FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 7
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Federal Communications Commission Record
when it filed its applications for construction permits
without informing the Commission that some
of the facilities had in fact already been substantially
constructed. We therefore designate the issues of
misrepresentation and candor for hearing.
Id., at para. 13 (footnotes omitted).
8. Fully six months after the T/S opposition asserted its
"misinterpretation" defense and fully three months after
the T/S Construction Permit applications were so designated
for evidentiary hearing in June, 1985, as well as
after much prehearing discovery had taken place, the
proceeding here took a highly unorthodox twist. In the
context of a Motion for Summary Decision, filed September
20, 1985, T/S utterly abandoned its extensive defense
claims that its principals were misled in their interpretation
of Section 21.3(b) by their reading of collateral
portions of Part 21 of the rules. T/S now submitted that,
in fact, its principals had never even read Section 21.3
prior to the premature construction, let alone misconstrued
its import. Arguing that the misrepresentation and
candor issues specified in the HDO were, therefore, predicated
on erroneous premises, the T/S motion now asserted
that "TeleSTAR's principals never saw [Part 21 of] the
rules until they received a copy a day two [sic] before
these applications were signed." 13 In an affidavit accompanying
the September 1985 motion, Noel Stewart now
claimed that his "review of the Part 21 rules was primarily
for areas that I believed might deal with my role as an
engineer" and that prior T/S representations that he had
read, but easily "misinterpreted," Section 21.3 were "not
correct." 14 He also claimed that his affidavit accompanying
the March 21, 1985 T/S opposition pleading was
executed without reading that T/S pleading. Tr. 345-347.
9. The above T/S motion, thus, laid out the new line of
defense: (1) that the prior defense of easy
"misinterpretation" of Section 21.3. elaborately drawn out
in its March 21, 1985 opposition pleading (see supra para.
7) was simply "argument" of "legal counsel" 15; (2) that
the Stewart affidavit attending that March 21, 1985 opposition
pleading and averring to the matters set forth in
those pleadings as reflecting the true facts were, in fact,
not the true facts after all 16; and (3) that the HDO
misrepresentation and candor issues, were, accordingly,
"moot," thereby justifying summary decision in its favor.
17 Both the Common Carrier Bureau and WTCI opposed
the T/S motion, desiring instead to examine the T/S principals
on their new factual assertions. 18 By Memorandum
Opinion and Order, FCC 85M-3947, released October 9,
1985, the ALJ denied the T/S motion, and four days of
evidentiary hearing followed in early November, 1985.
10. At hearing, the ALJ examined much documentary
evidence and heard a number of witnesses, most of the
evidence keyed to the truthfulness, vel non. of the claim
that T/S principals were wholly unaware of the need for
direct, affirmative FCC approval prior to the commencement
of construction of the microwave radio system. One
of the first items of documentary evidence reviewed was a
Private Placement Memorandum ("PPM") intended to
edify prospective investors on the T/S enterprise. The
PPM was apparently begun in November, 1983 and competed
in January, 1984. I.D., para 10. The actual PPM,
dated January 16, 1984, 19 is a 47-page exposition (with
various appendices attached) setting out the structure of
the company and its business plan. The PPM contains
lengthy, detailed discussions of current FCC rules and
policies covering competitive common carriers, and includes
discussion of such complex matters as "dominant
and non-dominant [47 U.S.C.] 214 carriers," the AT indeed, it is generally superb.
11. Under the heading "BUSINESS
OPERATIONS," said to have been supervised, in part, by
Noel Stewart's brother and T/S vice president/ Board
Chairman, Doyal Stewart, I.D., para. 10, the PPM states
"Repeater sites have been selected for the Wasatch
Front System (Salt Lake City, Provo, and Ogden
areas) and a national data base clearance house has
been consulted to clear the frequencies for these
locations. This information will next be sent by the
national data base clearance house to other users in
what is termed user notification. This allows route
path conflict of interest, if any, to be resolved. The
TeleSTAR Network from Salt Lake City to Denver
was selected and planned over a route that is 20 to
50 miles south of present routes of AT an estimated seven to
eight months has been allocated. Construction of
the sites will begin upon a preclearance release from
the FCC for construction to begin. This order is
obtainable from the FCC usually after frequencies
have been out on user notification. The approximate
time for construction to begin would be at the
earliest thirty (30) to sixty (60) days after frequency
clearance is obtained from a national frequency data
base clearing house."
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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/m1/14/: accessed August 20, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.