FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 16
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Federal Communications Commission Record
based upon expert advice, and because he knew modifications
of the T/S system were necessary, Noel Stewart
decided not to submit FCC Forms 435 for the CPs until
its entire 15-station system had received the requisite
frequency clearance. See supra para. 17; see also Direct
Testimony of Noel Stewart at p. 10, where he stated:
"But because manufacturers and others I talked to
about it advised that it was better to file for an
entire system all at once, and because we knew then
that there would be some modifications, I decided
not to file in August, even though it would have
been advantageous for me as President, and a
TeleSTAR investor, to file piecemeal, since a commitment
had been made to the preferred stockholders
to have FCC approval so that we could install
equipment and commence operations on at least
part of the system by January 1, 1985."
When a complaint was filed in January, 1985 against
the grant of the T/S Construction Permit applications, T/S
affirmatively interposed a defense of misinterpretation of
FCC rules and flexible statutory construction (see supra
paras. 5-6). That defense failed to get T/S its badly needed
Construction Permits, and a hearing was ordered by the
Commission in June, 1985. In July, 1985, some or all of
the T/S shareholders met. and a motion was made to
remove Noel Stewart of the T/S presidency; the motion
failed. Tr. 555-559. However. T/S authorized in July, 1985
an "investigation" by one of its own attorneys, J. Craig
Carman, who was "assisted" in this effort by Noel Stewart.
See Tr. 296-299. In August, 1985 one of the T/S directors
and another T/S stockholder sued the Stewarts (et al.) in
the Court of Chancery of the State of Delaware, seeking
dissolution of T/S and a permanent injunction against its
further wasting of corporate assets. 49 By September, 1985,
T/S had retained new communications counsel, rescinded
its prior defense of misinterpretation of 47 CFR 21.3(b),
and entered its current defense of a complete lack of
knowledge thereof. At present, we are advised that T/S has
filed for a Chaper 11 bankruptcy seeking reorganization.
Tr. of Oral Arg., supra, at 1140-1146.
31. The ALJ correctly observed (I.D., para. 55) that, in
designating this matter for hearing, the HDO stated:
"There are several reasons behind this proscription
of premature construction. The process of applying
for a construction permit provides the Commission
with information on the location and nature of
proposed facilities, enabling the Commission to ensure
compliance with concerns such as Federal Aviation
Administration antenna tower regulations and
environmental regulations. More importantly, our
requirement that applicants complete their frequency
coordination process prior to construction would
be undermined if construction could be permitted
prior to applying for and receiving Commission
authorization; applicants who had constructed
would not have the flexibility to consider many
engineering adjustments that could otherwise solve
frequency coordination problems."
Id., at para. 7 (footnotes omitted): The HDO went on to
"The Commission has emphasized the importance
of construction permits in assuring efficient frequency
use in its recent rulemaking involving Public
Land Mobile Radio Services. See Revision and
Update of Part 22 of the Public Mobile Servs. Rules,
95 F.C.C.2d 769, 773 (1983). In addition to coordinating
with other carriers, in certain instances an
applicant proposing a station within a certain distance
of the Canadian or Mexican borders may have
to have the proposal coordinated with the respective
government. See Agreement Between United States
of America and Canada Concerning Coordination
and Use of Radio Frequencies Above 30 Mc/s, TIAS
No. 5205 (1962), revised in part, TIAS No. 5833
(1965); see generally The Radio Regulations (Geneva
1979) (containing provisions governing certain coordination
procedures applicable to countries including
Id., at n. 4. And that:
"If facilities are constructed prior to authorization,
the fact that facities [sic] have been built could be
used to pressure the Commission in its decision to
grant permits or licenses. WJIV, Inc. v. FCC, 231
F.2d 725 (D.C. Cir. 1956)."
Id., at n. 2. The selfsame reasons, of course, underlie
the proscription established by 47 U.S.C. 319(a). Although
the Commission has excused "relatively minor"
premature construction, "Congress did not intend for this
agency to license an entire station which had been built
prior to receiving a construction permit." Christian Broadcasting
of the Midlands, Inc., 103 FCC 2d 375, 378 (1986)
(clarifying King County Broadcasters, 55 RR 2d 1591
(1984)). Further, the HDO distinguished King County:
"Although the Commission took no action against
the construction in the King County case, that decision
involved a broadcast applicant and focused
almost exclusively on whether as a matter of law the
Commission must require the dismantling of a
preconstructed facility. In the instant case, involving
a common carrier applicant, the problems created by
premature construction would be extremely serious.
As the Commission has noted with regard to the
Public Land Mobile Services, due to frequency coordination
the current requirement that applicants
obtain authorization prior to construction guarantees
efficient spectrum allocation and utilization....
Revision and Update of Part 22 of the Public Land
Mobile Servs. Rules, 95 F.C.C.2d 769, 773 (1983).
Therefore, it is essential that we strictly enforce the
construction permit requirement for common carrier
Id., at n. 14 (emphasis added). Pleading "enormous
expense and hardship, possibly the dissolution of
TeleSTAR and loss by the originators and founders of the
venture of the right to participate in what is expected to
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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/m1/23/: accessed January 23, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.