Common carrier services: Wireless Communications Bureau; limitations waived on payments in settlement agreements among parties in contested licensing cases,

[Federal Register: May 18, 1999 (Volume 64, Number 95)]

[Rules and Regulations]

[Page 26883-26885]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr18my99-15]

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[DA 99-745]

Limitations Waived on Payments in Settlement Agreements Among Parties in Contested Licensing Cases

AGENCY: Federal Communications Commission.

[[Page 26884]]

ACTION: Partial waiver of rules.

SUMMARY: This document seeks to issue a limited waiver of the Commission's rules. The rules place limitations on settlements that are reached among parties in contested cases in order to prevent ``greenmail.'' The Bureau waives these rules for a 90-day period, effective upon publication of this document in the Federal Register. The Bureau waives these rules to permit parties to resolve certain contested proceedings on file at the Commission as of April 16, 1999. Parties can seek dismissal or withdrawal of pending applications, petitions, other pleadings (including finder's preference requests), and informal objections filedwith the Commission without limitation on the consideration promised, paid, or received for such dismissal or withdrawal.

DATES: The partial waiver of Sec. 1.935 (a) and (b) is effective May 18, 1999 through August 16, 1999.

FOR FURTHER INFORMATION CONTACT: Donald E. Johnson, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau, at (202) 418-7240.

SUPPLEMENTARY INFORMATION: This document, Public Notice DA 99-745, released April 16, 1999 is available for inspection and copying during normal business hours in the FCC Reference Center, 445 Twelfth Street, SW, Washington DC. The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW, Washington DC 20036 (202) 857-3800. The document is also available via the internet at http://www.fcc.gov/ Bureaus/Wireless/Public Notices/1999/index.html.

Synopsis

Introduction

In this document, the Wireless Telecommunications Bureau (Bureau) issues a limited waiver of Secs. 1.935(a) and 1.935(b) of the Commission's rules. These rules place limitations on settlements that are reached among parties in contested cases in order to prevent ``greenmail.'' The Bureau waives these rules for contested proceedings on file at the Commission as of April 16, 1999, the release date of this document, DA 99-745, to the extent specified herein, for a 90-day period, effective upon publication of this document in the Federal Register. The Bureau waives these rules to permit parties to resolve certain contested proceedings by seeking dismissal or withdrawal of pending applications, petitions, other pleadings (including finder's preference requests), and informal objections filedwith the Commission without limitation on the consideration promised, paid, or received for such dismissal or withdrawal.

This document also permits third parties to contribute to the settlement of certain contested proceedings without limitation on the consideration promised or paid. This document does not, however, waive the Commission's policy that prohibits settlements involving the award of licenses to persons who were not parties to the proceeding.

This 90-day waiver does not apply to any applications that are in hearing status. This document waives only the greenmail limitations on the settlement of pending matters; it does not waive any other Commission prohibitions or limitations on settlements. This document does not permit parties to ``settle'' mutually exclusive applications that were dismissed pursuant to the Paging Second Report and Order. Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging Systems, Second Report and Order and Further Notice of Proposed Rule Making, 62 FR 11616, released February 24, 1997. Pursuant to the Second Report and Order, the Commercial Wireless Division of the Wireless Telecommunications Bureau dismissed, without prejudice, all pending mutually exclusive paging applications and all pending paging applications (other than applications for nationwide and shared channels) filedafter July 31, 1996. Revision of Part 22 and Part 90 of the Commission's Rules to Facilitate Future Development of Paging Systems, WT Docket No. 96-18, DA 98-2534, Order (Wireless Telecomm. Bur. December 14, 1998). Unless the Commission modifies these decisions on reconsideration, parties may not ``settle'' these applications.

This document also does not permit parties to ``settle'' mutually exclusive applications that were dismissed pursuant to Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz and 38.6-40.0 GHz Bands, ET Docket No. 95-183, Report and Order and Second Notice of Proposed Rule Making, 63 FR 03075, released November 3, 1997. In this order, the Commission dismissed (1) all applications for which the 60-day filing window was not completed as of the date of the Freeze Order, DA 95-2341 (Chief, Wireless Telecom. Bureau, released November 13, 1995); (2) all major amendments filedon or after the release of the Freeze Order; and (3) all mutually exclusive applications that were not cured by an amendment-of-right filedon or before the release of the Report and Order and Notice of Proposed Rule Making, 61 FR 02452 released December 15, 1995. Unless the Commission modifies these decisions on reconsideration, parties may not ``settle'' these applications.

Parties are still required to seek Commission approval of the withdrawal or dismissal of applications, petitions, other pleadings, or informal objections but, during this 90-day period, they will not be required to certify that they have not received or will not receive consideration in excess of legitimate and prudent expenses in exchange for seeking a withdrawal or dismissal. Parties are not required to provide an itemized accounting or disclose the amount of consideration received or promised as the result of any settlement agreement.

The Bureau underscores its continuing strong support, however, for the rule limiting payments in settlement cases. We are taking this action because of the many cases currently pending before the Bureau, some of which are more than five years old. Providing for a settlement period, and a limited waiver of the ``greenmail'' rules will facilitate the resolution of these cases and serve the public interest by removing uncertainty that surrounds unresolved, pending applications and licensing matters. In addition, a limited settlement window will allow parties to resolve disputes where the cost and delay of protracted litigation will further hamper the provision of wireless service to the public. It does not appear that a limited, one-time waiver of the rules imposed on settlement agreements would either reward improper speculation or encourage the filing of abusive pleadings in the future.

The parties to any settlement agreement must receive Commission approval of the settlement before the settlement can take effect. The parties must file a request for approval of the settlement agreement no later than 90 days after publication of this document in the Federal Register. Each request for approval of a settlement agreement must contain a copy of all written agreements related to the settlement. All such settlement agreements must be properly executed, contain all supporting documentation, and demonstrate that the settlement constitutes a complete resolution of the case. Parties can redact the amount of consideration promised, paid, or received.

In addition, the first page of each request for approval of a settlement agreement must contain the following

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information: (1) a caption at the top of the page stating the following: ``Settlement Request Pursuant to DA 99-745;'' (2) a list of the parties to the contested proceeding for which settlement is being proposed; (3) a statement indicating the radio service(s) to which the settlement relates; (4) a list of all the FCC file numbers related to the settlement; and (5) a list of all the station call signs related to the settlement. Each request for approval of a settlement agreement also must include either a list of all applications and pleadings that were filedin the contested case or copies of the applications and pleadings. Further, all requests for approval of a settlement agreement must include a brief summary of the contested case that is being settled. Finally, if a settlement agreement concerns a contested case which requires a waiver, the parties must include a request for a waiver at the time of filing.

No settlement agreement will take effect until the Bureau releases a public notice approving the proposed settlement. The Bureau reserves the right to deny a request for approval of a settlement, if we find that a settlement in a particular case would not serve the public interest. Notwithstanding this 90-day waiver, the Commission will continue to take action on pending cases. Accordingly, parties are encouraged to reach settlements and file requests for approval of settlement agreements as expeditiously as possible.

No later than 90 days following publication of this document in the Federal Register, an original and four copies of all proposed settlement agreements must be filedwith the Commission's Secretary, Magalie Roman Salas, 445 Twelfth Street, SW, TW-A325, Washington, DC 20554, in accordance with section 1.51(c) of the Commission's rules. In addition, one copy of each pleading should be delivered to (1) Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 Twelfth Street, SW 4-A207, Washington, DC 20554; and (2) Public Reference Room, Federal Communications Commission, 445 Twelfth Street, SW, Washington, DC 20554.

Federal Communications Commission. Dianne J. Cornell, Associate Chief, Wireless Telecommunications Bureau.

[FR Doc. 99-12451Filed5-17-99; 8:45 am]

BILLING CODE 6712-01-P