Before theFEDERAL COMMUNICATIONS COMMISSION

Washington, D.C.20554

In the Matter of

Skybridge Spectrum Foundation, a nonprofitcorporation, and supporting companies:Intelligent Transportation & MonitoringWireless LLC, Environmentel LLC, VerdeSystems LLC, and Telesaurus Holdings LLC(each FCC licensees):

Petition for a declaratory ruling whether theCommunications Act including $332, or thejurisdiction of the Federal CommunicationsCommission, preempts State or Federal courtjurisdiction and awarding of monetary damagesand other action sought by one CMRS or PMRSservice provider against another, for violationof State or Federal antitrust law, tort law, andcertain other law.

(The first of two independent but related,concurrently-submitted petitions under 47 CFR$1.2. )

To the Commission

Public Notice

PETITION FOR DECLARATORY RULINGS

ocT r{N$r€dsndffi&olffiWffiff**

For Petitioners:Wanen C. Havens2649 Benvenue AvenueBerkeley C494704Phone: 510.841.2220. Fax: 510 7 40 3412

Nossaman LLPPatrick J. RichardSophie N. Froelich50 California Street. 34th FloorSan Francisco, CA 94lllPhone: 415.438.7278. Fax: 415.398.2438

October 14,2009

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

In the Matter of

Skybridge Spectrum Foundation, a nonprofit

corporation, and supporting companies:

Intelligent Transportation & Monitoring

Wireless LLC, Environmentel LLC, Verde

Systems LLC, and Telesaurus Holdings LLC

(each FCC licensees):

Petition for a declaratory ruling whether the

Communications Act including §332, or the

jurisdiction of the Federal Communications

Commission, preempts State or Federal court

jurisdiction and awarding of monetary damages

and other action sought by one CMRS or PMRS

service provider against another, for violation

of State or Federal antitrust law, tort law, and

certain other law.

(The first of two independent but related,

concurrently-submitted petitions under 47 CFR

§1.2.)

Docket ___________________

Public Notice ______________

To the Commission

PETITION FOR DECLARATORY RULINGS

For Petitioners:

Warren C. Havens

2649 Benvenue Avenue

Berkeley CA 94704

Phone: 510.841.2220. Fax: 510 740 3412

Nossaman LLP

Patrick J. Richard

Sophie N. Froelich

50 California Street, 34th Floor

San Francisco, CA 94111

Phone: 415.438.7278. Fax: 415.398.2438

October 14, 2009

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TABLE OF CONTENTS

THE TWO PETITIONS

1.1

1.2

1.3

1.4

Introduction and Summary ..........................................................................

Request to Place on Public Notice with Pleading Cycle and with

Statement of Intent to Issue a Decision .......................................................

Petition 1: Parties, Questions Posed (Matters in Controversy in Pending

Court Cases, and Similar Conflicts in Other Case Law), and Rulings

Requested.....................................................................................................

Petition 2: Parties, Questions Posed (Matters in Controversy in Pending

Court Cases, and Similar Conflicts in Other Case Law), and Rulings

Requested.....................................................................................................

4

7

8

12

PETITION 1

BACKGROUND and NEED

2.2

2.2

2.3

2.4

Immediate and Nationwide Importance:

Need to Extend the Commission’s Declaratory Ruling

Wireless Consumers Alliance (2000) 15 FCC RCD 17021 to Its Basis:

Fair Competition Among Competitors Providing Consumer Wireless

Services........................................................................................................

The FCC Can Issue the Requested Ruling Without Delving Into Facts of

Petitioners’ Pending State and Federal Court Litigation .............................

The Requested Ruling Will Provide Needed Guidance Including Under

“Chevron Deference” to Allow Proper Actions in and Limit Misguided

Decisions by State and Federal Trial and Appellate Courts, and Reduce

Competitor Proceedings and Hearings Before the FCC..............................

To Sharpen the Needed Guidance, the Requested Ruling Order Should

Find that the FCC Should State, in Opinions and Orders on Challenges

by an FCC Licensee against Another (including a Petition to Deny, or a

Petition to Revoke), What (if Any) FCC Rules, Communication Act

Sections, and/or FCC Orders Were Violated, Especially for the Private-

Rights-of-Action Purposes of §§ 206, 206, and 401(b) of the Act., but

also for the Antitrust-Law Purposes of §§ 152 Note, 313 and 314, and the

General, State-Law-Action Savings Purpose of § 414 ................................

12

13

13

14

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ARGUMENT

3.1

3.2

3.3

3.4

Summary Argument ....................................................................................

The FCC Findings of Lack of Preemption in Wireless-Consumer Actions

in In Re Wireless Consumers Alliance (“WCA”). Said Findings Remain

Valid, Are Required Under Recent US Supreme Court Authority, and

Are the Basis of this Petition.......................................................................

Substantially Deregulated Competitive Consumer Wireless, a Goal of the

Telecom Reform Act and the Commission, Can Result Only from Fair

Competition Among Competitors ...............................................................

Building Upon WCA, Findings Here of Non Preemption Are Required to

Allow State and Federal Court Actions to Police Unfair Competition, as

Congress Intended and as Supreme Court Rulings Mandate ......................

15

17

19

19

EXHIBITS - From and describing court cases giving rise to the Questions posed .........

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THE TWO PETITIONS

1.1

Introduction and Summary

This Petition filed October 14, 2009 is the same as the Petition Petitioners filed on

October 13, 2009 except for erratum changes and several additions that Petitioners determined

were appropriate to make. This October 14th

filed Petition is being served, not the October 13th

version, to the parties on the Certificate of Service.

A summary is provided by the descriptive section headings in the table of contents.

To make the Petition more readable, only the Argument section below is double

spaced.

Petitioners

Skybridge Spectrum Foundation (“SSF”) is a Delaware nonprofit corporation

organized and operated exclusively to support the wireless operations and public-benefit

objectives of US federal, state and local government with regard to Intelligent Transportation

Systems (“ITS”), environmental monitoring and protection (“Environment”), and other high

public interest wireless, in accord with § 501 (c) (3) of the Interval Revenue Code.

SSF hold FCC geographic licensees in most of the nation in the AMTS (217-220

MHz), 220 MHz, and M-LMS 900 MHz radio services. SSF obtained its FCC licenses by

outright charitable donations assignments, by disaggregation and partitioning, from

Environmentel LLC, Intelligent Transportation & Monitoring Wireless LLC, and Verde Systems

LLC (each of which assigned AMTS spectrum), and Telesaurus Holdings GB LLC (which

assigned M-LMS spectrum) (the “Four LLCs,” each majority owned and managed by Warren

Havens), and by Warren Havens individually (“Havens”) (who assigned 220 MHz spectrum)

(the Four LLCs and Havens together, the “SSF Supporters”) (SSF and the SSF Supporters also

called “Petitioners”).1

SSF and the SSF Supporters together hold from 6 to 9 MHz of geographic exclusive

sub-GHz licensed spectrum in most all of the nation. They are planning and developing

nationwide wireless for ITS and Environment, based on this spectrum, where the most essential

services for public safety and infrastructure efficiency will be provided at no charge to the

government and private sector end users. They have presented these matters to the FCC, NTIA,

1 Verde Systems LLC, Telesaurus Holdings GB LLC, and Havens also each hold certain VPC

licenses that are dedicated to use in the plan described herein, and until that time, are made

available, with the associated radio equipment, for use on a nonprofit basis to public safety

responders in the subject license areas in and near major Western US forests (in the States of

Arizona, New Mexico, Texas, Nevada, California - Sierra Mountains, Nebraska and North

Dakota). These VPC licenses are also noted here as some of them involve the Radiolink court

case, now before the US Ninth Circuit, described in Exhibits 3 and in the text below.

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US DOT and other Federal agencies, many State agencies, and wireless trade associations since

the year 1999.2

In pursuit of this plan, SSF and SSF Supporters filed three court cases against FCC

licensees (and their controlled and controller entities) listed and shown (by some pleadings and

court decisions) in Exhibits 1-3 hereto (the “Three Court Cases”). The named Defendants are all

FCC licensees and alleged licensed operators, and certain affiliates: Paging Systems Inc., and its

affiliate Touchtel, Inc. (together, “PSI”), Maritime Communications / Land Mobile LLC and its

(or one of its) predecessor(s) in interest, Mobex (together, “MCLM”); and Radiolink and Randy

Powers (together, “Radiolink”).

Each Petitioner is a FCC licensee, and PSI, MCLM and Radiolink are also each FCC

licensees.

The Three Court Cases

Each of the Three Court Cases is pending and not final, but in two courts reached

decisions dismissing Petitioners claims, and those decisions are now on appeal.

See Exhibits 1-3 below, and the Exhibits cover pages: these list and attach copies of

the Complaints, the court decisions dismissing the two of the cases’ Complaints, and pleadings

of Petitioners before the appeals courts.

Each of the Three Court Cases involve, in sum: Complaints filed in State or US

District Court, by all or some of Petitioners, against one or more of PSI, MCLM, and Radiolink

asserting some of the following (all of the following in the Three Court Cases together):

(a) as bases for some of the damage claims, and injuctive relief sought: (i)

violation of certain State laws, (ii) violation of FCC rules shown in FCC decisions that are final

(including no longer subject to any timely appeal), (iii) violation of FCC orders, including rules

that are “orders” under 47 USC §401(b), (iv) (in the two US District Court cases:) violation of

sections of the Communications Act (47 USC) as described in §§ 206 and 207 of the Act.

(b) damage claims regarding: (i) violation of Federal or State (California)

antitrust law, (ii) intentional interference with contracts, (iii) conversion, (vi) interference with

prospective economic advantage, (v) unjust enrichment, (vi) fraud, (vii) negligent

representation), and other torts.

(c) (in the US District Court case in New Jersey:) injunctive relief under 47 USC

§401(b) for violation of FCC orders.

2 In addition, SSF with assistance of the SSF Supporters are active in the development and

introduction of advanced wireless technology and equipment for the US private or professional

radio markets. See, for example, their website: www.tetra-us.us. This work is pursued on a

nonprofit public interest basis by SSF for reasons reflected in the just-cited website.

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Decisions by Trial Courts, Now on Appeal

These are provided in the Exhibits.

In sum, the California trial court and Court of Appeal found and upheld dismissal, and

the US District Court in Arizona (in the Radiolink case) dismissed the Complaint, since the

Complaint dealt with FCC licensees and FCC license matters, taking extremely broad view of

FCC and federal preemption, that appears to be forms of implied conflict or field preemption.

When even the fundamental elements of the Complaints, pleadings, and law on FCC

preemption are considered, the preceding is a fair summary of these decisions, despite the

decisions attempts to cast the findings and conclusions as good law, including consistent with the

Communications Act.

These decisions, made on motions to dismiss or demurrer (not summary judgment) (i)

broke with the FCC decision in Wireless Consumers Alliance (WCA), (ii) are at odds with US

Supreme Court authority on federal agency preemption (including Altria Group Inc. v. Good,

129 U.S. 538, 543 (2008), (iii) misinterpreted and misapplied other applicable authority on FCC

and federal preemption, (iv) misconstrued, by Defendant assertions, basic FCC rules and

decisions (on the basis of “judicial notice”). The decisions also badly misconstrued essential

facts asserted in the Complaints, creating straw-man arguments and defenses of the decisions,

and had other defects for decisions on motions to dismiss or demurrer.

These decisions and the direction of FCC preemption case law that these California

and Federal courts appears to seek, and in any case establish, with regard to excessively broad

FCC preemption, pose serious danger to the proper limits of FCC preemption, and thus to fair

competition among FCC licensees and thus to robust and fair wireless services to the public and

private markets.

The Two Petitions to the FCC

As further explained below, these Three Court Cases have created important cases in

controversy with regard to Sections of the Communications Act and FCC Rules based on which

this Petition for Declaratory Ruling (“Petition 1”), and Petitioners’ concurrently (in the same

week) filed independent but related other petition for declaratory ruling (“Petition 2”), are

presented and should be addressed.

Other, broader, similar controversy in case law across the nation, reflected in

Petitioners’ pleadings and court decisions in Exhibits 1-3, pertaining to the same Sections further

justify Commission decision on this Petition are also discussed below.

This filing is Petition 1.

Petition 2 is a Petition for declaratory ruling whether a FCC declaratory ruling

(“Ruling”) on preemption under § 332 of the Communications Act or otherwise under FCC

jurisdiction (including any Ruling under the this Petition 1) and other declaratory Rulings, that

apply to one or more FCC licensees subject of the Ruling is an “order” under §401(a) and (b) of

the Act and thus subject to US District Court injunctions to comply with the Ruling.

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1.2

Request to Place on Public Notice with Pleading Cycle

and with Statement of Intent to Issue a Decision

Due to the importance of the matters presented, Petitioners request that the FCC place

this Petition 1, and Petition 2, on Public Notice for comments and reply comments by interested

parties including PSI, MCLM, and Radiolink, various other licensees that may be affected by

Commission rulings on the Petitions, as well as organizations that may be interested such as

those who commented on the WCA petition. See attached Certificate of Service.

Placing the Petition on Public Notice with a pleading cycle will also establish a more firm

basis for the rulings on the Petition to receive “Chevron deference.” Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (“Chevron”). See Cass R.

Sunstein, "Chevron Step Zero," 92 Va. L. Rev. 187 (2006).

In addition, Petitioners will be submitting filings in the near future in the Three Court

Cases (again, see Exhibits 1-3)-- in the US Ninth Circuit Court (in the case of Petitioners verses

Radiolink) and in the California Court of Appeals (in the case of Petitioners verses PSI and

MCLM)3 (and likely later in the case of Petitioners vs. PSI and MCLM in the US District Court

in New Jersey)—requesting that those courts take certain actions and adopt scheduling so that

they may have the opportunity to consider the guidance from the Commission provided in

rulings on the Two Petitions, as well as for potential injunctions under Section 401(b) of the

Communications Act that may arise based upon said rulings.

For the purpose of these submittals to the Ninth Circuit and the California Court of

Appeals, and generally due to the importance of the Questions presented for Commission

rulings, Petitioners request that in placing the Two Petitions on Public Notice, the FCC indicate

that it plans to rule on the Two Petitions reasonably soon after the pleading cycle has ended.

3 And probably later in the case of Petitioners verses PSI and Mobex in the US District Court in

New Jersey.

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1.3

This Petition 1:

Parties,

Questions Posed

(Matters in Controversy in Pending Court Cases, and Similar Conflicts in Other Case Law),

And Rulings Requested

The Parties directly subject of Petition 1 are Petitioners on one side, and PSI, MCLM,

and Radiolink on the other side.

The matters in controversy involve the following questions for which Petitioners seek

declaratory rulings by the Commission (the “Questions”).4

Questions involving State court actions:

1. Can any litigation in or decision of a State Court, simply by being litigation

(not considering the claims presented and relief sought), constitute “State or

local government…authority to regulate the entry of or the rates charged” as

meant in the Communications Act § 332(c)(3)(A), or otherwise be preempted

by FCC jurisdiction?

Requested ruling in summary:

(i) No.

(ii) Remedy for a FCC licensee who believes any State court

litigation or decision does or may create such §332-prempted regulation:

Petition the FCC for a preemption order (and enforce said order if needed,

as to the other party in the litigation, by an injunction under

Communications Act §401(b): see Petition 2).

If the answer to question 1 is Yes, then:

2. (a) Can any litigation in a State Court claims of violation of State antitrust

law (including California’s Cartwright Act) be preempted under the

Communications Act § 332(c)(3)(A), or otherwise be preempted by FCC

jurisdiction?

(b) If so, which classes of said claims are preempted and which are not?

Requested ruling in summary:

(a) No.

(b) (Answer not relevant if answer to ‘(a)’ is “No.”)

4 In the Questions, unless otherwise provided in the context, the singular and plural forms of

words such as “claim” and “claims” and associated verbs are meant to covey the same meaning

for purposes of the Questions.

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If the answer to question 1 is Yes, then:

3. (a) Can any litigation in a State Court on claims of violation of State law

other than State antitrust law, including tort and contact law, that do not

challenge or tread upon any FCC decision or decision making authority

under the Communications Act and FCC rules, be preempted under the

Communications Act § 332(c)(3)(A), or otherwise be preempted by FCC

jurisdiction?

(b) If so, which classes of said claims are preempted and which are not?

Requested ruling in summary:

(a) No.

(b) (Answer not relevant if answer to ‘(a)’ is “No.”)

If the answer to question 3(a) is Yes, then:

4. (a) Can any litigation in a State Court on claims of violation of State law

other than State antitrust law, including tort and contact law, that do not

challenge or tread upon but are based on orders or decisions of the FCC that

are final (including no longer subject to any timely appeal thereof)—

including license revocation, termination,5 or cancellation, and license-

application decisions-- be preempted under the Communications Act §

332(c)(3)(A) (including by being construed as a form of regulation of market

“entry”), or otherwise be preempted by FCC jurisdiction?

(b) If so, which classes of said claims are preempted and which are not?

Requested ruling in summary:

(a) No.

(b) (Answer not relevant if answer to ‘(a)’ is “No.”)

Questions involving US District Court actions:

5. (a) Can any litigation in a US District Court on claims of violation of federal

antitrust law be preempted by any form of FCC preemption (including any

implied conflict or field preemption)?

(b) If so, which classes of said claims are preempted and which are not?

Requested ruling in summary:

(a) No.

(b) (Answer not relevant if answer to ‘(a)’ is “No.”)

5 Including automatic license terminations without specific Commission actions as provided for

in FCC rules §§ 1.955(a)(1)-(3), and § 1.946(c), and related radio-service specific rules regarding

required coverage and service by license construction deadlines.

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6. (a) Can any litigation in a US District Court on a claim under the

Communications Act §§ 206 and 207, or injunctive relief sought under

§401(b), that does not challenge or tread upon but is based on orders or

decisions of the FCC that are final (including no longer subject to any timely

appeal thereof)—including license revocation, termination,6 or cancellation,

and license-application decisions-- be preempted by any form of FCC

preemption (including any implied conflict or field preemption)?

(b) If so, which classes of said claims are preempted and which are not?

Requested ruling in summary:

(a) No.

(b) (Answer not relevant if answer to ‘(a)’ is “No.”)

7. (a) Can any claims in a US District Court of violation by a FCC licensee of

an FCC “order,” as that term is used in the Communications Act § 401(b),

for the purpose of an injunction from the court under that Section, be

preempted by any form of FCC preemption (including any implied conflict

or field preemption)?

(b) If so, which classes of said claims are preempted and which are not?

Requested ruling in summary:

(a) No.

(b) (Answer not relevant if answer to ‘(a)’ is “No.”)

8. (a) Is an entity a “common carrier” as that term is used in the

Communications Act §§ 206 and 206, where (i) said entity obtains and

maintains a FCC license for radio spectrum by error --(by any means, and

with or without fraud or gross negligence), such as spectrum already lawfully

and exclusively licensed to another entity, and (ii) said spectrum is

specifically classed as common carrier CMRS in § 20.9(a) of the FCC rules

and is also described in §20.9(b) (i.e., VPC, AMTS, and PCS) and the entity

did not obtain FCC approval of an application and certification under said §

20.9(b) for PMRS-only regulatory classification?

(b) Similarly, is an entity holding radio spectrum listed in §20.9(a) as CMRS

under a FCC license that lists said spectrum as PMRS only (with or without

also listing as PMRS, spectrum that is classed as PMRS in FCC rules or by

6 Including automatic license terminations without specific Commission actions as provided for

in FCC rules §§ 1.955(a)(1)-(3), and § 1.946(c), and related radio-service specific rules regarding

required coverage and service by license construction deadlines.

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FCC waiver or other FCC decision) presumptively a “common carrier” as

that term is used in the Communications Act §§ 206 and 207, where said

presumption prevails unless the entity successfully rebuts it in any legal

action taken against the entity under said §§ 206 and/ or 207?

Requested ruling in summary (see relevant Argument section below):

(a) Yes.

(b) Yes.

Questions involving State or US District Court actions:

9. For an entity to pursue—

(a) claims that are not preempted by the Communications Act §

332(c)(3)(A) or otherwise preempted by FCC jurisdiction, of violation of

State law in a State court or US District Court that are based on violation by

the defendant of a section of the Communications Act, a FCC rule, or a FCC

order, or

(b) claims in a US District Court under the Communications Act §§

206, 207, or 401(b) that are based on violation by the defendant of a section

of the Communications Act, a FCC rule, or a FCC order (where said section,

rule, or order are among those based on which private rights of action are

permitted by §§ 206, 207, or 401(b))—

does the FCC first have make a decision (final or not) (i) that the defendant

violated the subject section, rule, or order and (ii) that such violation was

“wrongful” (“wrongful” here meaning a material violation that was

deliberate, by gross negligence, repetitive, or otherwise of a nature that may

subject the violator to sanctions by the FCC)?

Requested ruling in summary:

(a)+(i), and (a)+(ii): No, and No.

(b)+(i), and (b)+(ii): No, and No.

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1.4

Petition 2:

Parties,

Questions Posed

(Matters in Controversy in Pending Court Cases (and Similar Conflicts in Other Case Law),

and Rulings Requested

The Parties directly subject of Petition 2 are Petitioners on one side, and PSI and

MCLM on the other side. Radiolink may be an interested party also.

In Petition 2: the Questions posed, similar conflicts in other cases, requested rulings

requested are described and the exhibits provided in Petition 2. The essential question is stated

at the end of Section ‘(i)’ above.

BACKGROUND and NEED

2.1

Immediate and Nationwide Importance:

Need to Extend the Commission’s Declaratory Ruling

Wireless Consumers Alliance (2000) 15 FCC RCD 17021

to Its Basis: Fair Competition Among Competitors Providing

Consumer Wireless Services

The need for the Declaratory Rulings requested herein is indicated in the preceding

sections, and a review of the court documents and decisions in the Exhibits. In addition:

The Commission’s decision in Wireless Consumers Alliance (2000) 15 FCC RCD 17021)

(“WCA”) arose out of and dealt principally with consumer tort claims against FCC licensed

operators in State courts and is generally cited for that purpose in court litigation and decisions.

However, claims by a FCC licensees against another FCC licensee for violation of State

tort law such as involved in each of the Petitioners’ Three Court Cases (see Exhibits 1-3),

including but not limited to fraud, interference with prospective economic advantage,

interference with contracts, and conversion, should be similarly addressed by the Commission.

In this regard, in addition to the unsettled issues in Petitioner’s Three Court Cases which

give rise to the questions set forth above, there are many other similar conflicts and unsettled

issues created in court cases and decisions across the nation. See cases cited in the court

pleadings and decisions in Exhibits 1-3.

As argued below, without FCC licensee competitors having clear rights to police each

other by State court actions of the nature of these Three Court Cases, competition to serve

consumers of wireless services (CMRS and PRMS) will suffer even if they have access to courts

as decided in WCA.

- 13 -

Congress’s and the FCC’s substantial deregulation of commercial wireless in the 1990s

increased the need for this policing: the “flip side” of federal deregulation of a market is robust

access to courts for action under State laws protecting fair competition and contracts.

2.2

The FCC Can Issue the Requested Ruling Without Delving Into

Facts of Petitioners’ Pending State and Federal Court Litigation

While the Questions presented are each based on matters in controversy in Petitioners’

Three Court Cases (see Exhibits 1-3), responding to the Questions does not require delving into

or verifying facts in any of the Three Court Cases.

Rulings on the Questions presented will satisfy the purposes of the Petition including to

give needed guidance to the courts, the parties currently involved in the Three Court Cases, and

FCC licensees and other entities that may in the future bring State or Federal court actions on

matters addressed by the rulings.

2.3

The Requested Ruling Will Provide Needed Guidance

Including Under “Chevron Deference” to

to Allow Proper Actions in and Limit Misguided Decisions

by State and Federal Trial and Appellate Courts,

and Reduce Competitor Proceedings and Hearings Before the FCC

First, see Section “(ii)” above with regard to placing this Petition on Public Notice

including so that FCC rulings on the Questions presented will be clearly accorded “Chevron

deference” by courts.

The decisions in Petitioners Three Court Cases to date (see Exhibits 1-3), and cases cited

and misconstrued therein, demonstrate the need for the FCC to provide rulings on the Questions

presented herein.

The need is further made clear by the current status of two of the Three Court Cases

which require in the near future guidance from the requested rulings is to provide guidance to the

California appeals court and possibly soon the California Supreme Court, and to the Ninth

Circuit: see third paragraph and three subjections of Section 2.1.1 below.

In addition, the Questions posed in Petition 2 (filed and served the same week as this

Petition 1), summarized at the end of Section “(i)” above, involve one practical means—US

District Court injunctions under the Communications Act §401(b) enforcing FCC orders-- of

providing force of law to the Declaratory Rulings order on the Questions posed in this Petition 1.

Without providing this guidance, FCC licensees (including Petitioners and the defendants

in Petitioners’ Three Court Cases) and others will pursue far more issues before the FCC than

they would if this guidance is provided, and especially if the guidance is in accord with WCA and

other authority that properly interprets and applies FCC preemption and jurisdiction.

- 14 -

2.4

To Sharpen the Needed Guidance, the Requested Declaratory Ruling Order Should Find

that the FCC Should State, in Opinions and Orders on Challenges by an FCC Licensee

against Another (including a Petition to Deny, or Petition to Revoke),

What (if Any) FCC Rules, Communication Act Sections, and/or FCC Orders Were Violated,

Especially for the Private-Action-Rights Purposes of §§ 206, 206, and 401(b) of the Act,

but also for the Antitrust-Law Purposes of §§ 152 Note, 313 and 314,

and the General, State-Law Action Savings Purpose of § 414

One of the Questions posed above, Question 9, seeks a ruling related to the above

captioned topic, which Petitions believe should be answered, that a preliminary decision by the

FCC determining liability or wrongfulness is not a prerequisite for the described court actions to

proceed.

However, defendants in Petitioners’ Three Court Cases (see Exhibits 1-3) make

assertions, and several of the judges involved in those cases give indications, that unless the FCC

has previously identified violations as described in the caption above, the court action lacks

foundation. Also, it is likely that in other cases, past and future, similar defensive assertions and

judicial indications and doubts will arise.

Thus, Petitioners ask that in response to this Petition, the FCC make the finding requested

in the caption above.

In sum, without that finding and FCC practice under that finding, the above-cited

Communication Act sections will have considerably less practical utility, and court litigation

pursuant to those sections will be less efficient, leading ultimately to less robust, timely, and

competitive communications services to the public and private markets.

- 15 -

ARGUMENT

More detailed and additional arguments and authority than provided in this Argument

section below are provided in Petitioners pleadings included in Exhibits 1-3 hereto. In addition,

the pleadings filed in the in support of the petition by WCA in the WCA docket, WT Docket No.

99-263, found on the FCC ECFS website provide additional relevant materials.

3.1

Summary Argument

3.1.1. Argument building upon essential conclusions in WCA.

As this Commission has previously held: “Section 332 does not generally preempt the

award of monetary damages by state courts” based on state tort or contract claims. In re Wireless

Consumers Alliance Inc. 15 FCCR 17021 (2000).

Mobile service providers who have harmed consumers or competitors, however,

increasingly argue that the Federal Communications Act was intended to severely limit -- or all

together preclude!-- judicial relief in the form of compensatory damages.

See Exhibits 1-3 hereto: Based on assumed broad FCC preemption:

(i) In the recent unpublished decision in Havens, et al. v. Mobex

(September 25, 2009) (see Exhibit 1 hereto),7 the California appellate court affirmed dismissal of

all plaintiff’s claims for damages, even those claims based on the FCC’s revocation and

cancellation (by final action) of licenses that defendants maintained after their automatic

termination, and even claims unrelated to the issuance or revocation of any license.8

7 See also Exhibit 4 for a discussion of other court decisions that call for Commission response

to the questions raised in this Petition 1 and the concurrently filed Petition 2.

8 Appellants have submitted, o the same day as this Petition is filed with the FCC, a petition for

rehearing of this decision, and if that is not granted and the decision reversed, they intend to file

an appeal to the California Supreme Court. (This footnote continues on the next page.)

One of the grounds asserted for rehearing is so that the court may consider the FCC’s ruling

on this Petition, if that is timely rendered. Similarly, if an appeal is submitted to the California

Supreme Court, the FCC’s ruling will be of importance.

- 16 -

(ii) In its decision in Telesaurus VPC v. Randy Power et al, the Arizona US

District Court dismissed all claims for damages, even those based on federal law under sections

206 and 207 of the Federal Communications Act (“FCA”).

(iii) In defendants motion to dismiss in Skybridge Spectrum Foundation et.

al. v. PSI and MCLM in the NJ US District Court, PSI and MCLM argue (relying in part on the

three decisions noted in this paragraph above and provided in Exhibits 1-3) that all of Petitioners’

state law claims, of a similar nature as those in Havens, et. al. v. Mobex, are preempted, and also

that their claims under FCA §§ 206, 207, and 401(b) are also fully preempted (other grounds for

dismissal are also asserted not relevant to this FCC Petition).

A declaratory ruling is therefore urgently needed to reaffirm and extend the

Commission’s declaratory ruling in In re Wireless Consumers Alliance Inc. to hold that the

principles set forth in that declaratory ruling, which are entirely consistent with and indeed

required by recent U.S. Supreme Court authority as to preemption of state law claims, apply with

equal force to state law claims related to “market entry” as well as “rate setting.”

3.1.2. Argument for new premise for non-preemption than assumed in WCA.

However, for reasons given in the remainder of this Section 1.1 below, and as

reflected in Question 1 posed above, while Petitioners believe the Commission reached

essentially correct conclusions in WCA, they believe the Commission erred in not commencing

by finding that no State court action or action under State law claims in a State or Federal court,

As reflected in part in the certificate of service, Petitioners also are seeking comment by the

office of the California Attorney General on this FCC Petition, for reasons similar to why this

Attorney General office commented in support of the petition in WCA.

California is the State with the most commercial and private wireless in the nation, and

resolving the issues of this Petition for Declaratory Ruling in the California courts, and also in

the Ninth Circuit, will set important precedents for the nation.

- 17 -

can constitute regulation by State or local government as meant in the Communication Act

§332(c)(3)(A).

For purposes of this Section 2.1.1, Petitioners refer to and incorporate Section II of

the Comments Of Public Citizen, Inc. On The Petition Of The Wireless Consumers Alliance,

Inc., in WT 99-263, dated September 10, 1999 (available on the FCC ECFS, thus not attached

here).

In this regard, Petitioners have asserted in their pleadings in the Three Court Cases

(see Exhibits 1-3 hereto) similar arguments in shorter form, the decisions in these cases to date

have not addressed or accepted these threshold arguments.

While these and other court decisions have found otherwise, the FCC should, as the

expert in this matter, address that threshold question and by such provide expert agency guidance

to court under “Chevron deference.” Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) (“Chevron”). In this regard, see section “(ii)” above

regarding the importance of placing this Petition on Public Notice with regard to Chevron

deference.

3.2

The FCC Findings Of Lack Of Pre-Emption In Wireless Consumer Actions In

In Re Wireless Consumer’s Alliance.

Said Findings Remain Valid, Are Required Under Recent

US Supreme Court Authority, and Are the Basis of This Petition

Section 332(c)(3)(A) provides an express preemption clause that provides that states

may “regulate the market entry of or the rates charged by any commercial or private mobile

service provider.”

The Wireless Consumer’s Alliance declaratory ruling arose out of a state court

decision in California to dismiss plaintiff’s claims for damages on the basis that those claims

related to rate-setting and were therefore preempted.

- 18 -

The Commission, however, appropriately reviewed the precise language of section

332, which only prevents a state from “regulating” rate setting or market entry, not all claims for

that might related to rates or market entry.

Unless a claim for damages under state law “directly” challenges an FCC

determination as to rates or market entry, the claims based on state tort or contract law are simply

not “regulation.” Only claims that “directly” tread upon a specific area reserved to the FCC,

therefore, fall within the statute and will be preempted.

Armed with the Commission’s guidance in Wireless Consumer’s Alliance, the state

appellate court, in the dispute giving rise to that petition for a declaratory ruling, reversed the

trial court’s dismissal. The Court relied on the declaratory ruling to hold that claims alleging

false advertising with respect to rates charged by an FCC licensed service provider were not

preempted and could therefore proceed. (Spielholz v. Superior Court (2001) 86 Cal.App.4th

1366)

That court properly recognized a “presumption against preemption.” (Id. at 1072)

The United States Supreme Court, recognizing the constitutional basis of state law

claims for damages under the traditional police powers, recently held that courts interpreting a

pre-emption clause susceptible of more than one plausible reading should accept the reading that

“this disfavors preemption.” (Altria Group Inc. v. Good, 129 U.S. 538, 543 (2008). In addition,

see Section 1.5 above.

Under the language of Section 332, there is no basis to provide a different standard for

claims relating to “market entry” as distinguished from claims relating to “rate setting.” In both

cases there should be a “presumption against preemption.” In neither case should a state law

claim for damages be deemed to be tantamount to state “regulation” unless the state court claim

- 19 -

directly challenges or seeks to “second guess” an FCC decision regarding regulation of rates or

market entry in telecommunications.

More detailed and additional arguments and authority are provided in Petitioners

pleadings included in Exhibits 1-3 hereto.

3.3

Substantially De-Regulated Competitive Consumer Wireless,

A Goal of the Telecom Reform Act, and the Commission,

Can Result Only drom Fair Competition Among Competitors

As one commentator has explained,

FCC preemption is not complete or total. … The deregulation laws that

eliminated specific federal acceptance of telecommunications company tarrifs has

created a much larger role for state law, and this fact is sufficient to preclude a

finding that Congress intended completely to occupy the field, following the 1996

Act. But the scope of post-deregulation preemption is fragmented with diverging

court opinions, and requires a particularized examination in each setting.

O’Reilly, J., Federal Preemption of State and Local Law: Legislation, Regulation and

Litigation, Ch. 11, p. 100 (ABA 2006) (citations omitted); see, also, Wireless Consumer’s

Alliance, 15 F.C.C. R.C.D. at 17022, ¶ 2.

Petitioners will submit additional arguments and authority on this section’s topic in a

pleading if this Petition is placed on Public Notice with a pleading cycle, or in a supplement to

this Petition.

3.4

Building upon WCA,

Findings Here of Non Pre-Emption Are Required

To Allow State and Federal Court Actions to Police Unfair Competition,

As Congress Intended and as Supreme Court Rulings Mandate

Because the defendants here and in other cases, who engage in (or are with good cause

accused of engaging in) unfair anti-competitive conduct, damaging to plaintiffs and the markets

involved, continue to argue that the Federal Communications Act provides broad preemption, a

declaratory ruling rejecting this erroneous position, now adopted by some courts, and on appeal

in both the California courts and the US Ninth Circuit court, is called for.

- 20 -

Public policy is thwarted, not served, by the broad and erroneous application of pre-

emption adopted by some courts, including the Congressional policy mandate to the FCC of

licensing and regulating / deregulating wireless communications “in the pubic interest,

convenience, and necessity.”

[The rest of this page is intentionally left blank.]

- 21 -

Respectfully submitted, this 14th day of October, 2009

PETITIONERS, as defined above, by

Warren C. Havens

President of each Petitioner

/s/

Patrick J. Richard, Esq.

Nossaman LLP

- 22 -

Exhibits

List of Exhibits

Note: Among the Petitioners, “AMTS Consortium LLC” listed in some documents below is now

called “Environmentel LLC,” and “Telesaurus VPC LLC” listed in some documents below is

now called “Verde Systems LLC.” These LLCs obtained and filed new names with the State of

Delaware in early 2009.

Exhibits 1 are regarding the case (of the “Three Court Cases”) now in the California Court of

Appeal on a petition for rehearing and stay, and that, if said petition is not granted and the

decision upholding dismissal is not reversed, will be appealed to the California Supreme Court.

This case involves:

(1) Havens et al., v. Mobex Network Services, et al., Case No. CIV-463985 in the Superior Court

of the State of California for the County of San Mateo and

(2) Appeal, Case No. A122489, In the Court of Appeal of the State of California First Appellate

District, Division One, regarding San Mateo County Super. Ct. No. CIV-463985.

Plaintiffs and Appellants are all but one of the Petitioners in this FCC Petition: Warren Havens,

AMTS Consortium LLC (now called Environmentel LLC), Telesaurus VPC LLC (now called

Verde Systems LLC), Intelligent Transportation & Monitoring Wireless LLC, and Telesaurus

Holdings GB LLC. All are FCC licensees.

Defendants are Paging Systems Inc., Maritime Communications/ Land Mobile LLC, and Mobex

Network Services (which MCLM alleges to have bought and subsumed) (and their controlled

and controlling entities). All named Defendants are FCC licensees.

Note: Several of the Exhibits 1 may be, in the hard-copy filed today, Oct 14, 2009, with

the FCC Secretary, out of order, and with several with labels switched. However, the PDF copy

served to parties on the Certificate of Service has these in the order and labeling given below.

Exhibit 1.1 Plaintiffs’ (most of the Petitioners in this FCC Petition) Second Amended

Complaint (the operative complaint, the “Complaint”)

Exhibit 1.2 Court decision granting demurrers and dismissing Complaint

Exhibit 1.3 Appellants’ opening appeal brief in the California Court of Appeal

Exhibit 1.4 Appellants’ appeal reply brief

Exhibit 1.3 Court of Appeal decision sustaining trial court dismissal

Exhibit 1.6 Appellants’ petition for rehearing and for stay before the Court of Appeal

- 23 -

Exhibits 2 are regarding the case (of the “Three Court Cases”) now on appeal before the US

Court of Appeals Ninth Circuit.

This case involves:

(1) Telesaurus VPC LLC v. Randy Power et al., Civil Case No. CV07-1311-PHX-NVW, In the

United States District Court, District of Arizona, Phoenix Division, and

(2) Appeal, Case No. 09-15446, In the United States Court of Appeals for the Ninth Circuit, on

appeal from the United States District Court, District of Arizona, Phoenix Division, Civil Case

No. CV07-1311-PHX-NVW.

Plaintiff and Appellant, an FCC licensee, is one of the Petitioners in this FCC Petition:

Telesaurus VPC LLC (now called Verde Systems LLC).

Defendants, each FCC licensees, are Randy Powers and Radiolink.

Exhibit 2.1 Plaintiff’s (one of the Petitioners in this FCC Petition) First Amended

Complaint (the operative complaint, the “Complaint”)

Exhibit 2.2 Court Order dismissing Complaint

Exhibit 2.3 Appellant’s opening appeal brief in the US Court of Appeals Ninth Circuit

Exhibit 2.4 Appellant’s appeal reply brief

Exhibits 3 are regarding the case (of the “Three Court Cases”) in the US District Court for the

District of New Jersey.

This case involves:

Skybridge Spectrum Foundation, et al., v. Mobex Network Services, LLC et al. (including Paging

Systems Inc.) Civil Action No. 08-CV-03094-KSH-PS, In the United States District Court for

the District of New Jersey.

Plaintiffs and Appellants are all of the Petitioners in this FCC Petition: Skybridge Spectrum

Foundation, Warren Havens, AMTS Consortium LLC (now called Environmentel LLC),

Telesaurus VPC LLC (now called Verde Systems LLC), Intelligent Transportation & Monitoring

Wireless LLC, and Telesaurus Holdings GB LLC. All are FCC licensees.

Defendants are Paging Systems Inc., Maritime Communications/ Land Mobile LLC, and Mobex

Network Services (which MCLM alleges to have bought and subsumed) (and their controlled

and controlling entities). All named defendants are FCC licensees.

Exhibit 3.1 Plaintiffs’ (all of the Petitioners in this FCC Petition) First Amended

Complaint (the operative complaint, the “Complaint”)

Exhibit 3.2 Plaintiffs’ brief in opposition to defendants PSI’s and MCLM’s Omnibus

Motion to Dismiss the First Amended Complaint

- 24 -

Exhibit 3.3 Court Order—Consent Order Dismissing Joint Omnibus Motion to

Dismiss without Prejudice & Stipulation to Stay Action

The Exhibits listed above follow.

There are in two PDF files, with page separators between individual Exhibits.

Certificate of Filing and Service

I, Warren C. Havens, certify that I have, on this 14th day of October, 2009, filed as described

below, and caused to be served, by placing into the United States Postal Service system with

first-class postage affixed, and/ or noted emailed as described below, a copy of the foregoing

Petition for Declaratory Ruling to the following. Copies served by email are sent the full

Petition including exhibits. Copies served only by mail are sent only the text.

:

1 – FCC

Filed in hard copy, via hand delivery, to:

Marlene H. Dortch, Secretary

Federal Communications Commission Office of the Secretary

c/o Natek, Inc.,

236 Massachusetts Avenue, N.E.

Suite 110

Washington, DC 20002

- - - - - - - - - -

Julius Genachowski

Chairman

Via email to: julius.genachowski@fcc.gov

Michael J. Copps

Commissioner

Via email to michael.copps@fcc.gov

Robert M. McDowell

Commissioner

Via email to robert.mcdowell@fcc.gov

Mignon Clyburn

Commissioner

Via email to: mignon.clyburn@fcc.gov

Meredith Attwell Baker

Commissioner

Via email to: meredithattwell.baker@fcc.gov

- - - - - - - - - -

Colin Crowell, Senior Counselor to Chairman Genachowski

Via email to: colin.crowell@fcc.gov

Bruce Gottlieb,

Chief Legal Advisor to Chairman Genachowski

Via email to: bruce.gottlieb@fcc.gov

Jennifer Schneider,

Legal Advisor to Commissioner Copps

Via email to: jennifer.schneider@fcc.gov

Angela Giancarlo,

Senior Legal Advisor to Commissioner McDowell

Via email to: angela.giancarlo@fcc.gov

Renee Crittendon, Senior Legal Advisor to Commissioner Clyburn

Via email to: renee.crittendon@fcc.gov

William Freedman,

Acting Senior Legal Advisor to Commissioner Baker

Via email to: william.freedman@fcc.gov

Erin McGrath,

Acting Legal Advisor for Commissioner Attwell

Baker

Via email to: erin.mcgrath@fcc.gov

- - - - - - - - - -

Ruth Milkman,

Chief, Wireless Telecommunications Bureau

Via email to: ruth.milkman@fcc.gov

- - - - - - - - - -

James Arden Barnett, Jr.,

Chief, Public Safety & Homeland Security Bureau

Via email to: james.barnett@fcc.gov

Scot Stone,

Deputy Chief, Mobility Division, PS&HSB

Via email to: scot.stone@fcc.gov

Jeffrey Tobias

Mobility Division, PSHSB

Via email to: jeff.tobias@fcc.gov

- - - - - - - - - -

The Intergovernmental Advisory Committee

Attention to:

Gregory Vadas Via email to: gregory.vadas@fcc.gov

- 26 -

2 – Parties to the State and Federal court litigation described in Exhibit 1

-- Maritime Communications/ Land Mobile --

Dennis Brown

FCC Counsel for MCLM (including Mobex)

8124 Cooke Court, Suite 201

Manassas, VA 20109-7406

Via FedEx Overnight

and email to d.c.brown@att.net

Newdorf Legal

Litigation Counsel for MCLM (including Mobex)

David B. Newdorf

220 Montgomery Street, Suite 1850

San Francisco, CA 94104

Graham Curtin, P.A.

Litigation Counsel for MCLM (including Mobex)

Robert W. Mauriello, Jr., Esq.

Gina M. Graham, Esq.

4 Headquarters Plaza

P.O. Box 1991

Morristown, NJ 07962-1991

Sandra DePriest

Donald DePriest Owners and Controlers of MCLM (including Mobex)

206 North 8th

Street

Columbus, MS 39701

- - - - - - - - - -

-- Paging System Inc.--

Audrey P. Rasmussen

FCC Counsel to Paging Systems, Inc. (“PSI”)

Hall, Estill, Hardwick, Gable,

Golden & Nelson, P.C

1120 20th

Street, N.W.

Suite 700, North Building

Washington, DC 20036-3406

Via FedEx Overnight

and email to: arasmussen@hallestill.com

Manatt, Phelps & Phillips, LLP

Litigation counsel for PSI

Eugene L. Hahm, Esq.

Christopher D. LeGras, Esq.

1001 Page Mill Road, Building 2

Palo Alto, CA 94304

Manatt, Phelps & Phillips, LLP

Litigatin counsel for P:SI and Touch Tel Corp.

Kenneth D. Friedman, Esq.

7 Times Square

New York, New York 10036

Robert Cooper

President

Touch Tel Corp., Affiliate and Agent of PSI

805 Burlway Rd.

Burlingame, CA 94010

- - - - - - - - - -

-- Radiolink and Randy Powers --

Kathi Mann Sandweiss

Roger L. Cohen

Litigation Counsel to Radiolink and Randy Power

JABURG & WILK, P.C.

3200 North Central Avenue, Suite 2000

Phoenix, Arizona 85012

Via FedEx Overnight

and email to kms@jaburgwilk.com

rlc@jaburgwilk.com

Randy Power

RadioLink Corporation

Randy L Power

2602 W LONE CACTUS DR. #A

Phoenix, AZ 85027

- 27 -

3 - Others With Expressed or Potential Interest

(Petitioners also intend to provide copy by email to persons serving the following organizations.)

Jerry Brown

Attorney General, State of California

Attorney General’s Office California Dept. of Justice

Attn: Public Inquiry Unit

P.O. Box 944255

Sacramento, CA 94244-2550

Richard Blumenthal

Attorney General, State of Connecticut

Office of the Attorney General

55 Elm Street

Hartford, Connecticut 06106

Also via email to: attorney.general@po.state.ct.us

J.B. Van Hollen

Attorney General, State of Wisconsin

Wisconsin Department of Justice

P.O. Box 7857

Madison, WI 53707-7857

- - - - - - - - - -

The National Association of Regulatory Utility

Commissioners

James Bradford Ramsay, General Counsel

1101 Vermont Avenue, Suite 200

Washington, DC 20005

The National Association of Telecommunications

Officers and Advisors

Mary Beth Henry, President

Deputy Director, Mt. Hood Cable Regulatory

Commission/City of Portland

1120 SW 5th Avenue, #1305

Portland, OR 97204

The National Association of Telecommunications

Officers and Advisors

Ken Fellman, President-Elect

Kissinger & Fellman, P.C.

3773 Cherry Creek North Drive

Ptarmigan Place, Suite 900

Denver, CO 80209

SCAN-NATOA — States of California & Nevada

Jonathan Kramer

Kramer Telecom Law Firm, P.C.

2001 S. Barrington Ave., Suite 306

Los Angeles, CA 90025-5379 USA

U.S. PIRG: The Federation of State PIRGs

Amina Fazlullah, Counsel

Federal Advocacy Office

218 D Street SE

Washington, DC 20003

Public Citizen

1600 20th Street, NW

Washington, DC 20009

Filed Electronically. Signature on Filed ___________________________________

Warren Havens