WASHINGTON-Viking Dispatch Services Inc., whose 42 applications to build cooperative, non-profit private radio networks were rejected by the Federal Communications Commission’s Wireless Telecommunications Bureau June 7, continues to fight for a review of the decision based on facts it has uncovered since the decision.
Following the denial last summer, Viking said it found several other cooperative network applicants with similar-although smaller-scale-plans were granted licenses during the time the commission had Viking’s petition out for public notice. While Viking’s applications were pending, the bureau granted licenses for co-op systems to Rattlesnake Mountain Communications Consortium, Atlas Communications Inc., R&S Communications Inc., Magnum Communications Inc. and D/FW Communications Services Inc. None of these applications were put out for public notice, Viking found, and none had to submit a number of proposed users.
In its second supplement to its application for review submitted earlier this month to the commission, Viking-a venture including manufacturer E. F. Johnson Co.-wrote the WTB’s June decision was based on “misrepresentation of the laws and policies of the FCC … Accordingly, the order is completely without basis in either commission law or policy, relies upon concealed information and upon erroneous findings as to important or material questions of fact.”
Viking attorney Russell Fox of the Washington, D.C., law firm Gardner, Carton & Douglas, has asked WTB chief Michele Farquhar for a special ex parte meeting to hash out the problem. “We think that the error here is so obvious that the bureau would want to take action to rectify this … The FCC has run roughshod over its own rules.”
Fox may seek appeals-court relief if satisfaction cannot be had at the FCC, and others close to the issue believe the commission may have a difficult time explaining why it denied Viking’s applications while awarding others. However, some private-radio representatives fear if the commission does vacate its order and gives Viking what it wants, the FCC may stop awarding co-op licenses altogether, thus shutting down a much-needed private-radio communications conduit and hurting small businesses that cannot afford to build out their own networks.
While Viking’s paperwork appears to make a “me, too” case for an award of its requested 900 MHz channels, the Personal Communications Industry Association continues to oppose such a grant, writing that because Viking admitted that it has no requests for service yet, it has “no need” for the channels and, under current commission rules, should not receive them because “go-forward cooperatives” cannot be authorized to use Business Pool frequencies. PCIA also brought up the specter of channel hoarding, pointing out if Viking had been allowed to build out its networks, garnered no users and then relinquished the licenses to the FCC in five years, “this position would wreak havoc on the commission’s decades-long spectrum policy.”
If the FCC did not hold other co-op licensees to the same scrutiny it did Viking, then the commission was in error according to its own rules, PCIA concluded. “Even if it is assumed that the commission was in error in granting the other applications,” PCIA added that it would not support another erroneous application grant in kind. The association also opposes any meeting called by Viking with the WTB, citing Communications Act rules that say the FCC must make the first move for additional information, not the petitioner.
Agreeing with PCIA was UTC general counsel Jeffrey Sheldon who, in a Nov. 21 letter to Farquhar, called Viking’s request that the WTB ask for an ex parte meeting “a bizarre suggestion,” adding that no justification to waive ex parte rules exists at this point.
“It is one thing for the bureau to conclude, on its own motion, that it requires further information from [Viking],” he wrote. “It is quite another matter for [Viking] to `suggest’ that the bureau needs additional information, let alone on an ex parte basis where other parties will have no opportunity to review or comment on the arguments or information to be submitted.”
