FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 6
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Federal Communications Commission Record
"TeleSTAR has admitted to engaging in construction
at 13 of 15 sites. The admitted construction
ranges in extent. At six sites, including those described
by Western, the transmitter housing, towers,
antennas, and waveguides have been constructed. At
two sites the transmitter housing, towers, and antennas
have been built; at two others the transmitter
housings and towers have been completed. At one
site only the transmitter housing has been constructed,
and miscellaneous minor construction has
occcurred at two others. At the remaining two sites,
TeleSTAR submits that no construction whatsoever
Id., at para. 8 (footnote omitted). WTCI requested that
the T/S applications be dismissed, and protests against the
grant of the T/S applications were also filed by Mountain
Bell and MCI.
5. The T/S opposition pleading to the requests for
dismissal of its Construction Permit applications made
two clear concessions: (1) that premature construction of
the T/S microwave radio system had occurred to the
extent indicated in para. 8 of the HDO (reprinted above) 9;
and (2) that T/S principal and president, Noel Stewart,
"must have read Section 21.3 147 CFR 21.3] because of
item 35 certifications which he made on fifteen FCC
Forms 435." T/S Opposition to Petition to Dismiss, filed
March 21, 1985, at 26. The "item 35" element of Construction
Permit Application Form 435 reads as follows:
CERTIFICATION OF PERSON RESPONSIBLE FOR
PREPARING ENGINEERING INFORMATION
SUBMITTED IN THIS APPLICATION
I hereby certify that I am the technically qualified
person responsible for preparation of the engineering
information contained in this application, that I
am familiar with Part 21 of the Commission's
Rules, that I have either prepared or reviewed the
engineering information submitted in this application,
and, that it is complete and accurate to the
best of my knowledge.
The fifteen FCC Forms 435 filed by T/S on January 23,
1985 were certified to, as above, and signed by Noel
Stewart on January 4, 1985. I.D., para. 35.
6. The T/S opposition to WTCI (et al.) advanced two
main arguments in defense of its admitted violations: (1)
that Section 319(a) of the Communications Act did not
preclude, as a matter of law, the grant of the T/S Construction
Permit applications 10; and (2) that "Section
21.3 147 CFR 21.31 is very amenable to misinterpretation."
" In pertinent part, Section 319(a) of the Communications
Act (following a 1982 amendment) reads:
"No license shall be issued under the authority of
this Act for the operation of any station unless a
permit for its construction has been granted by the
Section 21.3(b) of the Rules, in pertinent part, reads:
"No construction or modification of a station may
be commenced without a construction permit. a
modified construction permit, or other authority
issued by the Commission for the exact construction
or modification to be undertaken...."
The T/S opposition contented that, in fact, its principals
had unintentionally misinterpreted Section 21.3(b), asserting
"TeleSTAR understood Section 21.3 of the Commission's
Rules to prohibit the installation and
connection of hertzian wave propagating equipment.
TeleSTAR admits that its legal construction of Section
21.3 was wrong. TeleSTAR's violation was not
the act of an applicant willfully breaking Commission
Rules; it was the act of a new entrant which
was uninformed of a textually unapparent legal construction
of Section 21.3."
7. The HDO firmly rejected the T/S opposition arguments
as to 47 U.S.C. 319(a). As to 47 CFR 21.3,
the HDO addressed the T/S assertion that other portions
of Part 21 of the Rules:
"could lead a person reasonably to believe that the
station construction referred to in Section 21.3 only
includes transmitters and related electrical equipment,
and that towers, while convenient, are not
necessary to the propagation of such waves and the
carrying on of such a service. Even assuming, arguendo,
that one accepts such a narrow reading of
the three rules, the argument TeleSTAR makes is
still not persuasive in this case. TeleSTAR admits to
constructing eight antennas and six waveguides;
TeleSTAR's argument that antennas and waveguides
are not required for carrying on a radiocommunication
service by means of Hertzian waves
is simply not credible. Thus, even if the Bureau
accepts the premises of TeleSTAR's argument.
TeleSTAR's construction goes beyond the range of
any arguable ambiguity."
Id., at para. 11 (footnotes omitted). In view thereof, the
"We conclude that there are substantial and material
questions of fact concerning the circumstances
surrounding the construction by TeleSTAR and its
subsequent application to the Commission. We note
first that there is a substantial question concerning
whether TeleSTAR has made material misrepresentations
or demonstrated a lack of candor in its
dealings with the Commission. TeleSTAR admits
that its principals were familiar with the Part 21
rules, including Section 21.3. It contends that these
principals honestly but mistakenly believed that the
construction in question was permissible, yet as
pointed out above that argument is not persuasive.
If in fact the construction was undertaken with
knowledge that such construction might well or
would in fact violate the Commission's rules, then
TeleSTAR would have lacked candor or misrepresented
this fact to the Commission in the pleadings;
in addition, TeleSTAR would have lacked candor
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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.. (digital.library.unt.edu/ark:/67531/metadc1597/m1/13/: accessed January 20, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.