Marc D.
Sobel had transferred control of several Part 90 stations to Kay without Commission authorization and that he made
misrepresentations and lacked candor. James A. Kay, Jr., FCC 98M-15 (Feb. 2, 1998). See Paragraph 71, infra. On Oc-
tober 19, 1998, the Commission ordered the appointment of a new administrative law judge to preside over this case.
James A. Kay, Jr., FCC 98-274 (Oct. 19, 1998). Then-Chief Administrative Law Judge Joseph Chachkin (ALJ) n2 ap-
pointed himself to preside. James A. Kay, Jr., FCC 98M-122 (Oct. 30, 1998).
n2 Chief Judge Chachkin retired from the Commission on October 31, 1999.
5. In his Initial Decision (ID), the ALJ concluded that the Bureau failed to demonstrate any misconduct by Kay that
would warrant revocation of his licenses. ID at P223. On the contrary, the ALJ strongly faulted the Bureau's own con-
duct, finding:
This Judge has never seen prosecutorial misconduct of this magnitude in the twenty years he has pre-
sided over Commission cases. Such misconduct can not be countenanced. It is completely contrary to the
Commission's duty and responsibility to treat all of its licensees in a fair and evenhanded manner.
ID at n.49. n3
n3 In James A. Kay, Jr., 13 FCC Rcd 16369 (1998), pet. for recon. dismissed, 14 FCC Rcd 14 FCC Rcd 1291 (1998), we considered
Kay's allegations of "prosecutorial misconduct" against the Bureau. Without endorsing all aspects of the Bureau's conduct, we found that
Kay had not shown that the Bureau's conduct was outrageous or shocking or that Kay had suffered material prejudice. Having reviewed the
record of this proceeding, we adhere to this conclusion. We therefore disavow the ALJ's conclusions regarding the Bureau. Similarly, we
find no reason to adopt the dissent's suggestion that we remand for new hearings as to this matter.
6. The ALJ found no basis to fault Kay under the § 308(b) issue. ID at PP175-81. He found that the Bureau did not
allege that Kay's responses to the Bureau's inquiry contained misrepresentations or lacked candor. He further found that
(1) the Bureau's inquiry was excessively broad and constituted an impermissible "fishing expedition,"(2) that Kay ulti-
mately produced the information requested after designation for hearing, and (3) that Kay had legitimate concerns as to
whether the Bureau would keep the sensitive business information requested confidential.
7. The ALJ rejected the Bureau's contention that Kay had underutilized the frequencies on which he was licensed.
ID at PP186-98. He found that the Bureau had not shown that Kay was subject to any specific loading requirement. He
also found significant flaws in the manner that the Bureau analyzed the evidence in attempting to support its claims.
8. Additionally, the ALJ rejected allegations that Kay abused the Commission's processes by filing applications in
multiple names. ID at PP199-207. Although the ALJ found that Kay was involved in filing applications on behalf of
four individuals, the ALJ found that Kay had a factual basis for believing that these individuals had a bona fide intention
to use the radio facilities applied for. Moreover, the ALJ questioned the credibility of the witnesses against Kay. Ac-
cording to the ALJ, Kay had no motive to acquire facilities in the manner alleged, since he could have legitimately ap-
plied for them in his own name.

9. Finally, although the ALJ accepted the conclusion in WT Docket No. 97-56, that Sobel transferred control of the
facilities in question to Kay without authorization, he found no basis for disqualifying Kay. ID at PP209-18. In this re-
gard, he found that Kay did not make any misrepresentation or engage in other deception in connection with the alleged
transfer.
10. Now before the Commission are: (1) the Wireless Telecommunications Bureau's Exceptions and Brief, filed
October 12, 1999; (2) the Reply of James A. Kay, Jr., to the Wireless Telecommunications Bureau's Exceptions and
Brief; and (3) related procedural matters. For the reasons set forth below, we will modify the initial decision. We find
that Kay's responses to the Bureau's 308(b) request failed to provide information that he was obligated as a licensee to
produce. We also find that Kay filed a pleading concerning Sobel that lacked candor. We will therefore revoke Kay's
stations in the 800 MHz band and assess a forfeiture of $ 10,000 against Kay.
III. PROCEDURAL MATTERS

11. Before turning to the merits of this case, we wish to address two procedural matters. First, Kay contends that the
"clear and convincing evidence" standard of proof applies in this case, rather than the more lenient "preponderance of
evidence" test. We disagree. Since the Supreme Court's ruling in Steadman v. SEC, 450 U.S. 91 (1981), it is well estab-
lished that the preponderance of the evidence test applies in administrative proceedings. See Silver Star Communica-
tions-Albany, Inc., 6 FCC Rcd 6905, 6907 n.3 (1991); Fox River Broadcasting, Inc., 88 FCC 2d 1132, 1136 n.9 (Rev.
Bd. 1982). Citizens for Jazz on WRVR, Inc. v. FCC, 775 F.2d 392, 395 n.1 (D.C. Cir. 1985), cited by Kay, does not
hold to the contrary.
12. Second, Kay argues that the Bureau's exceptions and brief should be stricken as violating the provisions of 47
C.F.R. §§ 1.276 and 1.277. According to Kay, the Bureau's pleading lacks a separate statement of the questions of law
presented as required by 47 C.F.R. § 1.276(a)(2). Moreover, Kay submits that the pleading exceeds the limit of 30 pages
n4 because, in addition to 29 pages of text, the pleading has seven pages of attachments. 47 C.F.R. § 1.277(c). The Bu-
reau's pleading does not exceed the page limitation. Attachments consisting of materials that factually support excep-
tions are not counted in determining the page limit. See Belo Broadcasting Corp., 61 FCC 2d 10, 11 P4 (1976); Gross
Broadcasting Co., 65 FCC 2d 514, 514 P3 (Rev. Bd. 1977); 47 C.F.R. § 1.48(a). While, the Bureau's pleading does not
have a separate statement of the questions of law presented, as required by the rule, a statement does precede the discus-
sion of each individual issue. The Bureau indicates that a "reformatted" pleading could be refiled without exceeding the
page limitation. We see no reason to disrupt the proceeding at this point merely to require such a "reformatting."
n4 The provisions of 47 C.F.R. § 1.277 limits exceptions and briefs to 25 pages. The General Counsel granted the parties a five page
extension in this case. James A. Kay, Jr., FCC 99I-19 (Oct. 7, 1999).
IV. § 308 ISSUE

13. The ALJ found that Kay operated Part 90 land mobile radio facilities in the Los Angeles, California, area and
that he began providing two-way mobile service to others on a commercial basis in approximately 1982-84. He operated
a sole proprietorship under the name of Lucky's Two-Way Radio. Lucky's sold repeater service, rented repeater site
space, and provided technical consulting services. ID at PP8-9. He offered these services through Specialized Mobile
Radio (SMR) stations that operated in the 800 MHz band, n5 and through private carrier stations that operated in the
470-512 MHz or "UHF" band. Kay's UHF stations were licensed in the Business Radio Service. n6 ID at P84.
n5 SMR stations are classified as either conventional or trunked. When trunking is used, channel access is controlled by a computer,
which gives the user access to the first available channel or places the user in a waiting line to be served. See Amendment of Part 90, 10
FCC Rcd 7970, 7974-75 PP3-4 (1994); Amendment of Part 90, 60 RR 2d 867, 868 P2 (1986).
n6 Kay was also the President and sole shareholder of Buddy Corp., which operated under the business name of Southland Communi-
cations. Southland was engaged primarily in the sales, service, installation, and maintenance of mobile radios and two-way mobile radio sys-
tems. Some, but not all, customers of Lucky's were customers of Southland, and vice versa. ID at P8-9.
14. On January 31, 1994, the Bureau requested, pursuant to 47 U.S.C. § 308(b), that Kay furnish the Bureau various
information concerning his licensed facilities. ID at P10. The Bureau stated that:

The Commission has received complaints questioning the construction and operational status of a num-
ber of your licensed facilities. Specifically, the complaints allege that numerous facilities licensed to you
are on U.S. Forest Service Land, but do not have the requisite permits for such use. The presumption is
that those facilities were not constructed and made operational as required by the Commission's rules and
therefore, the licenses have canceled. In addition, the Commission has also received complaints question-
ing the actual loading and use of your facilities. The complaints allege that the licensed loading of your
facilities does not realistically represent the actual loading of the facilities, thereby resulting in the ware-
housing of spectrum. [Emphasis in the original.]
Id.; WTB Exh. 1 (the "308(b) Letter").

15. The 308(b) Letter directed Kay to produce: (1) an alphabetical list of the call signs and licensee names for all
facilities owned or operated by Kay or any companies under which he does business, annotated to show which facilities
are located on U.S. Forest Service land, (2) the original license grant date for each call sign, the date the facility was
constructed and placed into operation, and the type of station, (3) copies of all U.S. Forest Service permits, (4) an expla-
nation for the lack of a U.S. Forest Service permit for any station located on U.S. Forest Service land, (5) a list of all of
Kay's customers, including "the user name, business address and phone number, and a contact person" along with the
number of mobile units and, for trunked systems, the number of control stations operated by the user, and (6) a list of
the total number of mobile units operated on each of Kay's stations, substantiated by business records. ID at P11; WTB
Exh. 1.
16. Kay's then attorney, Dennis C. Brown, a partner at Brown & Schwaninger, responded on February 16, 1994.
Brown sought "written assurance that any information which Kay submits in response to the Commission's request will
be held in strictest confidence and will not be disclosed under any circumstances to any person who is not a Commis-
sion employee." WTB Exh. 348 at 1. Brown further requested that Kay be afforded immunity from any forfeiture ac-
tion or criminal prosecution based on any information supplied, and asked that the running of the sixty day response
period be tolled pending action on the requests set forth in the letter. ID at P15; WTB Exh. 348.
17. The Bureau responded with a letter, dated March 1, 1994, addressed to Brown. The Bureau stated that, pursuant
to 47 C.F.R. § 0.459, if Kay wished to have submitted material withheld from public inspection, he would be required to
submit such a request concurrently with the submission of the materials. The Bureau further stated that Brown's Febru-
ary 16, 1994, letter did not comply with 47 C.F.R. § 0.459 and therefore "is not considered a request that information
submitted . . . be withheld from public scrutiny." The request for immunity was denied on the grounds that "Congress
has not provided for immunity when responding to [Section 308(b)] requests." The deadline for responding to the
308(b) Letter was extended to April 14, 1994. ID at P16; WTB Exh. 349.
18. On April 7, 1994, Brown wrote two letters to the Bureau. In the first letter, Brown specifically requested confi-
dential treatment pursuant to 47 C.F.R. § 0.459. Brown sought confidential treatment to prevent an unwarranted inva-
sion of privacy in that Kay was submitting (via Brown's second April 7 letter) personal information, such as the extent
of his resources and how his business was affected by a recent earthquake. Brown also requested confidentiality on
competitive grounds. The letter specifically advised the Bureau that some of Kay's competitors obtained copies of the
308(b) Letter and used it to disparage Kay's reputation in the radio communications service market. Brown expressed
concern that Kay's competitors would obtain the information which he is submitting and distribute it in an effort to dis-
parage Kay among his customers, and would use the information to probe for weaknesses in his business strategy, and
to solicit his current customers directly. ID at P17; WTB Exh. 2.
19. In the second letter dated April 7, 1994, Brown addressed the substance of the 308(b) Letter. He presented a
number of legal objections and challenges to the scope of the request and provided none of the requested information. In
response to item (1), he asserted that the Commission already knew the call signs of Kay's stations and declined to "du-
plicate that information" or perform "secretarial sorting tasks" that the Commission could "more expeditiously" perform
itself. WTB Exh. 3 at 1. He denied that the Commission had jurisdiction to inquire into the status of Kay's U.S. Forest
Service Permits, and suggested that the Commission could "plot each station on a map" if it desired to ascertain which
facilities were located on U.S. Forest Service Land. Id. As to item (2), he asserted that the Commission records already
showed the dates the licenses were granted, and that Kay was not required to keep any records of when they were con-
structed. Addressing items (3) and (4), he declined to provide information about Forest Service permits, claiming that

such information was irrelevant to the Commission's jurisdiction and that a presumption that facilities lacking a permit
were not constructed was unreasonable. ID at P18; WTB Exh. 3.
20. As to item (5), Brown characterized the Bureau's request for customer lists and usage data as "an unlawful fish-
ing expedition," since it was not directly related to specific complaints. WTB Exh. 3 at 5. He denied that Kay was re-
quired to maintain any record of user names or of the other information about users that was requested. He complained
that the Bureau's March 1, 1994 letter (paragraph 17, supra) did not provide the requested confidentiality. Brown also
asserted that item (6) essentially required Kay to "tell the Commission everything about everything" and complained
that the March 1 letter declined to provide Kay with immunity. WTB Exh. 3 at 4. He further protested that the request
did not specify the time frame for which the data was to be supplied and that, in any event, the usage of Kay's facilities
fluctuated over time. For that reason, and because many of Kay's customers had access to multiple facilities, Brown
maintained that Kay might not know the number of mobile units in operation on each station. Additionally, Brown as-
serted that Kay was not required by the Commission's rules to supply loading information except in connection with
certain applications and that Kay had provided such information when appropriate. Brown also deemed the request un-
duly burdensome in light of local conditions, since Kay was still recovering from the Northridge Earthquake, which
occurred on January 17, 1994 and severely damaged Kay's home and business, and since he was adversely affected by
the difficult economic conditions in the Los Angeles market. ID at P19-20; WTB Exh. 3.
21. Thereafter, on May 11, 1994, the Bureau responded with a letter addressed directly to Kay. The Bureau told
Kay that it required answers to the Bureau's January 31 letter in order to act on several pending applications and that
these applications would be dismissed unless Kay responded within 14 days. The letter also noted that the April 7 re-
sponses contained copyright notices at the bottom. n7 The Bureau told Kay that if he claimed copyright protection he
would be required to file 50 copies of his response and justify why the copyright laws apply. ID at P24; WTB Exh. 4.
n7 The notice, included at the bottom of each page of several of Brown's letters, stated: "Entire contents copyright, James A. Kay, Jr.,
1994. All rights reserved. No portion of this document may be copied or reproduced by any means."
22. Brown replied on May 17, 1994. He specifically challenged the Bureau's request for 50 copies, which is more
than required by section 1.51 of the Commission's rules. See 47 C.F.R. § 1.51. He stated: "Since the Commission could
not possibly require 50 copies for its own internal use, the only reasonable conclusion is that the Commission intends to
make further circulation of Mr. Kay's response beyond the Commission." With respect to the copyright notice on Kay's
response, Brown stated that the notice was intended to prevent distribution of the response outside of the Commission,
but otherwise declined to "advise the Commission as to its obligations under the law of copyright." ID at P26, WTB
Exh. 5 at 2. Brown also reiterated some of the same legal objections to the 308(b) Letter that he had set forth in the sec-
ond April 7, 1994, letter. Brown complained that the Commission had declined to furnish him with information about
specific complaints under the Freedom of Information Act and suggested that progress could be made on the matter if
the Bureau would request specific information concerning each of the specified facilities. He further complained that the
Bureau had no justification for threatening to dismiss Kay's applications to get information. ID at P27; WTB Exh. 5.
23. The Bureau thereupon, on May 20, 1994, responded to Brown's April 7, 1994, letters. The Bureau character-
ized Brown's April 7 letter as "inadequate, evasive, and contrived to avoid full and candid disclosure to the Commis-
sion." WTB Exh. 6 at 1. The Bureau called it "a studied effort to avoid producing any information." Id.; ID at P28. The
Bureau stated that:
With respect to Kay's request that information provided to the Commission in response to our inquiry be
withheld from public inspection, we will not make those materials which are specifically listed under the
provisions of [the Commission regulations implementing the Freedom of Information Act] routinely
available for inspection to the public. Therefore, materials which include any information containing
trade secrets or commercial, financial, or technical data which would customarily be guarded from com-
petitors, will not be made routinely available to the public.
WTB Exh. 6 at 1. The Bureau specifically responded to an allegation, made in Brown's first April 7 letter, that the
Commission had improperly disclosed confidential information about an individual named Joe Hiram. The Bureau ob-
served that Hiram had consented to the release of the information and that Brown & Schwaninger had been so in-

formed. The Bureau clarified its January 31 request to indicate that Kay should provide loading information as of Janu-
ary 31, 1994 and extended the response date to June 3, 1994. WTB Exh. 6.
24. On May 25, 1994, Brown made a further response asking the Bureau to "clarify" its request by specifying the
facilities involved in specific complaints. He suggested that Commission employees could inspect relevant records at
Kay's office. He also suggested that: "the Commission might want to scrutinize the complaints to assess the likely valid-
ity of each item in light of its knowledge of the credibility of the complaining parties and in light of its knowledge of the
benefits of which they may hope to gain by harassing Mr. Kay." WTB Exh. 7 at 2. He proposed that "While Mr. Kay
might not be convinced that the complainants had presented a prima facie case . . . Mr. Kay would not need to raise
such procedural objections were the Commission to clarify its request as suggested." WTB Exh. 7 at 2. Brown asked
the Commission to defer the response date until 14 days after the conclusion of Kay's FOIA litigation seeking to obtain
copies of the complaints against him. ID at PP38-39; WTB Exh. 7.
25. On the next day, May 26, 1994, the Bureau issued a short letter summarily rejecting the request for clarification,
stating:
The Commission's request asks for basic information that Mr. Kay would have readily available if he is
indeed providing communication services to customers. In fact, such information would be a necessity in
order to even issue monthly bills to users of the many systems for which he is apparently licensed.
The Bureau refused to extend the response date beyond June 3. ID at P40; WTB Exh. 8.
26. Brown responded to the Commission the same day. Brown again sought "clarification" of items in the January
31 308(b) Letter. With respect to specific items, he asked for the following clarifications: (1) what licensee information
the Commission did not possess, (2) what information about the grant and construction of the licenses the Commission
did not have, (3) and (4) the relevance of the Forest Service permits, and (5) whether the Commission would keep Kay's
user information confidential. As to item (6), Brown did not seek further clarification, but stated that: "Mr. Kay states
that his business records substantiate that a total of in excess of 7,000 mobile units and control stations operate in asso-
ciation with all of the facilities which he and his companies own and operate." WTB Exh. 10 at 3. Brown urged that a
failure to provide further information did not warrant a revocation proceeding. ID at P40; WTB Exh. 10.
27. The following day, May 27, 1994, the Bureau answered that no clarification was required. ID at P40; WTB
Exh. 10. The Bureau further stated:
Regarding the request for user information, we have no intention of disclosing Mr. Kay's proprietary
business information, such as customer lists, except to the extent that we would be required by law to do
so. Our intent is not to divulge Mr. Kay's proprietary business information to competitors or any non-
Commission personnel . . . .
WTB Exh. 10 at 1. The Bureau termed Brown's answer to item (6) "ludicrous" and "frivolous." Id. at 1-2.
28. On June 2, 1994, Brown again responded to the Bureau. As to item (1), Brown explained that Kay, in addition
to holding licenses in his own name, had an interest in two closely held corporations, Buddy Corp. and Oat Trunking
Group, Inc., and that Kay "does not operate any station of which either he or the two above named corporations is not
the licensee." WTB Exh. 11 at 1. The letter further explained that Kay did not hold any license that the Commission
would not already have in its own records. ID at P43; WTB Exh. 11.
29. Brown also renewed his various legal objections to the Bureau's request for information regarding Kay's U.S.
Forest Service permits, including relevancy and the Bureau's refusal to disclose the particulars of the alleged complaints
against Kay. Brown claimed that there is no requirement that Kay maintain records of license grant dates, that the
Commission already had the license grant dates in its own records, and, to the extent Commission rules required Kay to
report construction completion dates, he had already done so at the appropriate times. ID at P43; WTB Exh. 11. Brown
stated that: "Had any license held by Mr. Kay cancelled automatically because he failed to construct an authorized sta-

tion in a timely manner, we respectfully submit that such an automatic action of law could not, in any way, raise a ques-
tion concerning his qualifications to be a Commission licensee." ID at P43; WTB Exh. 11 at 3.
30. In response to the Bureau's request for Kay's loading numbers, Brown again stated that Kay's combined sys-
tems served a grand total of 7,000 units, but he asserted that providing specific loading information as of January 31,
would not prove or disprove any complaint the Bureau may have received, because the systems were in continual churn
with customers being added and deleted all the time. Brown again claimed that loading was not a factor as to any of the
specific pending applications. ID at P44; WTB Exh. 11.
31. Brown once again stated that Kay was not "convinced that the Commission would keep confidential any infor-
mation that the Commission requested." WTB Exh. 11 at 5. Brown again cited Bureau's unexplained request for 50
copies of Kay's response. Brown submitted only the number of copies of his June 2, 1994, letter required by 47 C.F.R.
§ 1.51. He also included the copyright notice across the bottom of each page. ID at P45; WTB Exh. 11.
32. Finally, Brown asserted that the Bureau's refusal to disclose the complaints on which the 308(b) Letter was
based, its refusal to postpone the response date until a court resolved Kay's FOIA litigation, its refusal to grant Kay
criminal immunity, and its stated intention to initiate hearing proceedings against Kay violated Kay's constitutional
rights. ID at P46; WTB Exh. 11.
33. The Bureau sent Brown a responsive letter on June 10, 1994. The Bureau labeled Kay's response "woefully in-
adequate" and threatened that it "places Mr. Kay in jeopardy of Commission sanctions which include revocation of li-
censes, monetary forfeiture, or both." WTB Exh. 12 at 1. The Bureau stated that any information submitted would be
kept confidential and dropped its demand for 50 copies of any response, requiring only 1 original and 1 copy. The Bu-
reau again claimed that loading information was readily available to Kay and required a further response by July 1. The
Bureau indicated that it would accept a user list as of any date "convenient to Mr. Kay." WTB Exh. 12 at 1. [Emphasis
in the original.] ID at P47; WTB Exh. 12.
34. On June 17, 1994, Brown wrote to the Bureau, informing it that a Federal District court had required the Com-
mission to submit a "Vaughn Index" of documents withheld from Kay's FOIA request. Brown requested that Kay's dis-
closure date be extended until 30 days after conclusion of the FOIA litigation. ID at P48; WTB Exh. 13. The Bureau
refused on June 22, 1994, noting that it had released over 1,000 documents to Kay. The Bureau characterized Brown's
requests as "dilatory tactics" that exposed Kay to the threat of revocation. ID at P49; WTB Exh. 14 at 1. Finally, on June
30, 1994, Brown responded again. As to each of the specific items in the 308(b) Letter, Brown referred the Bureau to
earlier responses filed on behalf of Kay. Brown reiterated his legal objection on the ground that the specifics of the al-
leged complaints had not been disclosed to Kay. He stated that: "Mr. Kay respectfully reports that there is no date sub-
sequent to January 31, 1994 for which the submission of the requested information would be convenient." WTB Exh. 15
at 3.
35. The ALJ found that Kay's responses did not violate either 47 U.S.C. § 308(b) or 47 C.F.R. § 1.17. He found that
the Bureau had not alleged that Kay's responses constituted misrepresentations or lacked candor. ID at PP175-76. He
criticized the Bureau's 308(b) Letter as exceeding the permissible bounds of Commission inquiry, as defined by
Stahlman v. FCC, 126 F.2d 123 (D.C. Cir. 1942), in that they did not specifically inform Kay of the conduct in question
and narrowly focus to obtain necessary information. ID at P177-79. The ALJ held that, instead, the Bureau had engaged
in a "fishing expedition with the hope that something would turn up." ID at P179. He faulted the Bureau for not explain-
ing particular complaints, for requiring sensitive information, such as customer lists and technical configurations, and
for ignoring Kay's requests for modification. He said that Kay's actions cannot be viewed as an "act of defiance." ID at
P179. The ALJ also found that Kay disclosed nearly 36,000 documents during discovery and that Kay's ability to re-
spond to the 308(b) Letter had been impaired by his limited computer capabilities and the aftereffects of the Northridge
earthquake. The ALJ also found that Kay had legitimate concerns about whether data would be kept confidential. These
included the breadth of the Bureau's request, the Bureau failure to provide requested assurances, its demand for 50 cop-
ies of responses, and an incident in which the Bureau apparently frustrated a finder's preference request filed by Kay. ID
at PP180-81.
36. The Bureau challenges the ALJ's adverse findings. The Bureau denies that the 308(b) Letter constitutes an
unlawful fishing expedition. According to the Bureau, the Commission has already indicated its approval of the 308(b)
Letter in the hearing designation order and other rulings in this proceeding. The Bureau asserts that charges of Bureau
misconduct are irrelevant to the issues in this proceeding. The Bureau disputes the ALJ's findings that the 308(b) Letter
sought excessive detail about Kay's technical operations or that compliance was excessively burdensome. The Bureau
asserts that Kay could have complied with the request by furnishing: (1) a chart of call signs and license names, (2) cop-

ies of Forest Service permits, (3) a user list showing the number of mobile units for each user, and (4) invoices support-
ing the loading of Kay's systems on one specified date. The Bureau also takes issue with the suggestion that it should
have limited its inquiry to the facilities involved in specific complaints.
37. The Bureau discounts Kay's various excuses for noncompliance with the 308(b) request. The Bureau contends
that Kay had no valid concerns about confidentiality, since the Bureau twice assured Kay in writing that sensitive mate-
rial would be kept confidential. The Bureau also argues that the Northridge earthquake did not justify noncompliance.
According to the Bureau, Kay did not rely on the earthquake to justify noncompliance and Kay could have complied
despite the earthquake.
38. Kay responds that the Commission intended to permit inquiry into the propriety of the 308(b) Letter and to
permit Kay to show that he was aggrieved by the Bureau's conduct. Kay argues that Congress did not intend 308(b) to
be a "blank check" for requesting information. He further argues that compliance with a 308(b) Letter is voluntary and
that the Commission can issue a subpoena, enforceable in the federal courts, if it wants to compel disclosure. Kay char-
acterizes the 308(b) Letter as overbroad and excessively burdensome, requiring production of billing records, contracts,
and invoices regarding more than 150 facilities. In Kay's view, the Bureau should have limited its requests to the facili-
ties involved in specific complaints.
39. Additionally, Kay cites several mitigating factors. He observes that he provided some 38,000 documents after
designation for hearing, which demonstrates that he had no intention to deceive the Commission. He asserts that the
Bureau gave him ample reason to be concerned about confidentiality, especially in light of its apparent bad faith and
animosity towards Kay. Kay asserts that the Northridge earthquake severely disrupted his business, personal life, and
computer system, making it difficult for him to comply with the request. In this regard, he submits that compliance with
the request required three months of staff time.
40. We find that Kay violated his obligations under 47 U.S.C. § 308(b) and 47 C.F.R. § 1.17. Licensees have an ob-
ligation to respond to Commission inquiries. See Fox Television Stations, Inc., 10 FCC Rcd 8452, 8508 P139 (1995).
See also 47 C.F.R. § 1.17 ("The Commission or its representatives may, in writing, require . . . written statements of
fact. . . . No applicant, permittee or licensee shall in any response to Commission correspondence or inquiry . . . make
any . . . willful material omission bearing on any matter within the jurisdiction of the Commission.") We recognize that
a licensee must be free to assert a principled basis for resisting requests for information, such as a contention that the
information is privileged or that production would be unduly burdensome. However, a licensee's belief that the request
is immaterial under its own interpretation of law is not a sufficient basis for failing to answer questions. Fox Television
Stations, Inc., 10 FCC Rcd at 8508 PP138-39. "The Commission is not required to bargain with its licensees for the
information to which it is entitled in order properly to carry out its functions." Carol Music, Inc., 37 FCC 379, 384
(1964). Although the Commission has the authority to seek information by formal means, such as subpoena, where nec-
essary, the Commission expects its licensees to recognize its authority and to cooperate with staff-conducted informal
investigations. See PTL of Heritage Village, 71 FCC 2d 324, 329 P12 (1979). See also RKO General, Inc. v. FCC, 670
F.2d 215, 229 (D.C. Cir. 1981) ("As a licensing authority, the Commission is not expected to 'play procedural games
with those who come before it in order to ascertain the truth' . . . . license applicants may not indulge in common-law
pleading strategies of their own devise"). Moreover, the failure to provide information known to be relevant or a failure
to respond based on a facially implausible theory may constitute lack of candor. Fox Television Stations, Inc., 10 FCC
Rcd at 8508 PP137.
41. Kay's responses to the Bureau's inquiries disclosed virtually none of the information requested. He failed to
provide a list of calls signs based solely on his belief that the Bureau should look up the information itself and because
he declined to perform "secretarial sorting tasks." WTB Exh. 3 at 1. He declined to provide information about which of
his facilities were located on Forest Service land and whether he had permits for the use of such land, based on the un-
availing theory that the Commission lacked authority to inquire whether a licensee has obtained necessary governmental
authorizations, such as permits from the U.S. Forest Service. In fact, the Commission clearly has jurisdiction to deter-
mine whether licensees are violating federal permit requirements and whether the licensees have constructed facilities
without authorization. The case cited by Kay, Fort Collins Telecasters, 103 FCC 2d 978, 980-81 P3 (Rev. Bd. 1986),
does not hold, as Kay asserted in his response (WTB Exh. 3 at 2), that governmental consent to operation of a facility on
its land was irrelevant; it holds that the applicant in that case had demonstrated reasonable assurance of obtaining such
consent. See also Arizona Number One Radio, Inc., 103 FCC 2d 550, 553-54 PP3-4 (Rev. Bd. 1976). In any event, as
noted above, Kay's unilateral belief that the information is not relevant does not justify nondisclosure. His suggestion
that "if the Commission desires to ascertain [which facilities are located on U.S. Forest Service land], we respectfully
suggest that it may desire to plot each station on a map which shows the boundaries of the U.S. Forest Service land" was

inconsistent with the licensee's responsibilities and likely intended to be sarcastic rather than a legitimate suggestion. n8
Equally unavailing is Kay's response that he was not required to maintain certain records, such as documentation of
grant dates. WTB Exh. 3 at 2. Investigations frequently require examination of material not required to be maintained
by Commission rules. PTL of Heritage Village, 71 FCC 2d at 327 P8.
n8 We are similarly troubled by Kay's response to the Bureau's request that he explain the applicability of the copyright law to his use
of a copyright notice on his correspondence. Kay's former attorney [Dennis Brown] responded: ". . . we must respectfully decline to advise
the Commission concerning its obligations under the law of copyright. We can, if the Commission requests, refer the Commission to a firm
which practices in the field of copyright and with whose services some of our clients have expressed satisfaction." WTB Exh. 5 at 2. This re-
sponse is anything but "respectful."
42. Kay's failure to provide this information, as well as that regarding customers and loading was also based on
three more general rationales: (1) the argument that the requests were overbroad because they were not based on spe-
cific complaints, (2) concerns over confidentiality, and (3) issues regarding the burden and practicality of providing the
information. We disagree with Kay and with the ALJ's treatment of these factors. n9 As to the first issue, both Kay and
the ALJ rely on the following dictum in Stahlman v. FCC, 126 F.2d 124, 128 (D.C. Cir. 1942), as indicating that the
Bureau's inquiry was impermissibly broad:
. . . We do not mean to hold or to suggest that the Commission is authorized to require appellant or other
witnesses whom they may summon to bare their records, relevant or irrelevant, in the hope that some-
thing will turn up . . . but only that the Commission may, without interference, seek through an investiga-
tion of its own making information properly applicable to the legislative standards set up in the [Com-
munications] Act.
n9 The dissent asserts that the Commission should defer to Judge Chachkin's findings regarding the adequacy of Kay's responses to the
Bureau's 308(b) letter of inquiry. We, however, disagree with the legal standards applied by Judge Chachkin in evaluating Kay's responses
and therefore find that deference is unwarranted
43. We do not read that case as saying that the Commission may only seek information relevant to specific com-
plaints. We believe that it is reasonably within our discretion (and the Bureau's) to determine that the existence of nu-
merous complaints about a licensee may warrant a broad investigation of that licensee's compliance. See Tidewater Ra-
dio Show, Inc., 75 FCC 2d 670, 677 P15 (1980) (". . . full authority and power are given to the Commission to institute
an inquiry on its own motion, with or without complaint, as to any matter falling within its jurisdiction. [Footnote omit-
ted]. See Stahlman . . . . "). In any event, as noted above, Kay's unilateral belief that the Bureau's inquiry was overbroad
did not justify a failure to respond. If Kay objected to the scope of the Bureau's inquiry, he should have sought Commis-
sion review, as he did following designation for hearing. See James A. Kay. Jr., 13 FCC Rcd 16369 (1998).
44. We also disagree with the ALJ's treatment of confidentiality. The Commission's rules provide procedures under
which a person submitting information may request confidentiality. 47 C.F.R. § 0.459. These rules do not, however,
authorize a person to withhold information from the Commission on that basis. See 47 C.F.R. § 0.459(e) (where the
Commission denies a request for confidentiality, the person submitting the information may request its return only if the
material was submitted absent any direction by the Commission). Thus, Kay's concerns about confidentiality did not
justify withholding information. In any event, the Bureau twice expressly granted Kay's request for confidentiality.
WTN Exh. 6 at 1-2; WTB Exh. 10 at 1. The ALJ's extensive analysis of Kay's doubts about the Bureau's intention to
provide confidentiality (ID at PP16, 23-37, 45, 181) are beside the point. Whatever doubts Kay might have had did not
justify nondisclosure. As noted, Kay should have sought Commission intervention if he desired to pursue this issue.
45. As a related matter, Kay provides no support for justifying the withholding of information because the Com-
mission did not grant him immunity from criminal prosecution or forfeiture. Kay's lawyer [Dennis Brown] stated:
In view of the reason stated by the Commission [i.e., to determine Kay's qualifications to be a licen-
see] . . . please also assure us in writing that that the information requested will be used solely to deter-
mine whether Mr. Kay is qualified to be a licensee and that submission of the requested information will
immunize Mr. Kay against any forfeiture action by the Commission or any criminal prosecution."
Kay did not claim, however, that providing the requested information would, in fact, subject him to criminal prose-
cution in violation of his Fifth Amendment right against self-incrimination. See Lefkowitz v. Cunningham, 431 U.S.

801, 805 (1977) (the state may not compel testimony by threatening to impose administrative sanctions unless the con-
stitutional privilege against self-incrimination is surrendered). He therefore had no foundation for requesting immunity.
In any event, the right against self-incrimination applies only to the threat of criminal prosecution and not to administra-
tive or civil action, such as forfeiture. See United States v. Balsys, 524 U.S. 666, 671 (1998). Thus, Kay had no basis to
request immunity against forfeiture.
46. We reject Kay's suggestion, apparently endorsed by the ALJ, n10 that licensees of the channels in question here
are not required to track the loading on their facilities. The provisions of 47 C.F.R. § 90.135(a)(5) (1994), in effect at the
time, n11 specified that:
(a) The following changes in authorized stations require an application for modification of license:
....
(5) . . . for systems operating on non-exclusive assignments in the 470-512 MHz, 800 MHz or 900 MHz
bands, a change in the number of mobile transmitters . . . .
n10 See, e.g., ID at P179, in which the ALJ concludes: "Under the circumstances, Kay cannot be faulted for raising legal objections
and for failing to provide all of the information sought [involving all of Kay's 152 licenses]. In this connection, the findings establish that
Kay did not have the computer capability to provide the Bureau the information it sought." The ALJ thus treated Kay's failure to have a
computer system capable of tracking the loading on his stations as a mitigating circumstance.
n11 The section was later amended. See Biennial Regulatory Review, 13 FCC Rcd 21027 (1998).
47. In retaining this provision for shared channels, such as Kay's, while eliminating it for exclusive channels, the
Commission observed that the provision is intended "to maintain the integrity of our licensing records . . . . " Amend-
ment of Part 90 of the Commission's Rules, 7 FCC Rcd 6344, 6347 n.40 (1992). It clearly contemplates that the licensee
must keep track of the loading on its facilities in order to file the necessary modification applications so that the Com-
mission's records accurately reflect the availability of the channels. In that same report and order, which eliminated the
routine submission of end user lists, the Commission further noted:
Information regarding eligibility of end users and confirmation of whether a system is really serving
those end users or is "paper loading" are important parts of our spectrum management responsibilities.
These issues, however, generally arise in the context of compliance action and, in such instances, we ob-
tain information directly from the licensee, pursuant to [308(b)] . . . .
Id. at 6345 n.21. Moreover, for the shared channels involved in this case, it is appropriate to examine "snapshots" of
loading on particular days. The six-month averaging rule applicable to trunked SMR stations (47 C.F.R. § 90.658) does
not apply to conventional stations, because it is necessary to know whether the channels involved are available for
shared use. See Amendment of Part 90 of the Commission's Rules, 7 FCC Rcd 5558, 5562 P24 (1992). It should there-
fore come as no surprise to Kay or others to be required to produce such documentation. Over the past several years, the
Commission has attempted to reduce the routine reporting requirements of its licensees. As a result, operators, such as
Kay, do not have to submit annual or other periodic reports of their loading, such as the Commission otherwise might
have seen fit to impose in the past. The Commission has made clear, however, that licensees must be able to produce
such information when requested. Limiting the demand for such information to situations in which a licensee's compli-
ance has been questioned represents a reasonable balancing of the need for this information to effectuate the Commis-
sion's public interest responsibilities and the burden on licensees of submitting this information.
48. Although Kay's responses raised some legitimate points, such as the need to specify a relevant time period and
the practical difficulties involved in assembling large amounts of data, especially in light of the disruption caused by the
Northridge earthquake, they do not manifest a good faith intent to provide the requested information. The April 7,
1994 response asserts that as a result of fluctuations in use and other factors: ". . . at any given instant of time, Mr. Kay
may not know the number of mobile units operated on each of his stations." WTB Exh. 3 at 5. That response further
asserts:

. . . the Commission's Rules require a licensee to know the loading on a given channel only at the time he
requests additional channels or at the time he requests renewal of the authorization . . . . Since the Com-
mission's rules do not require Mr. Kay to know the loading on his stations except at those specified
times, we respectfully submit that the Commission is not authorized to request such information . . . .
Id. at 6.
49. On June 3, having been given additional time and clarification, Kay did not give an adequate response. He
merely indicated that: "Mr. Kay states that his business records substantiate that a total in excess of 7,000 mobile units
and control stations operate in association with all of the facilities which he and his companies own and operate." WTB
Exh. 9 at 3. When the Bureau aptly pointed out that this response was "hardly helpful" (WTB Exh. 10 at 1), Kay de-
clined to supply information as to loading on the specified date of January 31, 1994. He instead complained that the
Bureau did not specify the date and facilities involved in each individual complaint and stated that because of the con-
tinual churn of customers: "such information would neither prove nor disprove the complaints which served as the ex-
pressly stated basis for the [308(b) request]." WTB Exh. 11 at 5. Kay thus refused to provide information on the loading
of his systems generally.
50. Kay's failures to give productive responses to the Bureau's inquiries warrant a finding that he acted in a recalci-
trant manner in violation of 47 U.S.C. § 308(b) and 47 C.F.R. § 1.17, and thereby failed to meet his responsibilities as a
licensee. We note, in this regard, as did the ALJ, that the Bureau does not make the further case that Kay's responses
contained misrepresentations or lacked candor. The Bureau has not demonstrated that Kay's unresponsiveness reflected
a conscious intent to conceal known violations of the Commission's technical rules. n12 Accordingly, we do not deem
Kay's violations disqualifying. We will discuss the ultimate impact of his violations at paragraph 100, infra.
n12 As to the statement in the June 24 letter, that Kay did not operate stations other than those licensed to him, we believe that this
matter is best considered in the context of the misrepresentation issue. See paragraph 99, infra.
V. SYSTEM LOADING ISSUE

51. Of the various issues originally designated concerning the construction and operation of Kay's stations, only the
question of Kay's system loading remains before us. n13 The ALJ made findings concerning the legal relevance of sys-
tem loading, i.e., the number of mobile units operating in connection with a licensed facility. At relevant times, one of
the items on an application for a private carrier UHF repeater license or a conventional SMR 800 MHz repeater license
requested the number of mobile units to be authorized. ID at P85. Thus, Kay filed applications specifying the pertinent
number of mobile units. ID at P87.
n13 The ALJ made findings under an issue concerning the timely construction and permanent discontinuance of operation of Kay's fa-
cilities. He found that the parties stipulated that 69 facilities licensed under 53 call signs were not in operation as of May 11, 1995 and thus
subject to automatic cancellation. ID at PP219-222. See WTB Exh. 290. See also Wireless Telecommunications Bureau's Proposed Findings
of Fact and Conclusions of Law (WTB PF&C) at 44-46 PP107-08. Kay indicated that these facilities were control stations or secondary base
stations, rather than primary base stations. The ALJ accepted the Bureau's suggestion that these facilities be referred to the staff for "appro-
priate license maintenance." ID at P222. PF&C at 111 n.23. He therefore took no other action based on these findings and the Bureau sug-
gests no other action.
52. The ALJ found that the Bureau submitted into evidence two exhibits (WTB Exhs. 19 and 347) that were in-
tended to document the actual loading of Kay's licensed facilities in contrast to the numbers specified in Kay's applica-
tions and licenses. ID at P88. The data contained in these exhibits were derived from Kay's computer-based billing sys-
tem. The ALJ found that the billing system did not provide a complete or accurate accounting of the loading on Kay's
system. ID at PP88-89, 91-92. Of the 152 call signs at issue in this proceeding, the ALJ made findings as to the specific
number of mobiles operating on seven of Kay's trunked SMR systems, which he found to be fully loaded. ID at P90. He
made no findings as to the specific number of mobiles operating on any of Kay's non-trunked systems.
53. The ALJ rejected the Bureau's assertion that adverse findings should be made against Kay based on 47 C.F.R.
§§ 90.313 or 90.633, both relating to conventional (i.e., non-trunked) facilities. He concluded that these rules do not
impose loading requirements per se. ID at PP186-89.

54. According to the ALJ, the record does not show that Kay submitted any application that would have required
Kay to provide information as to the loading on a particular channel. The ALJ rejected the Bureau's assertion that Kay
did not maintain the information that would be needed to demonstrate loading in the event that he filed such an applica-
tion. According to the ALJ, Kay could have made such a showing based on his billing system and various paper records,
although it was impractical for him to do so for all 152 stations at once, as the Bureau required. ID at P190.
55. The ALJ further found that, even assuming that the rules contained a specific loading requirement, the Bureau
used invalid means to measure Kay's loading. In the ALJ's view, loading cannot validly be measured based on a snap-
shop of a single point in time. Rather, loading should be measured based on average loading over a six month period. ID
at P191. Moreover, the ALJ found that the Bureau erred in measuring [*1852] loading based solely on Kay's comput-
erized billing records and ignoring other, paper records that Kay disclosed. The ALJ found that the billing records did
not include "loaner" or "demo" units, did not include non-current customers, and did not take into account access to
multiple repeater sites. ID at PP88-89, 192-93.
56. Finally, the ALJ found that the Bureau had failed to demonstrate that Kay violated 47 C.F.R. § 90.135, which,
in any event, was not mentioned in the Commission's hearing designation order. That section requires certain licensees
to modify their licenses to reflect a reduction in the number of mobile units. He held that, for the reasons discussed
above, the Bureau failed to make a valid demonstration that Kay's facilities were underutilized. He also held that the
Bureau had not shown when Kay was supposed to seek modification of his licenses. ID at PP194-98.
57. The Bureau asserts that the ALJ failed to appreciate the significance of Kay's underutilization of his facilities.
The Bureau observes that the channels in question are used on a shared basis. According to the Bureau, it is fundamen-
tal to the licensing of shared channels that licensees must not seek to retain unused authorizations. In this regard, the
Bureau claims that the data disclosed by Kay indicate that the number of mobile units actually used in connection with
his facilities is several thousand less than authorized. The Bureau asserts that the various factors cited by the ALJ do not
begin to account for a shortfall of this magnitude, indicating that Kay had no intention of sharing the channels in ques-
tion. The Bureau maintains that Kay had an obligation under the rules to substantiate the loading on his facilities.
58. Kay replies that the Bureau has not shown when he would be required to amend his authorizations to reflect re-
ductions in the number of mobile units served and argues that he should not be required to amend to show temporary
fluctuations in use. He further argues that the Bureau ignores factors that explain the apparent shortfall in utilization,
such as economic conditions, the need to consult records other than billing records, and channel sharing.
59. We have no basis to find that Kay violated either 47 C.F.R. § 90.313 or 47 C.F.R. § 90.633. As the ALJ cor-
rectly notes, neither of these rules imposes any specific requirements on licensees. Section 90.313, applicable to the
470-512 MHz band, provides that until a channel is loaded to 90 mobile units it will be available for assignment to other
users in the same area on a shared basis. Section 90.633 similarly provides for SMR facilities that where a channel is not
loaded to 70 mobile units it will be available for assignment to other users. As the Bureau suggests, the application of
these rules requires that the Commission's licensing records accurately reflect whether the channels are loaded to the
benchmarks specified in the rules, and thus whether they are available for sharing. The relevant provisions do not, how-
ever, contain any language imposing a particular duty on individual licensees in this regard. The Bureau offers no sup-
port for its assertion that: "To comply with these rule sections (i.e., §§ 90.313 and 90.633), a licensee must not seek or
retain authorization for unused slots." Wireless Telecommunications Bureau's Exceptions and Brief at 12.
60. Rather, as discussed in paragraphs 46-47, supra, the provisions of 47 C.F.R. § 90.135(a)(5) (1994), which dur-
ing the relevant time period, required licensees on shared channels to seek modification of license to reflect changes in
loading, protected the integrity of the Commission's licensing records in this regard. The Bureau's attempted showing
that Kay's actual loading did not conform to that specified in his licenses appears relevant to Kay's compliance with §
90.135. This provision was not, however, included in the hearing designation order, and the Bureau expressly denies
that it is attempting to demonstrate a violation of 47 C.F.R. § 90.135:
Contrary to the conclusion at I.D., PP194-195, the Bureau never sought to present evidence to prove a
Section 90.135 issue that was never designated. The evidence presented by the Bureau demonstrated vio-
lations of Sections 90.313 and 90.633, the rules that require channel sharing. The fact that the Bureau's
evidence would also support a showing that Section 90.135 was violated is inconsequential.

Wireless Telecommunications Bureau's Exceptions and Brief at 14 n.10. The difficulty with the Bureau's statement is
that the relevant provisions of 47 C.F.R. §§ 90.313 and 90.633 do not impose any explicit requirements on licensees.
61. We decline to consider the issue of Kay's § 90.135 compliance absent the designation of an issue. n14 To do so
would risk depriving Kay of basic due process rights. See RKO General, Inc. v. FCC, 670 F.2d 215, 229 (D.C. Cir.
1981) (". . . reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are
'basic to our system of jurisprudence. . . . '"). Moreover, 47 U.S.C. § 503 (b)(4) requires that forfeitures may be imposed
only pursuant to a notice of apparent liability that shall "identify each specific provision, term, and condition of any . . .
rule . . . which such person apparently violated or with which such person failed to comply. . . . " We will therefore not
address this matter further. n15
n14 As our discussion at paragraphs 46-47, supra, suggests, however, we disagree with the ALJ's analysis with regard to Kay's obliga-
tions under § 90.135. We believe that the rules clearly required Kay to track the loading of his facilities and to seek modification of his li-
censes to reflect changes in loading. We expect Kay to comply with all relevant rules in the future with respect to his remaining UHF sta-
tions.
n15 Because we do not reach the merits of the loading issue, Kay's Motion for Leave to File Supplement to Reply Exceptions, which
seeks to further address this issue, is moot and will be dismissed.
VI. ABUSE OF PROCESS ISSUE

62. The ALJ made findings concerning allegations that Kay filed applications in multiple names to avoid compli-
ance with the Commission's channel sharing and recovery provisions. He found that four individuals testified that Kay
had engaged in relevant conduct.
63. Roy Jensen was a former general manager of Southland from 1990-92. He testified that Kay asked him to sign
an application for a land mobile end user license in the name of Roy Jensen dba Consolidated Financial Holdings. Jen-
sen denied that Consolidated Financial Holdings ever operated any radio devices and denies that he intended to operate
37 mobile units, as specified in the application. ID at PP94-96. Kay testified that he intended to help Jensen pursue his
own business interests. ID at P97.
64. Kevin Hessman was an employee of Southland from 1990-93 and a friend of Jensen's. Hessman testified that
Kay and Jensen approached him and asked him to sign some FCC application forms to "help [Kay] . . . . " Hessman
claims that the entity specified on the license, Hessman Securities, did not exist and never operated mobiles. ID at
PP99-102. Kay testified that Hessman approached him to use radio devices in connection with an off-hours security
operation. ID at P104.
65. Vincent Cordaro worked for Southland from 1991-95 in various capacities including general manager. He for-
merly owned his own two-way radio business. In November/December, 1994 Kay and Cordaro entered into a "Radio
System Management and Marketing Agreement" under which Kay would manage a repeater station licensed to
Cordaro. A few months earlier, in April 1994, Kay filed an application (which was, however, dated November 11,
1992) for the assignment of the repeater station from Cordaro to Kay. Cordaro claimed that Kay induced him to sign a
blank application form and did not consent to the assignment. He also testified that Kay had asked him to sign blank
forms on other occasions. ID at PP107-13. Kay participated in filing applications in the name of Vince Cordaro dba
VSC Enterprises. Cordaro testified that VSC in fact never used radio devices. ID at PP115-16, 121.
66. Carla Marie Pfeifer and Kay were friends. In 1990, Kay assisted Pfeifer in obtaining a repeater license, pursuant
to an arrangement under which Kay constructed the station and marketed its services. Kay and Pfeifer shared in the
revenues. A number of documents were entered into evidence that purported to bear Pfeifer's signature, but, as to which,
Pfeifer questioned whether the signature was hers. Kay denied signing any document in Pfeifer's name. ID at PP125-30.
67. The ALJ found that Kay had a factual basis for believing that Jensen, Hessman, and Cordaro were engaged in
or intended to engage in their own pursuits in which they desired to use radios. ID at P201. He also questioned the
credibility of these witnesses. He found that both Jensen and Hessman made misrepresentations to the Office of Appeals
of the California Unemployment Insurance Appeals Board regarding the circumstances of their discharge from Kay's
employ. ID at PP98, 106, 202. Additionally, the ALJ found that Cordaro had filed a sworn statement with the Commis-
sion in another proceeding inconsistent with his testimony in this proceeding that he was not using radio devices as part
of his independent business activities. ID at PP121-22, 202. Although the ALJ did not question Pfeifer's veracity, he
nevertheless questioned whether she was a reliable witness because of her vague and incomplete recollection. ID at

PP128-29, 203. Additionally, the ALJ found that Kay had not attempted to conceal his involvement in various applica-
tions. ID at P204. He also found that the Bureau had not shown that Kay was ineligible to apply for the facilities in
question in his own name. Thus, according to the ALJ, the Bureau failed to show that Kay had a motive to abuse the
Commission's processes. ID at PP205-07.
68. The Bureau faults the ALJ for discounting the testimony of Jensen, Hessman, Cordaro and Pfeifer. The Bureau
suggests that even if there is reason to question their credibility individually, the consistency of their testimony should
be taken into account. Moreover, the Bureau asserts that the circumstances indicate that Jensen, Hessman, and Cordaro
really did not require radio devices. The Bureau accuses the ALJ of ignoring evidence that Pfeifer and Cordaro were not
involved in the management of stations supposedly licensed to them and were simply surrogates for Kay. The Bureau
denies that it needed to show a motive for Kay's abuse of process.
69. Kay retorts that the ALJ had ample reason to credit Kay's testimony over that of Jensen, Hessman, Cordaro, and
Pfeifer. He denies that he had a motive to abuse the Commission's processes and claims that he made no attempt to con-
ceal his involvement in the various applications. He characterizes the Bureau's position as mere speculation.
70. This issue presents a difficult factual question. In many respects, it boils down to a determination of the relative
credibility of Kay and his chief accusers, Jensen, Hessman, and Cordaro. Under these circumstances, the ALJ's findings
concerning the relative credibility of witnesses are generally entitled to great weight. See, e.g., TeleSTAR, Inc., 2 FCC
Rcd 5, 13 P23 (Rev. Bd. 1987), citing Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078-80 (9th Cir. 1977) (ad-
ministrative law judges' factual determinations based on testimonial inferences are entitled to special deference). Here,
however, the Bureau correctly points to factors that tend to undermine the ALJ's treatment of this issue. The fact that
three independent witnesses testified consistently concerning Kay tends to bolster their crediblity. See Black Television
Workshop of Los Angeles, Inc., 8 FCC Rcd 4192, 4194-95 P19 (1993). Moreover, we are unable to discern the eviden-
tiary foundation for the ALJ's conclusion that "the undisputed record establishes" that Kay had a "factual basis" to be-
lieve that Jensen, Hessman, and Cordaro "were engaged in or intended to engage in pursuits beyond the scope of their
employment by Kay in which they desired to use Kay's radios and repeaters." ID at P201 citing Kay's Proposed Find-
ings of Fact and Conclusions of Law at PP95-97, 104, 115. As the Bureau aptly observes, Jensen, Hessman, and
Cordaro denied that they had any need for the authorizations applied for, and there is no independent evidence that they
did. Tr. 1488, 1797, 1844. Nevertheless, because this issue depends critically on an evaluation of Kay's state of mind, as
to which the ALJ's demeanor findings have considerable weight, as well as his conduct, we are reluctant to overturn the
ALJ's assessment of Kay's testimony based solely on the circumstances set forth above. Moreover, like the ALJ, we find
that the record does not sufficiently demonstrate that Kay had a motive for abusing the Commission's processes in this
context. We note, however, that evidence under this issue concerning Kay's agreements with Pfeifer, and Cordaro re-
flects a pattern of conduct, relevant to the de facto control and misrepresentation issues, and we will consider it in that
context.
VII. DE FACTO CONTROL/MISREPRESENTATION ISSUES
71. Judge Sippel, the original presiding judge in this proceeding, added the following issues:
To determine, based on the findings and conclusions of Initial Decision FCC 97D-13 reached in WT
Docket No. 97-56 concerning James A. Kay, Jr.'s (Kay) participation in an unauthorized transfer of con-
trol, whether Kay is basically qualified to be a Commission licensee.
To determine whether James A. Kay, Jr. misrepresented facts or lacked candor in presenting a Motion To
Enlarge, Change, or Delete Issues that was filed by Kay on January 12, 1995, and January 25, 1995.
To determine whether in light of the evidence adduced under the aforementioned

added issues whether James A. Kay, Jr. is qualified to hold a Commission license.
James A. Kay, Jr., FCC 98M-15 (Feb. 2, 1998).

72. In WT Docket No. 97-56, then Administrative Law Judge John M. Frysiak n16 concluded that Marc Sobel was
unqualified to be a Commission licensee because he had transferred control of 15 SMR stations to Kay without authori-
zation. Marc Sobel, 12 FCC Rcd 22879 (ALJ 1997). He found that the transfer occurred pursuant to an arrangement
between Sobel and Kay reflected in a document called "Radio System Management Agreement and Marketing Agree-

ment" (Management Agreement). Marc Sobel, 12 FCC Rcd at 22899-900 PP65-68. Pursuant to this arrangement, Kay
managed the stations, paid the station's construction and operating expenses, and shared the revenues of the stations.
Kay also had a purchase option for the stations. The ALJ found based on an analysis of the facts and circumstances sur-
rounding Kay's management of the stations that Kay had ultimate control of the facilities.
n16 Judge Frysiak retired on December 31, 1999.
73. Judge Frysiak, in the Sobel proceeding, further found that an affidavit executed by Sobel in connection with a
Motion To Enlarge, Change, or Delete Issues that was filed by Kay in this proceeding, misrepresented Kay's relation-
ship to the Management Agreement stations. Marc Sobel, 12 FCC Rcd at 22900-902 PP69-78. Kay had filed the motion
in this proceeding because the Commission had initially included 11 licenses held by Sobel in the hearing designation
order in this proceeding (WT Docket No. 94-147), based on the belief that Kay was doing business in Sobel's name.
James A. Kay, Jr., 10 FCC Rcd at 2063 P3.
74. The affidavit stated:
I, Marc Sobel, am an individual, entirely separate and apart in existence and identity from James A. Kay,
Jr. Mr. Kay does not do business in my name and I do not do business in his name. Mr. Kay has no inter-
est in any radio station or license of which I am the licensee. I have no interest in any radio station or li-
cense of which Mr. Kay is the licensee. I am not an employer or employee of Mr. Kay, am not a partner
with Mr. Kay in any enterprise, and am not a shareholder in any corporation in which Mr. Kay holds an
interest. I am not related to Mr. Kay in any way by birth or marriage.
12 FCC Rcd at 22893-94 P51.

75. Judge Frysiak found that the affidavit and pleading did not provide any description of the actual relationship be-
tween Sobel and Kay, although it was purportedly prepared in part because Sobel believed that the Commission was
delaying the processing of his pending applications due to confusion about the relationship between Sobel and Kay. 12
FCC Rcd at 22894-95 PP52-53. The ALJ rejected as false the statement in the affidavit that Kay had no "interest" in
stations or licenses assertedly held by Sobel. The ALJ did not credit Sobel's attempts to reconcile this statement with the
fact that Kay owned the stations' equipment, had an option to purchase the stations, and had a stake in the stations' reve-
nues, holding that this arrangement constituted "a fair amount of interest." 12 FCC Rcd at 22895-96 PP56-58, 22901
P73. The ALJ concluded that the affidavit was intended to "ward off" the Commission from being apprised of the true
nature of the Kay-Sobel business relationship and that it therefore lacked candor. 12 FCC Rcd at 22901 P73.
76. Judge Frysiak further found that Sobel also lacked candor both by failing to submit voluntarily the Management
Agreement to the Commission and in correspondence with the Commission. 12 FCC at 22897 P62, 22901-02 P74. The
ALJ therefore revoked Sobel's licenses, denied his applications, and dismissed his finder's preference requests.
77. Based on the foregoing, Judge Sippel held that the issue of control in the Sobel proceeding should not be reliti-
gated in this proceeding and that Kay should be permitted to offer evidence only on the issue of whether his exercise of
control over the Sobel stations has an impact on his qualifications to hold a Commission license. FCC 98M-15 at P5.
As to the issue of misrepresentation, Judge Sippel ruled that the initial decision in WT Docket No. 97-56 raised a sub-
stantial question of misrepresentation or lack of candor and provided the factual basis for adding an issue against Kay.
Id. at PP6-11.
78. In his initial decision in this proceeding, Chief Judge Chachkin observed that the issues as framed did not per-
mit him to make independent findings as to whether the Management Agreement constituted an unauthorized transfer of
control. n17 ID at n.48. In any event, however, the ALJ found that an unauthorized transfer was not disqualifying mis-
conduct unless accompanied by deception. ID at P211. He found that in this case Kay did not intend to conceal the
Management Agreement, since he voluntarily gave a copy to the Bureau on March 24, 1995, after this case was desig-
nated for hearing, in response to a Bureau discovery request. ID at PP165, 213. He also found that Kay and Sobel had
been advised by counsel that the Management Agreement complied with FCC requirements. ID at PP161, 213. The ALJ
therefore found no basis to impose sanctions against Kay.

n17 Despite this acknowledgment, Judge Chachkin made 35 paragraphs of findings (ID at PP143-74) that largely overlap Judge Frysi-
aks's findings in the Sobel proceeding, and also questioned the legal standard applied by Judge Frysiak (ID at n.48). Because Kay was a
party to the Sobel proceeding and had a full opportunity to litigate the transfer of control issue there, we have not set forth Chief Judge
Chachkin's duplicative findings at length. In our review of the Sobel proceeding, discussed at paragraph 85, infra, we address the question of
the relevant legal standard.
79. As to the issue of misrepresentations, Judge Chachkin found that Judge Frysiak's initial decision in the Sobel
proceeding was "tainted" because the Bureau misrepresented to Judge Frysiak that Sobel did not disclose the Manage-
ment Agreement until his July 3, 1996 response to a 308(b) letter from the Bureau, and that the Bureau concealed from
Judge Frysiak that Kay voluntarily disclosed the Management Agreement to the Bureau during discovery in March
1995. ID at PP168-69, 210.
80. Turning to the specific facts, the ALJ found that Kay's allegedly false statement with respect to this matter oc-
curred in the Motion to Enlarge, Change, or Delete Issues filed by Kay on January 12 and 25, 1995. See Paragraph 73,
supra. Kay's motion states:
James A. Kay, Jr. is an individual. Marc Sobel is a different individual. Kay does not do business in the
name of Marc Sobel or use Sobel's name in any way. As shown by the affidavit of Marc Sobel attached
as Exhibit II, hereto, Kay has no interest in any of the licenses or stations held by Marc Sobel. Marc So-
bel has no interest in any of the licenses or stations authorized to Kay or any business entity in which
Kay holds an interest. Because Kay has no interest in any license or station in common with Marc Sobel
and because Sobel was not named as a party to the instant proceeding, the presiding officer should either
change the HDO to delete the reference to the stations [licensed to Sobel] or should dismiss the HDO
with respect to those stations.
ID at P170; WTB Exh 343 at 3-4.

81. The ALJ found that Kay understood that his lawyers meant that Kay had no "interest" in the sense that Kay had
no legal or ownership interest in the licenses, such as by being a partner. Kay testified that he and his then attorney,
Brown, used the terms "license" and "station" interchangeably. ID at P171. The ALJ also found that the motion was not
primarily intended to address the Management Agreement, since only two of the 11 stations sought to be deleted were
Management Agreement stations. Moreover, Kay's lawyer specifically advised him that the Management Agreement
did not constitute an "interest." ID at P172. The ALJ found that Kay and Sobel testified in a candid and forthright man-
ner. ID at P173. Additionally, he found that Kay had disclosed the Management Agreement in March 1995 during dis-
covery. ID at P174. The ALJ observed that the Bureau did not seek the addition of a misrepresentation issue against
Sobel until April 1997. ID at P174, n.31.
82. The ALJ concluded that Kay had not attempted to deceive the Commission. The ALJ found that Kay believed
that the statement concerning "interest" was accurate and did not attempt to conceal the Management Agreement. In the
absence of deceptive intent, the ALJ resolved the misrepresentation issue in Kay's favor. ID at PP214-18.
83. The Bureau observes that the ALJ's treatment of this issue is inconsistent with Judge Frysiak's analysis in the
Sobel proceeding. The Bureau claims that Judge Frysiak was aware of the disclosure of the Management Agreement in
March 1995, but considered the disclosure outside the relevant time period (since the Management Agreement was not
disclosed until two months after Sobel's affidavit was submitted in January 1995). The Bureau contends that the state-
ment that Kay had no "interest" in Sobel's stations is plainly false in light of the financial claims he had under the Man-
agement Agreement and that Kay's attempts to reconcile the statement are unpersuasive. The Bureau asserts that Kay
had no basis for his claimed reliance on counsel and that he deceitfully intended to conceal his relationship with Sobel
from the Commission.
84. Kay maintains that the motion reflects no intent to deceive. According to Kay, the motion merely intended to
show that, contrary to the representation in the hearing designation order, Kay did not conduct business in Sobel's name.
Kay observes that only two of the 11 stations listed in the hearing designation order were Management Agreement sta-
tions. He asserts that arguments over the meaning of the words "interest" and the like are merely quibbles. Kay observes
that he disclosed the Management Agreement during discovery and suggests that he would not even have put it in writ-

ing if he intended to deceive the Commission. He also argues that he legitimately relied on advice of counsel. Kay
maintains that the Bureau has been disingenuous about his disclosure of the Management Agreement in March 1995.
85. In a companion decision to this one, we have today ruled on exceptions filed by Sobel and Kay to the initial de-
cision in WT Docket No. 97-56. Marc Sobel, FCC 01-342 (adopted Nov. 20, 2001) (Decision). Because Kay is a party
in WT Docket No. 97-56, he is bound by the determinations made in that proceeding to the extent that they involve
findings and conclusions common to the two proceedings. See Westel Samoa, Inc., 13 FCC Rcd 6342, 6346 P13 (1998)
(doctrine of collateral estoppel). In the Sobel decision, we affirmed the ALJ's determination that under the Management
Agreement, Sobel transferred de facto control of his facilities to Kay without Commission authorization. We noted that
some ambiguity existed as to the applicable standard for determining control in this context and found that the same
result obtained under the holdings of both Intermountain Microwave, 24 RR 98 (1963) (which we intend to apply in the
future) and Motorola, Inc., File Nos. 50705 (PRB 1985) (unpublished). Decision at PP52-59.
86. We further found that Sobel's January 24, 1995 affidavit lacked candor. In this regard, we were not swayed by
Chief Judge Chachkin's finding in this proceeding that "Kay and Sobel testified in this proceeding and answered ques-
tions put to them in a candid and forthright manner. Their testimony that they did not intend to deceive the Commission
concerning their business dealings is entirely candid and is accepted." ID at P173. These findings are not entitled to def-
erence (see paragraph 70, supra) in view of the fact that Judge Frysiak, who heard essentially the same testimony in the
Sobel proceeding, clearly did not find these witnesses credible. We believe that the existence of these conflicting find-
ings bears on whether such findings are supported by substantial evidence. See, e.g., Bauzo v. Bown, 803 F.2d 917, 922
(7th Cir. 1986). In view of the apparent conflict between the two judges' assessment of the witnesses' credibility, we did
not defer to either ALJ but based our decision on our own independent assessment of the nature of the representations
made and the circumstances that were involved. n18
n18 The dissent suggests that a new hearing should be held to allow a new ALJ to make credibility findings. We believe that no further
hearing is necessary given the Commission's power of de novo review. See FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 364-65
(1955); Parker v. Bowen, 788 F.2d 1512, 1520 (11th Cir. 1986); Moore v. Ross, 687 F.2d 604, 608-09 (2d Cir. 1982) (agency has the power
to make findings of fact in the first instance and is not bound by the credibility determinations of an ALJ). Moreover, additional hearings
would be wasteful and time consuming. No matter how the new ALJ ruled, there would still be conflicting credibility determinations that the
Commission would have to resolve. We don't, for example, see a justification for adopting an automatic "majority rules" policy. We there-
fore choose to exercise our power of de novo review.
87. In this regard, we do not accept Kay's suggestion that Judge Frysiak's evaluation of the witnesses' credibility
should be accorded less weight than Chief Judge Chachkin's because the former's initial decision was "tainted." Kay
bases this contention on Chief Judge Chachkin's finding that:
Judge Frysiak's decision was tainted because the Bureau deliberately concealed the fact that Kay had
given a copy of the Management Agreement to the Bureau on March 24, 1995. Thus, in reaching his
conclusion, the Judge was unaware of the March 24, 1995 filing and erroneously assumed that the Com-
mission first received a copy of the Management Agreement on July 3, 1996.
ID at P169. See also ID at P210. Chief Judge Chachkin also listed several pleadings and orders, which he found, dem-
onstrated the Bureau's "elaborate scheme" to conceal the March 24, 1995 submission from Judge Frysiak. ID at P169.
88. Our examination of the record, however, provides no support for the assertion that Judge Frysiak's decision was
"tainted" or that the Bureau engaged in an "elaborate scheme." Initially, we find no reason to believe that Judge Frysiak
would have changed his view of Sobel's state of mind based on the March 1995 submission. He had already ruled that
the relevant timeframe for determining Sobel's state of mind was when Sobel executed his affidavit in January 1995, not
afterwards. Tr. WT Docket No. 97-56 at 297-99. The mere fact that the Management Agreement was produced in dis-
covery in March 1995 thus would not have had material impact on Judge Frysiak's analysis.
89. The record also undercuts the suggestion that the Bureau engaged in an "elaborate scheme" to conceal the
March 1995 submission from Judge Frysiak, inasmuch as Sobel himself could readily inform Judge Frysiak of the sub-
mission and did so explicitly at least twice during the proceeding. During discovery, Sobel sought the Bureau's admis-
sion that: "A copy of the Radio System Management and Marketing Agreement . . . has been in the possession of the

Bureau since 24 March 1995." Sobel's Request for Admission of Facts and Genuineness of Documents by the Bureau,
filed March 19, 1997 at 3 P7. Judge Frysiak denied Sobel's requested admission as irrelevant, based on the timing of the
disclosure. (see paragraph 88, supra). See Marc Sobel, FCC 97M-57 (Apr. 17, 1997). n19 Later, the Bureau sought the
addition of the misrepresentation/lack of candor issue now under discussion. (The hearing designation order in the Sobel
proceeding specified only the transfer of control issue.) Sobel argued in opposition that he could not have intended to
deceive the Commission because he: ". . . was aware that Kay intended to produce a copy of the agreement in response
to Bureau discovery requests and assumed that this had already been done." Opposition to the Bureau's Motion to
Enlarge Issues, filed April 21, 1997 at 5 n.8. Apparently referring to his earlier request for admission, Sobel further
stated:
Sobel has attempted in discovery in this proceeding to determine precisely when the Bureau became
aware of and received a copy of the agreement, but the Bureau has thus far refused to provide such in-
formation.
Id. As the request for admission filed a month earlier indicated, however, Sobel already knew the precise date; the Bu-
reau did not conceal it.
n19 The dissent suggests that it is not possible to assess after the fact the potential impact of the March 1995 disclosure on Judge Fry-
siak's decision. We see no reason, however, to disregard Judge Frysiak's own rulings discounting the significance of subsequent disclosure of
the Management Agreement. Moreover, the ultimate question, of course, is not whether Judge Frysiak would have reached a different deci-
sion, but whether the record, on review, warrants a different decision. In this regard, as indicated below, our evaluation of the record as a
whole is consistent with Judge Frysiak's assessment that Kay and Sobel made intentional deceptive representations about their relationship,
notwithstanding the March 1995 disclosure.
90. At the hearing Sobel had the opportunity to testify as to this point. Sobel testified that at the time he signed the
affidavit he expected that the Bureau would obtain a copy of the Management Agreement or become aware of it, if they
had not already done so. Tr. WT Docket No. 97-56 at 302. Judge Frysiak then asked Sobel whether he filed the Man-
agement Agreement with the Commission. Sobel answered that Kay filed it along with the January 1995 motion. Tr.
WT Docket No. 97-56 at 303. Sobel's attorney (who represents Kay in this proceeding) stipulated that Sobel was incor-
rect in this assertion, without mentioning the March 1995 submission. Id. Later, Bureau counsel specifically asked So-
bel: "when was the first time you provided a copy of [the] management agreement to the Commission." Tr. WT Docket
No. 97-56 at 313. Sobel responded: "In reference to the Commission's request for information under 308(b)." Id. Sobel's
attorney (Kay's here) stipulated that the date was July 3, 1996, again without mentioning the March 1995 submission.
Tr. WT Docket No. 97-56 at 314.
91. Judge Frysiak's finding that: ". . . Sobel did not submit the Management Agreement to the Commission until
July 3, 1996 . . . . " (12 FCC Rcd at 22897 P62) was based on and consistent with the above-cited evidence. It does ap-
pear that neither the Bureau n20 nor Judge Frysiak addressed Sobel's contention in a footnote to his reply findings and
conclusions, that:
The Presiding ALJ may take official notice that a copy of the written agreement was produced to the
Commission on 24 March 1995, as an attachment to Kay's Responses to Wireless Telecommunications
Bureau's First Request for Documents in WT Docket No. 94-147, the Kay license revocation proceeding.
Reply to the Wireless Telecommunications Bureau's Proposed Findings of Fact and Conclusions of Law, filed October
27, 1997 at 9 n. 5. n21 The record does not disclose why the Bureau and Judge Frysiak did not address this footnote. As
explained in paragraph 88, supra, however, we have no basis to find that this omission had a material impact on Judge
Frysiak's initial decision. Moreover, the Bureau could hardly have "concealed" the footnote, especially since the Bureau
discussed and cited the paragraph containing the footnote in its reply. Wireless Telecommunications Bureau's Com-
ments on Replies to Proposed Findings of Fact and Conclusions of Law, filed October 31, 1997 at 5-6 P9.

n20 The Bureau stated in its reply to the relevant pleading that: "None of Sobel's or Kay's filings in 1994 or 1995 disclosed the rela-
tionship between Sobel and Kay with respect to the Management Agreement stations." Wireless Telecommunications Bureau's Comments
on Replies to Proposed Findings of Fact and Conclusions of Law, filed October 31, 1997 at 3 P4. The record does not disclose whether the
Bureau believed that the production of the Management Agreement in discovery on March 24, 1995 was not a "filing," or whether the Bu-
reau inadvertently overlooked the March 24, 1995 submission in making this statement.
n21 The associated text in the body of the pleading states: "By this time [when the Commission modified the hearing designation order
to delete Sobel's stations], the Bureau had been provided, in discovery, with a copy of the written agreement between Sobel and Kay."
92. In our decision, we found that Sobel's affidavit went beyond denying that Sobel was Kay's alter ego and made
several factual assertions that were misleading. Most notably, we found that the claim that Kay had no "interest" in
[**74] Sobel's stations was false in light of the substantial financial interests he had under the Management Agreement.
Decision at P71. We also found that several other statements, while perhaps technically correct, tended to be mislead-
ing, such as that Sobel was not an "employee" or "partner" of Kay. Id. at P73. We found that, in light of the facts as
fully disclosed, the affidavit, and the pleading it supported, left the false impression that ". . . Kay has no interest in any
license or station in common with Marc Sobel . . . . " Id. at P74.
93. We found that Sobel appreciated the questionable nature of the claim that Kay had no "interest" in his stations,
since Kay had told him that the word connoted "a direct financial stake." Decision at P72. Additionally, we found that
Sobel and Kay understood that the Commission would want to know the true relationship between them. Id. at P74-75.
Because Sobel could appreciate the nature of the representation, we rejected his attempt to rely on advice of counsel. Id.
at P77.
94. In determining the sanction to be imposed against Sobel, we found that an unauthorized transfer of control ac-
companied by deception constituted disqualifying misconduct. Decision at P80. We took into account, however, that the
Management Agreement and the misleading affidavit concerned only some of Sobel's facilities and that he had operated
most of his facilities for over twenty years without any record of misconduct. Id. at P80. We therefore revoked or denied
only those facilities on the 800 MHz band, the band on which the Management Agreement Stations operated.
95. We find that our conclusions regarding Sobel reflect adversely on Kay. The representations that we found false
and misleading were made in a pleading filed by Kay. For the reasons discussed in the Sobel decision (Decision at P74),
we reject Kay's argument that the case against him represents mere "quibbles" over the meaning of the words used. We
do not believe that a reasonable reader could square the language used with the facts as fully disclosed. Moreover, Kay,
like Sobel, understood the questionable nature of the claim that he had no "interest" in Sobel's stations and knew that the
Commission would want to know the true relationship between Sobel and Kay. Accordingly, Kay too has no basis to
rely on advice of counsel as a defense.
96. We also reject Kay's argument that his disclosure of the Management Agreement during discovery negates any
possible intent to deceive. While Kay subsequently disclosed the Management Agreement after specifically being re-
quested by the Bureau during discovery to produce all management documents, he did not disclose the Management
Agreement in connection with the pleading at issue here (submitted two months earlier), although it would have served
to clarify his relationship with Sobel. See Wireless Telecommunications Bureau's First Request for Documents, filed
February 17, 1995, at 6-7 P12 (requesting all management documents).
97. Moreover, a finding that Kay deliberately intended to conceal his relationship with Sobel is consistent with
other instances in the record indicating that Kay was not forthcoming about stations he managed. For example, begin-
ning in the early 1990s, Kay managed stations that were licensed to Pfeifer, Cordaro, and Sobel. ID at PP108-09, 123-
24, 126. In Pfeifer's case, the ALJ found that in 1987, Kay assisted Pfeifer in obtaining a license pursuant to an ar-
rangement whereby Kay was to construct the station and market service when it was filled with users. ID at P126. The
ALJ did not question Pfeifer's testimony n22 that, to document to the Commission that the station had been constructed,
Kay prepared an invoice (WTB Exh. 301) and had Pfeifer issue a check (WTB Exh. 302) for $ 1,511.87, but had then
reimbursed Pfeifer for the amount of the check. Tr. 1556-57. The purported payment was thus not a real payment but
was designed merely to generate documentation for the Commission. Although Pfeifer and Kay entered into a lease
agreement calling for Pfeifer to pay Kay $ 600 a month rent for the transmitter site (WTB Exh. 300), Pfeifer testified
that Kay did not actually expect any payment. Tr. 1544-45. Pfeifer testified that Kay told her he "needed to have [the
lease] to comply with FCC regulations." Tr. 1544.
n22 The ALJ did not question Pfeifer's credibility, although he did question her "reliability" as to some matters. ID at P203.

98. Similarly, the record in the Sobel proceeding showed that Kay prepared responses to application return notices
(which are sent to indicate problems with land mobile applications) on Sobel's behalf. On customer invoices attached to
the responses, Kay blacked out the name of his business, "Lucky's Two-Way Radios." Marc Sobel, 12 FCC Rcd at
22898-99 P64, 22902 P76. n23
n23 We found that this matter was irrelevant with respect to Sobel because Kay, not Sobel, had blacked out the information. Decision
at n.6. We believe it is relevant here as demonstrating a pattern of conduct. We therefore reverse Judge Chachkin's rejection of WTB Exhs.
332-33 based on his determination that this matter was irrelevant to the alleged misconduct here. See Tr. 783-90.
99. Finally, Kay's June 2, 1994, response to the Bureau's 308(b) Letter contained the following language: "Mr. Kay
states that he does not operate any station of which either he or [Buddy Corp. or Oat Trunking Group, Inc.] is not the
licensee." WTB Exh. 11 at 1. Kay was in fact operating Sobel's stations under an oral agreement at the time. Marc So-
bel, 12 FCC Rcd at 22883 P12. We believe the aforementioned matters are relevant to the designated issues because
they confirm the existence of a pattern of conduct. See Ismail v. Cohen, 706 F. Supp. 243, 252-53 (S.D.N.Y. 1989);
Fed. R. Evid. 404(b). n24
n24 In view of this pattern of conduct, we do not believe that it is necessary to reach the question of whether this representation by it-
self constitutes disqualifying misconduct.
VIII. SANCTIONS
100. The record in this proceeding indicates that Kay has violated his obligations as a licensee. Under the 308(b) is-
sue we found that Kay deliberately withheld material information from the Commission without justification in viola-
tion of 47 C.F.R. § 1.17. As discussed previously, Kay's inadequate responses do not warrant disqualification. The hear-
ing designation order, however, also served as a notice of apparent liability for forfeiture. James A. Kay, Jr., 10 FCC
Rcd 2062 P16 (1994). See Abacus Broadcasting Corp., 8 FCC Rcd 5110, 5114-15 PP16-18 (Rev. Bd. 1993) (appropri-
ateness of forfeiture for violation of 47 C.F.R. § 1.17 absent a finding of deception). We believe that, under the Com-
mission's forfeiture standards, the category most relevant to Kay's misconduct is "Failure to respond to Commission
communications," for which the base forfeiture amount is $ 4,000 per instance. 47 C.F.R. § 1.80(b)(4) Note. Because
Kay's nonresponsiveness was of a continuous nature, we adjust the forfeiture upwards to $ 10,000. Id.
101. The record also shows that Kay's Motion to Enlarge, Change, or Delete Issues filed by Kay on January 12 and
25, 1995 lacked candor. Although lack of candor may warrant revocation of all licenses, we believe that it is appropriate
to limit the sanction imposed here. In particular, we note that deterrence is an important element of the character qualifi-
cations process. See Character Qualifications, 102 FCC 2d 1179, 1128 P103 (1986). The misconduct found here, con-
cerning Sobel's stations, involves only stations operating on the 800 MHz band. We find that the revocation of Kay's
licenses for stations operating on this band will serve as a significant deterrent to future misconduct. Moreover, because
we found that the control of Sobel's Management Agreement stations had been transferred to Kay and that Kay shared
in the value of these stations, the revocation of these stations also serves to deter future misconduct by Kay as well as by
Sobel. We will therefore limit the sanction applicable to Kay to revocation of the 25 licenses for his stations operating
on the 800 MHz band.
IX. ORDERING CLAUSES
102. ACCORDINGLY, IT IS ORDERED, That, good cause for filing an additional pleading concerning his No-
vember 2, 1999 Motion to Strike not having been shown, the Request for Leave to File Reply, filed November 5, 1999,
by James A. Kay, Jr., IS DENIED, and, for the reasons set forth in paragraph 12, supra, the Motion to Strike, filed No-
vember 2, 1999, by James A. Kay, Jr. IS DENIED.
103. IT IS FURTHER ORDERED, That, for the reasons set forth in note 13, supra, the Motion for Leave to File
Supplement to Reply Exceptions, filed December 30, 1999, and the Motion for Leave to File a Reply to the Bureau's
Opposition to the December 30, 1999 Filing, filed January 20, 2000, by James A. Kay, Jr. ARE DISMISSED as moot.
104. IT IS FURTHER ORDERED, That, because oral argument would not materially assist the Commission, the
Request for Oral Argument, filed November 2, 1999, by James A. Kay, Jr. IS DENIED.
105. IT IS FURTHER ORDERED, That the Wireless Telecommunications Bureau's Exceptions and Brief, filed
October 12, 1999, IS GRANTED in part and IS DENIED in part.

106. IT IS FURTHER ORDERED, That the Initial Decision of Chief Administrative Law Judge Joseph Chachkin,
FCC 99D-04 (ALJ Sept. 10, 1999) IS MODIFIED to the extent indicated above.
107. IT IS FURTHER ORDERED that, pursuant to Section 1.80(h) of the Rules, 47 C.F.R. § 1.80(h), James A.
Kay, Jr. shall, within thirty (30) days of the release of this Decision, pay the amount of $ 10,000 for the violations de-
scribed above. n25 Payment of the forfeiture shall be made by check or money order drawn on a U.S. financial institu-
tion payable to the Federal Communications Commission. Payment may also be made by credit card with the appropri-
ate documentation. n26 The remittance should be marked "NAL/Acct. No. 915KC0002" and mailed to the following
address:

P.O. Box 73482
Chicago, Illinois 60673-7482
Forfeiture penalties not paid within thirty (30) days will be referred to the U.S. Attorney for recovery in a civil suit. 47
U.S.C. § 504(a).
n25 Claims of inability to pay should be supported by tax returns or other financial statements prepared under generally accepted ac-
counting principles for the most recent three year period.
n26 Requests for installment plans should be mailed: Chief, Credit & Debt Management Center, Mail Stop 1110A2, 445 Twelfth
Street, S.W., Washington, D.C. 20554. Payment for the forfeiture in installments may be considered as a separate matter in accordance with
Section 1.1914 of the Rules, 47 C.F.R. § 1.1914. Please contact Chief, Credit & Debt Management Center for information regarding credit
card payments.
108. IT IS FURTHER ORDERED, That the following licenses of James A. Kay, Jr., ARE REVOKED: WNIZ676,
WNMT755, WNVL794, WNVW779, WNWB268, WNWB332, WNWK982, WNWN703, WNWQ651, WNXB280,
WNXQ372, WNXQ353, WNXQ911, WNXS450, WNXS753, WNXW280, WNXW549, WNYQ437, WNYR747,
WNZY505, WNZZ731, WPAP683, WPAZ639, WPBW517, WNXW487.
109. IT IS FURTHER ORDERED, That the licensee IS AUTHORIZED to continue operation of the stations men-
tioned in paragraph 108 until 12:01 A.M. on the ninety-first day following the release date of this decision to enable the
licensee to conclude the stations' affairs; PROVIDED, HOWEVER, that if the licensee seeks reconsideration or judicial
review of our action revoking its license, it is authorized to operate the stations until final disposition of all administra-
tive and/or judicial appeals.
110. IT IS FURTHER ORDERED that a copy of this order shall be sent by certified mail, return receipt requested,
to James A. Kay, Jr., P.O. Box 7890, Van Nuys, California 91409-7890.
111. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.

Magalie Roman Salas
Secretary
CONCUR BY:
MARTIN (In Part)
DISSENT BY:
MARTIN (In Part)
DISSENT:

CONSOLIDATED SEPARATE STATEMENT OF COMMISSIONER KEVIN J. MARTIN,
CONCURRING IN PART AND DISSENTING IN PART
Re: James A. Kay, Jr., Licensee of One Hundred Fifty Two Part 90 Licenses in the Los Angeles, California Area, Deci-
sion, WT Docket No. 94-147; Marc Sobel and Marc Sobel d/b/a Air Wave Communications, Licensee of Certain Part
90 Stations in the Los Angeles Area, Decision, WT Docket No. 97-56
I dissent in large part from this item. I am unwilling to approve, based on the conflicting and confusing record be-
fore us, the determination that James A. Kay, Jr. improperly failed to respond to requests for information and that Kay
and Marc Sobel lacked candor in filings they made to the Commission. In the information request decision, the Com-
mission reverses an ALJ's explicit findings that Kay acted reasonably in the face of a demanding inquiry by the Bureau -
findings that are ordinarily accorded great deference. In the lack of candor decision, upon which two ALJs reached op-
posite conclusions, the Commission essentially sides with the first ALJ, even though he did not have accurate informa-
tion on all of the relevant facts. In my view, the Commission does itself a disservice by making these decisions on the
cold record before it. At the very least, the Commission should have referred this proceeding to a new ALJ to reconcile
the conflicting decisions and make definitive findings.
I. Failure To Respond to Commission Inquiries

This case began as an investigation into whether Kay was falsely reporting the number of mobile units he served in
order to avoid certain channel sharing and recovery rules. Having received several complaints making such allegations,
the Wireless Bureau served Kay with a request for information. A lengthy exchange ensued, in which Kay and the Bu-
reau wrestled over what information Kay would provide and when he would provide it. Kay's actions during the course
of this exchange are the basis for the Commission's determination that Kay improperly failed to respond to the Bureau's
inquiries in violation of 47 U.S.C. § 308(b) and 47 C.F.R. § 1.17.
The Commission makes this determination in the face of a contrary decision and express findings by the ALJ. That
ALJ, Judge Chachkin, found that "the Bureau was engaged in a fishing expedition with the hope that something would
turn up," that "Kay was being asked to provide virtually every detail regarding the operation of his business[,] . . . in-
cludeing sensitive information such as his entire customer list and details regarding the technical configuration of each
of his customers' system[s]," and that "all of Kay's reasonable requests for modification of the extremely broad inquiry
were arbitrarily ignored." James A. Kay, Jr., Licensee of One Hundred Fifty Two Part 90 Licenses in the Los Angeles,
California Area, Initial Decision of Chief Administrative Law Judge Joseph Chachkin, WT Docket No. 94-147, FCC
99D-04, P179 ("Chachkin Decision"). In addition, Judge Chachkin found that the Bureau's request for information
"was received by Kay only two weeks after the Northridge earthquake, a devastating natural disaster that did substantial
damage to his business and personal residence" and that, ultimately, "Kay turned over some 36,000 documents." Id.
P180. Finally, Judge Chachkin ruled that Kay's actions were based on "legitimate concerns in Kay's mind whether the
data sought would be kept confidential" (id. P181), because, among other things, Kay's competitors had received a copy
of the Bureau's inquiry letter to Kay (id. P29) and the Bureau at one point demanded 50 copies of Kay's response (id.
P181).
In my view, the Commission goes too far in reversing Judge Chachkin's conclusions. There can be no question that
Kay and the Bureau were engaged in a heated dispute. Judge Chachkin made a number of factual determinations to re-
solve that dispute and determine that Kay did not violate the statute or Commission rules. In such situations, I am reluc-
tant to reverse an ALJ's determinations based on a cold record. It is well established that, generally, the initial trier of
fact is "closer to the course of the litigation," Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996), and "has
a better 'feel' . . . for the litigation" than a reviewing tribunal, Founding Church of Scientology v. Webster, 802 F.2d
1448, 1457 (D.C. Cir. 1986). Thus, the Commission routinely defers to the ALJ on these sorts of decisions. See, e.g.,
Applications of WWOR-TV, Inc. for Renewal of License of Station WWOR(TV), Secaucus, New Jersey and Garden State
Broadcasting Limited Partnership for Construction Permit, Secaucus, New Jersey, Memorandum Opinion and Order, 5
FCC Rcd 4113, P11 (1990) ("We are reluctant to reverse the ALJ, to whom broad discretion is ceded in ordering dis-
covery . . . ."); Applications of Mid-Ohio/Capitol Communications Limited Partnership et al. for Construction Permit
for a New FM station on Channel 298A in Columbus, Ohio, Memorandum Opinion and Order, 4 FCC Rcd 8125, P6
(1989) ("The Commission routinely entrusts the determination of the scope of such discovery in comparative hearings
to the broad discretion of the ALJ."). Indeed, this principle of deference extends well beyond the FCC; in the similar
arena of discovery disputes, appellate tribunals traditionally afford great deference to the decisions of the trial court.
See, e.g., United States v. Davis, 244 F.3d 666, 670 (8th Cir. 2001) ("The district court has broad discretion in imposing

sanctions on parties for failing to comply with discovery orders."); accord Bonds, 93 F.3d at 807. Accordingly, on this
record, I would not have reversed the ALJ's decision.
II. Lack of Candor

The Commission's lack of candor decisions against Kay and Sobel stem from other events in this case. During the
course of the Bureau's investigation of Kay, it received information indicating that Kay may have conducted business
under several other people's names, including Marc Sobel's. The Commission thus included Sobel's licenses in the order
designating Kay's licenses for hearing. Kay filed a motion to remove Sobel's licenses from the hearing designation and
attached an affidavit signed by Sobel stating that Kay had no interest in any of Sobel's stations. Based on this submis-
sion, the Commission removed Sobel's licenses from the Kay proceeding.
The Bureau subsequently discovered that Kay operated a number of Sobel's stations pursuant to a management
agreement. Accordingly, the Commission designated Sobel's licenses for hearing, asking whether Sobel had engaged in
misrepresentation or lack of candor. The ALJ assigned to Sobel's case, Judge Frysiak, concluded that Sobel's actions
showed a lack of candor. Judge Frysiak based that determination on, among other things, statements in the affidavit and
on Sobel's apparent failure to provide the Bureau the management agreement in a timely manner.
However, Judge Chachkin, in later reviewing the same conduct in Kay's case, came to the opposite conclusion.
Judge Chachkin found that Kay understood the affidavit's statement that Kay had no interest in any of Sobel's stations to
mean that Kay had no ownership interest in any licenses that were issued to Sobel. Chachkin Decision P216. Judge
Chachkin determined that "Kay was specifically advised, by counsel, that . . . the management agreement did not consti-
tute an interest." Id. P172. He thus concluded that "Kay's testimony as to what he meant by the word 'interest' and the
phrase 'stations or licenses' is entirely reasonable and credible." Id. P216.
Judge Chachkin also found that Kay's and Sobel's actions showed no intent to deceive the Bureau or conceal the
management agreement. He pointed out that Kay and Sobel provided the management agreement to the Bureau just two
months after they filed the challenged motion and accompanying affidavit, long before anyone raised any questions
about lack of candor. Id. P217.
Finally, Judge Chachkin addressed Judge Frysiak's prior decision on the lack of candor issue and concluded that
Judge Frysiak had been misled by the Bureau. Judge Chachkin explained that, although Kay had provided the Bureau a
copy of the management agreement in March of 1995, the Bureau represented to Judge Frysiak that no copy was pro-
vided until late 1996. Id. P210. "There is no doubt," Judge Chachkin concluded, "that [Judge Frysiak's] ultimate conclu-
sion that 'Sobel made misrepresentations and lacked candor . . .' was based on his erroneous assumption as to when the
Agreement was given to the Bureau." Id. P210.
Based on these conflicting decisions and on Judge Chachkin's view that Judge Frysiak was misled, I cannot support
this decision. As the Commission acknowledges, determinations of credibility must rest in large part on factual determi-
nations made by an ALJ. I am unable, on the record before us, to reconcile the ALJ's conflicting decisions and deter-
mine that Judge Frysiak was not misled. n1 Particularly given the severity of the sanctions at issue, I would not find that
Kay and Sobel lacked candor.
n1 I also take issue with the Commission's conclusion that Judge Frysiak would not have made a different decision had he known Kay
and Sobel provided the Bureau a copy of the management agreement in March of 1995, long before lack of candor was an issue. Judge Fry-
siak's decision explicitly rests in part on the determination that "even though the Management Agreement fully disclosed their relationship,
Sobel did not voluntarily submit it to the Commission until requested by the Commission to do so in [1996]." Marc Sobel and Marc Sobel
d/b/a Air Wave Communications, Licensee of Certain Part 90 Stations in the Los Angeles Area, Decision, WT Docket No. 97-56, FCC 97D-
13, P74. While this may not have been the largest factor in Judge Frysiak's decision, I find it impossible to assess its impact after the fact. I
do not understand how my colleagues, on the record before us, can make such a conclusion on Judge Frysiak's state of mind.
III. Conclusion
At best, this is a case of conflicting opinions by ALJs that ought to be remanded to a third ALJ to reconcile their de-
terminations. Even worse, however, this case involves allegations that Commission staff misled a judge into reaching an
erroneous conclusion. While I am confident that Commission staff engaged in no misconduct in this case, we do them a
disservice by depriving them of an opportunity, in a new hearing, to explain what occurred. Such a hearing would de-
fend the reputation of our staff and ensure the integrity of our process. Thus, for all of these reasons, the more reason-

able course would be to refer this case for a hearing in front of a new ALJ. Accordingly, I dissent from parts IV, VII,
VIII, and IX of the Kay Order and from parts V, VI, and VII of the Sobel Order. I concur with respect to the other parts
of these Orders.


[3.4.2010: W. Havens note added: ATLIS Wireless LLC is the joint not-for-profit operations company serving our FCC license-holding companies:
Telesaurus Holdings GB LLC, Verde Systems LLC, Environmentel LLC, and Intelligent Transportation & Monitoring Wireless LLC. ATLIS also intefaces
with Skybridge Spectrum Foundation, a nonpfofit 501(c)(3) entity that also holds FCC licenses donated by the just listed 4 LLCs, sometimes also called
the "Telesaursus LLCs" informally.]

Summary Plan for a Cost-Benefit Study of a Cooperative
High-Accuracy-Location Based Services Infrastructure
(Next-Generation US Positioning Infrastructure)
Christian Manasseh, Raja Sengupta, Adib Kanafani, Kannan Ramachandran,
11/25/2009
Introduction
This study aims to develop a cost-benefit analysis for a cooperative high-accuracy-
location -- or “C-HALO”-- infrastructure for nationwide smart transportation, energy,
environment and other critical services. The study described here will build on some
past work sponsored by the Skybridge Spectrum Foundation and the Telesaurus LLCs of
Berkeley California. 1 The core C-HALO services essential for public safety,
transportation efficiency and other critical goals are planned to be at no charge, like
GPS. “Cooperative” refers to cooperation among multiple space and terrestrial
positioning systems and the mobile vehicles and things being located to achieve the
most effective and efficient high accuracy location and tightly integrated
communication. This appears possible and should be attempted based on current and
near-term positioning, computer, wireless, IP network, and other technologies and use
of vehicles as excellent wireless platforms, and the nations’ demand for more “green”
infrastructure and way of life.
The groundwork of this study is to survey current and projected wide-area government
positioning systems (primarily GPS and other GNSS and their current and projected
augmentations) in order to identify their geographic coverage, accuracy and reliability
across the nation. The study will utilize this survey to assess the gap between these
current and projected systems, as compared to the increased coverage, accuracy
and reliability requirements of C-HALO in its several contemplated phases. Knowing the
size of this gap nationwide, we will be able to perform a cost benefit analysis, estimating
and comparing the benefits to the nation reaped by these increases to the costs
involved in achieving the increases using new, mostly terrestrial, positioning
technologies becoming available in the market, and others that appear feasible.
The C-HALO phases’ position coverage, accuracy and reliability requirements will be
defined by the needs of advanced traffic safety and flow of roadway, maritime, rail,
1J. D. Margulici, The Telesaurus‐Skybridge Plan: Enhancing VII with an accelerated deployment
path and high‐accuracy positioning, May 2008. White Paper: High Accuracy LOcation (HALO),
Yaser Fallah Warren Havens, Christian Manasseh, James Misener, Kannan Ramachandran,
Shahram Rezaei, Raja Sengupta, February 12, 2009.

and air transportation; transportation and other mapping and dynamic GIS; major
physical infrastructure deformation monitoring; backup of the GPS system; improved
location capability for emergency responders outside and inside buildings; and various
other application domains. Major improvements in current and affordable positioning
coverage, accuracy and reliability will be required to achieve any implementation of
C-HALO.
This study is considered to be a first step realization of C-HALO. We see the realization of
C-HALO as a fundamental building block for a more safe, livable, and sustainable
national infrastructure, and a foundation for applications spanning various industries
and economic sectors, indicated below.
The global positioning system (GPS) has been developed and deployed by the US
government. Other GNSS are becoming upgraded (GLONASS) and established
(Galileo, etc.) Extending the coverage, accuracy and reliability of GPS (GPS herein
meaning all available GNSS) has been for years the objective of much private sector
research and deployment efforts. For example, technologies such as DGPS, GPS-WAAS,
GPS+INS, GPS-RTK, and network RTK have been developed in recent years and are
partially deployed. Limited-coverage pseudolite-based systems are also available,
wide-area multilateration systems are being substantially deployed around airports for
aircraft and ground vehicle tracking. However, to this day no system has been proven
to be able to ubiquitously provide accurate and reliable wide-area positioning
information approaching what is needed for C-HALO. In most cases, such as with GPS-
RTK, the cost of the positioning system in their limited uses (such as high-end agriculture
and surveying) has been a barrier to wider-scale deployment. Moreover, these
technologies rely on GPS, and only work well in areas where GPS reception is not weak
or compromised by substantial radio multipath. In areas such as urban canyons and
forested streets, or even in traffic with higher adjacent vehicles passing by, these
systems will not function well. Certain new pseudolite-based solutions which can cover
these dark areas are limited in range and are “not yet ready for prime time.” Inertial
navigation systems (INS) in vehicles can extend GPS coverage beyond areas of
accuracy but not for substantial distances before loss of required accuracy. Wide-area
multilateration systems being increasingly deployed around airports (as noted above)
are cost-effective and sufficiently accurate for their purposes, but without modifications
and far more extensive use of base stations, will not meet C-HALO requirements.
Recent and projected further advances in cooperative mobile communications,
software defined radio, smart antenna systems, and other techniques, along with use of
vehicles as excellent mobile communication platforms, may provide for advancements
in positioning techniques and integrated systems.
Combinations of these will be needed for C-HALO, and phases seem needed for
affordable, practical implementation, starting with higher value applications in
-2-

geographic areas that can be affordably covered with sufficient accuracy and
reliability, to eventual nationwide coverage, higher performance, higher volumes and
lower per-unit cost, and an increasing range of applications extending to the mass
market.
In addition to technological difficulties, deployment of C-HALO on the scale planned

requires significant government support and funding. This has discouraged the private
sector from aggressively attempting to resolve the technological issues. Overcoming
the current technological hurdles and enabling C-HALO; therefore, warrants
government and private foundation support of research and development initiatives.
This study aims at providing a tool which will enable government and private funding
agencies to assess the benefits of investing in a new breed of positioning technologies
and wide-scale deployments to meet the goals first noted above. It will shed light on
the range of costs of the most promising technologies and their integration and phases
of deployments in a nationwide C-HALO infrastructure. It will also identify the radio
spectrum needed, existing commitments toward meeting the need, and other possible
sources.
Methodology
This study is a first step in a comprehensive systems approach to laying down a national
strategy for the next generation positioning infrastructure and the needed technologies
and phases.
As noted above, as part of this study, the research team will inventory the existing and
projected government positioning systems (primarily GPS based) and their scope of
geographical coverage, accuracy and reliability (“coverage and performance”). The
proposed work will also inventory current and developing positioning technology,
including GPS, GPS + WAAS, GPS + N-RTK, and GPS + INS/Vision sensors, pseudolites and
mutilateration systems, etc., listing their coverage and performance. The projected
coverage and performance of these inventoried existing and new systems and
technologies in various combinations will be estimated, and then compared to the
greater requirements of the C-HALO phases and applications within the domain of this
study and identified below: the difference called the “HALO Gap.”
For existing and projected new positioning systems, coverage and performance
estimates will be made using various methods and tools including Geometric Dilution of
Precision (GDOP), FAA Sectional Aeronautical Charts, USGS manmade facilities,
digitized maps and radio-frequency system computer modeling, National Land Cover
Database (NLCD), classifications to obtain a national GPS satellite-visibility map, and
real-world tests in the San Francisco Bay Area.
-3-

The above tasks will result in a quantification of the HALO Gap (see above) which will
be the scope of study for a Cost Benefit Analysis (CBA) to estimate the size of required
investment to achieve C-HALO in its several phases, and relate those costs to an
estimate of the potential benefits of those C-HALO phases to the nation.
Domains of Analysis
Several sectors of the economy are projected to benefit from C-HALO infrastructure.
We foresee benefits to sectors and applications involving:
• roadway safety and flow involving vehicle-to-vehicle and vehicle-to-

infrastructure integration and coordination, resulting in less accidents,
congestion, fuel use, pollution, health impairment, car insurance and medical
costs, loss of work and leisure time, etc.
• tracking and control of aircraft and service vehicles at and around airports, and
similar services for maritime ports and vessels
• high speed and conventional passenger and freight rail: monitoring track
assignments and switches, etc.
• buses and other public transit, along the lines noted above
• warnings among vehicles, pedestrians, and bicyclists as to potential collisions

courses
• E-911 improvements, due to the higher coverage, accuracy, and reliability

outdoors and indoors
• container tracking and security by shippers, freight terminal authorities, and

government security programs
• merchandise and truck shipment tracking in wholesale and retail operations
• smart logistics and warehouse and stockyard management
• accurate and efficient mapping and remapping for GIS, and dynamic GIS
needed for C-HALO and other developing services
• support of advanced V2G (Vehicle to Grid) programs
• provision of redundant systems to GPS, in case GPS is jammed or otherwise fails
• structural and seismic deformation monitoring and alerts
• extensions to wide-scale monitoring and protection of the natural environment.
-4-

To better understand the benefits of C-HALO, all potential substantial beneficiaries
would have to be accounted for. The research team will thus survey the relevant
literature and identify existing and possible new sectors of the economy and
applications that use or may use positioning systems (some indicated above).
Convening a Colloquium
As part of conducting this study, we will invite government, research, and industry
representative experts in the field of positioning services and primary sectors to be
served by C-HALO to a discussion panel. This colloquium would create the venue for
exchanging ideas around new positioning technologies, validate our perceptions of the
current state of the system and available technologies, and foster relations to facilitate
the rest of the work sought out in this study.
Cost-Benefit Analysis
The focus of the CBA will be on the benefits. The underlying problems (suggested in the
bullet points above) which C-HALO may substantially aid in solving are well known, are
among the major problems of the nation, and can be roughly quantified along with
their substantial solutions, or benefits.
Having identified the scope and domains of study for a CBA, indicated above, the
research team will then pursue the listing of possible technology scenarios to achieve
various C-HALO requirements and implementations. The technology scenarios include
possible expansion of coverage and performance of existing positioning technology
such as by use of the newer technologies and systems listed above.
While this effort will focus on the costs and benefits noted above, it will also addresses
the need for and availability of radio spectrum for each of those technologies and
systems to function properly and affordably. A survey of the various wireless spectra
that are or may become available for various phases of C-HALO implementation will be
carried out, along with assessment of the available communication infrastructure
(antenna sites, site-to-site communication links, network operations facilities, etc.) to
host the wireless systems using the available spectra. While the cost of existing
technologies (some at high current costs related to low current volume) is available
from the manufacturers, estimating costs of new proposed position technologies, of the
fusion and deployment of existing and new position technologies, and of all radio
spectrum needed, pose challenges. This study will identify these and other challenges
that might face planning, financing, and deploying phases of C-HALO.
The monetary costs and the benefits estimates will be discounted to present values to
construct a matrix of cost-to-benefit by coverage and performance (accuracy and
reliability) of several C-HALO implementations or phases that appear most desirable.
-5-

A sensitivity analysis will then be performed to understand the cost factors that
influence the benefits the most. These factors will be checked for accuracy of
assumptions and values to ensure a proper CBA outcome.
Research Team
The research team collaborating on this study will be Prof. Raja Sengupta, Prof. Adib
Kanafani, Prof. Kannan Ramachandran, and Christian Manasseh at the University of
California, Berkeley within the framework of the University’s Institute for Transportation
Studies. A student researcher will also be appointed to assist in the research tasks.
Time Frame
The study will span a period of 1-year, commencing in early 2010. The team will work on
surveying the various positioning technologies and systems and C-HALO requirements
during the first quarter. Creating the GIS map model and related tasks to estimate
coverage and performance, as described above, will be performed during the second
quarter. The colloquium will be held sometime during the second quarter as well.
Identifying further and verifying the various domains and applications that would
benefit from C-HALO, quantifying the benefits thereof, and identifying the cost of the
investments needed will be done during the third quarter. Putting together the CBA
and performing the sensitivity analysis will be done during the fourth quarter.
-6-

W. Havens To FCC, in Support of FCC's 3 (Feb 2010) Letters of Investigation, To MCLM, DePriests & MariTEL Re AMTS Auction 61 Compliance, Truthfulness, Actual Affiliates and Revenues, Etc.

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W. Havens To FCC, in Support of FCC's 3 (Feb 2010) Letters of Investigation, To MCLM, DePriests & MariTEL Re AMTS Auction 61 Compliance, Truthfulness, Actual Affiliates and Revenues, Etc.

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This is a copy of the below email and its attachments placed into Word and then PDF for

Fw: Letters of Inquiry: EB to MCLM, Maritel, WPV- D. Brown

To: gary.schonman@fcc.gov; brian.carter@fcc.gov

Cc: d brown d.c.brown@att.net; Scot Stone Scot.Stone@fcc.gov; jeff tobias

----- Forwarded Message ----

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 1 of 151

Mr. Schonman and Mr. Carter:

I copy attorney Dennis Brown on this email.

Our companies. I describe these at the end below. [*]

Notices and copies

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 2 of 151

In regards to this attached filing, as I explain in that filing, my companies have

- Affiliates, general. Additional undisclosed affiliates of MCLM that are large

- Deliberate obfuscation of control, and disregard of alleged entities. The control in

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 3 of 151

- MCT. A number of "MCT" companies, some of which, by the documents we

- Mobex predecessors / affilates of MCLM. A number of "Mobex" predecessors /

- Nextel. Information that Nextel appears to be an affiliate, reflected in governmental

- American Telecasting and Sprint are also affiliated co-defendants of Donald

- TDF and Spectrum Bridge. The Telecommunications Development Fund is a

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 4 of 151

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 5 of 151

- Fraudulent reports of license construction, operations, rule-change positions, and

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 6 of 151

The FCC has specifically disqualified licensees based on misleading

[If misleading ones are disqualifying, the outright fraudulent renewal

- These defendant's "untouchable" position, and fraudulent acts and concealment,

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 7 of 151

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 8 of 151

----- Forwarded Message ----

I don't know why you didn't receive these.

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 9 of 151

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 10 of 151

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 20 of 151

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 29 of 151

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 37 of 151

Non-docketed Pleadings Print Page Help

The following information was submitted with this Pleading:

Petition for Reconsideration

Entered Date: 03/10/2010

File Number(s)/Call Sign(s)

0002303355 File Number

Submit Another Pleading

FCC | Wireless | ULS | CORES | Paying Fees Help | Tech Support

Federal Communications Commission Phone: 1-877-480-3201

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 38 of 151

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 39 of 151

Maritime Communications/Land Mobile LLC DA 07-1196

To: Office of the Secretary

Filing of Relevant Information in the Section 308 Proceeding

Intelligent Transportation & Monitoring Wireless LLC

To FCC Enf Bur - re MCLM FN 0002303355, etc. Page 40 of 151

(i) Introduction and Summary and Length 3

(ii) Timing and Attachments (further) 6

1 Ex Parte Communication by MCLM 9

2 Legal Analysis: “Manager”, “Director”, “Officer”; Spurious 10

3 MCT Corp (and other “MCT” Entities) Are Affiliates of MCLM 11

4 Mobex is an Affiliate--a Controlled Entity--of MCLM, and, 13

5 John Reardon Is an Officer of MCLM, and Failure to Disclose 16

6 MCLM Admission of Failure to Disclose Significant 18

7 Relevance to 308 Proceeding, and FCC Should Seek and 20

8 Appended Documents, and Certain Comments Thereupon 22

9 Additional Relevant Information 29