FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 10
iii, 409, v p. ; 28 cm.View a full description of this book.
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Federal Communications Commission Record
FCC 86R-83
"I have looked back at the papers supplied by
TeleSTAR in response to the Common Carrier Bureau's
discovery requests, Sets 1 and 2, and I know
that in the Private Placement Memorandum
('PPM') at p. 25, and in a Critical Path and Means
("CPM") chart appended thereto, prepared by me
in about November 1983, there are references to an
FCC Pre-Build Order before site construction, followed
by references to Final FCC Clearance' before
installation of radio equipment (copies of the PPM,
and an Amendment of February 9, 1984, are attached
as Attachment E and F, respectively). I have
no recollection now of such a two-step FCC approval
process involving an FCC Pre-Build Order,
or where I got information about it, but it must
have been from the [consultant/contractor] sources
mentioned above. I can say with certainty, however,
that when construction was begun by TeleSTAR in
September, and up until I looked back at this
Private Placement Memorandum after designation
of TeleSTAR's applications for hearing, I had no
recollection of the Pre-Build Order."
18. There is some apparent ambiguity in this proceeding
as to whether T/S claims in its defense that its principals
were fully conscious of the need for direct
pre-construction authority from the FCC at the time the
PPM was prepared in 1983. but became confused sometime
during its March or April 1984 discussions with
Spectrum Planning, Inc. at Richardson, Texas, or whether
Noel and Doyal Stewart, at least, had been unaware
throughout of the need for direct pre-construction authorization
from the FCC. The Stewarts apparently gave
their attorney, J. Craig Carman, the impression of initial
awareness and, later, confusion. Thus, Carman stated 31:
"At the time the private offering memorandum was
prepared, the officers of TeleSTAR were aware that
some type of approval was required from the FCC
before construction could begin on microwave
sites."
But he went on to say (id):
"Subsequent to the offering memorandum and later
after visiting Spectrum Planning with Doyal Stewart
and Shelley Harrison, Noel Stewart believed that the
only documentation which TeleSTAR needed to
obtain before commencing construction of the microwave
towers was the preliminary clearance notification
(PCN's) which TeleSTAR had received
from Compucon before construction commenced
on any of said sites. Mr. Stewart was of the understanding
that radios could not be installed until an
FCC grant had been obtained."
The same apparent impression was given to Common
Carrier Bureau counsel, whose Proposed Conclusions of
Law (no. 1) submitted to the ALJ stated (Proposed Findings
of Fact; citations omitted):of 1983-4, and the beginning of construction in
September 1984, it dissolved. The most likely event
that changed T/S was the visit to Texas, as Carman
believed. Frequency clearance or coordination became
the major concern to both of them. This is
not surprising, since their discussions were with
individuals who make a living by coordinating frequencies.
In their discussions, no one of Spectrum
Planning or later at Compucon told the Stewarts
that one could begin construction without obtaining
a CP, but there is evidence that no one in those
companies would have said that it was permissible."
However, the T/S exceptions and the statements of T/S
counsel at oral argument before this Board do not assert
any such conscious knowledge of FCC requirements
and/or later confusion. The T/S exceptions claim 32:
"As uninitiated laymen with a background in construction,
they quite reasonably, but wrongly
thought that the FCC was concerned only with
radio frequency clearance and use of radio transmitters.
They did not think that the FCC would get
involved in issuance of building permits. Consistent
with this they erroneously believed that there were
two steps required by the FCC: (1) an initial site
and frequency clearance procedure resulting in a
preclearance build order, preclearance release or
'preliminary frequency clearance,' permitting site
construction to go foward assuming necessary leases
and building permits were in hand
but not installation
or operation of radios; then (2) an FCC
Final Clearance authorizing as the final stage of
construction the installation and operation of radio
equipment.
* * *
TeleSTAR's contemporaneously documented misunderstanding
of the FCC procedures was in fact the
basis for TeleSTAR's increasingly confident, but erroneous
belief that the preclearance order or release,
or preliminary frequency clearance prior to
site construction was achieved by fulfilling the frequency
coordination or PCN process, and that the
FCC Final Clearance (which after the Spectrum
Planning meeting they began to call a Construction
Permit or CP), was all that was required directly
from the FCC
not to permit site construction but
to permit the Final Stage of construction with
which they believed the FCC to be directly concerned,
the installation and initial operation or [sic]
radio transmitters."
Because the PPM and subsequent T/S documents quite
clearly depict direct FCC pre-construction authorization,
on the one hand, and the frequency coordination and
clearance process, on the other. as distinct and discrete
processes, T/S counsel was questioned closely on its exceptions
in this regard:"It appears that at the time of the PPM, at least
Doyal Stewart had acquired a correct, if rough
comprehension of the Commission's licensing procedure.
However, at some time between the Winter
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United States. Federal Communications Commission. FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987, book, January 1987; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc1597/m1/17/?rotate=90: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.