Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No. EB-08-IH-0600
)
Wireless Telecommunications, Inc. NAL/Acct. No.
) 200832080094
Licensee of Various Authorizations in the
Broadband Radio Service ) FRN No. 0005023817
)
)
ORDER
Adopted: September 5, 2008 Released: September 5, 2008
By the Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Wireless
Telecommunications Inc. ("WTCI"). The Consent Decree terminates an
investigation by the Bureau against WTCI for possible violations of
Section 310(d) of the Communications Act of 1934, as amended, and of
Section 1.948 of the Commission's Rules, regarding possible
unauthorized transfers of control of Commission authorizations.
2. The Bureau and WTCI have negotiated the terms of the Consent Decree
that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether WTCI possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that WTCI shall make its voluntary contribution
to the United States Treasury, as specified in the Consent Decree, by
mailing a check or similar instrument payable to the order of the
Federal Communications Commission, to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by
wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For payment by credit card, an
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the NAL/Account number in block number 23A
(call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). WTCI will also send electronic notification on
the date said payment is made to Ben.Bartolome@fcc.gov, and
Gary.Oshinsky@fcc.gov
8. IT IS FURTHER ORDERED that WTCI will file reports with the Commission
ninety days after the Effective Date, twelve months after the
Effective Date, and annually for a period of three years thereafter.
Each report shall include a compliance certificate from an officer, as
an agent of WTCI, stating that the officer has personal knowledge that
WTCI has established operating procedures intended to ensure
compliance with this Consent Decree, together with an accompanying
statement explaining the basis for the officer's compliance
certification. All reports shall be submitted to the Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554.
9. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to Robert J. Keller, Esq., Law Offices of Robert J. Keller,
P.C., P.O. Box 33428 - Farragut Station, Washington, D.C. 20033-0428.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of ) File No. EB-08-IH-0600
Wireless Telecommunications, Inc. ) NAL/Acct. No.
200832080094
Licensee of Various Authorizations in the )
Broadband Radio Service FRN No. 0005023817
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") of the Federal Communications Commission
and Wireless Telecommunications, Inc. ("WTCI" or the "Company") hereby
enter into this Consent Decree for the purpose of terminating the Bureau's
investigation into whether WTCI violated Section 310(d) of the
Communications Act of 1934, as amended, and Section 1.948 of the
Commission's Rules, regarding unauthorized transfers of control of
Commission authorizations.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Balun" means Thomas M. Balun, principal shareholder of WTCI, and
includes his heirs, successors, and assigns.
c. "Bankruptcy Case" means In re Wireless Telecommunications, Inc., and
Wireless Ventures III, Inc., Case No. 5-02-03994 (and, prior to
September 12, 2002, Case No. 1-00-02188) filed and currently pending
in the Bankruptcy Court.
d. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
e. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
f. "Court" or "Bankruptcy Court" means the United States Bankruptcy Court
for the Middle District of Pennsylvania with jurisdiction over the
Bankruptcy Case.
g. "Effective Date" means the date on which the Commission releases the
Adopting Order.
h. "Investigation" means the investigation initiated on November 28,
2007, by the Bureau into whether WTCI violated Section 310(d) of the
Communications Act of 1934, as amended, and Section 1.948 of the
Commission's Rules, regarding possible unauthorized transfers of
control of Commission authorizations.
i. "King" means Leroy A. King, Jr., and Kathy Parks King, who were former
minority shareholder(s) of WTCI.
j. "Licenses" means collectively the incumbent station licenses and Basic
Trading Area (BTA) authorizations listed in Attachment A to this
Consent Decree.
k. "Master Settlement Agreement" means the agreement, dated June 3, 2005,
between, inter alia, WTCI and the FCC, as approved by the Bankruptcy
Court on December 6, 2005. Order Approving Settlement With the Federal
Communications Commission (Bankr. M.D. Pa.; December 6, 2005).
l. "Order" or "Adopting Order" means an Order of the Commission adopting
the terms of this Consent Decree without change, addition, deletion,
or modification.
m. "Parties" means WTCI and the Bureau. "Party" means any one of the
foregoing entities.
n. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
o. "Stock Pledge Agreement" means the agreement, dated September 8, 1995,
pledging Balun's WTCI shares as security for personal indebtedness to
King, and granting King the right to vote the pledged shares in the
event of a default, unless prohibited by law.
p. "WTCI" and "Licensee" means Wireless Telecommunications, Inc. and its
successors-in-interest and assigns.
II. BACKGROUND
2. WTCI is the licensee of six BTA Authorizations in the Broadband Radio
Service, and five incumbent station licenses, as listed in Attachment
A. WTCI acquired the BTA Authorizations as a result of successful
bidding in Spectrum Auction No. 6 and participated in the Commission's
installment payment plan. On November 28, 2007, the Bureau initiated
the Investigation into whether WTCI, which was granted bankruptcy
protection on June 9, 2000, had engaged in possible unauthorized
transfers of control of its Licenses. Specifically, the Investigation
focused on whether, in July 2003, King assumed control of WTCI from
Balun, the former president, pursuant to the Stock Pledge Agreement
without prior Commission consent. The information before the Bureau
further suggested that, in September 2006, Balun reassumed control of
WTCI, by redeeming his pledged shares under the Stock Pledge
Agreement, also without prior Commission consent.
III. TERMS OF AGREEMENT
3. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
4. Jurisdiction. The parties acknowledge: (a) that the Commission has
jurisdiction over WTCI and the matters that are the subject of this
Consent Decree; (b) that WTCI has the authority to enter into and
adopt this Consent Decree; provided however, that WTCI must seek and
obtain prior approval of the Bankruptcy Court as provided in Paragraph
Eight herein; and (c) that WTCI's entry into the Consent Decree falls
within the regulatory and police power exception to 11 U.S.C. S:
362(b)(4).
5. Effective Date: Violations. The Parties agree that this Consent Decree
shall become effective on the Effective Date. Upon the Effective Date,
the Adopting Order and this Consent Decree shall have the same force
and effect as any other Order of the Bureau. Any violation of the
Adopting Order or of the terms of this Consent Decree shall constitute
a separate violation of a Bureau Order, entitling the Bureau to
exercise any rights and remedies attendant to the enforcement of a
Commission Order.
6. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate the
Investigation. WTCI understands that the Bureau's commitment to
terminate the investigation is conditioned upon WTCI's compliance with
its obligations as set forth in this Consent Decree, including WTCI's
obligation to seek and obtain Bankruptcy Court approval as provided in
Paragraph Eight herein; WTCI making the voluntary payment as provided
herein following receipt of such approval; and there being no
successful challenge, at any time, to WTCI's right to make such
payment. The Bureau further agrees that in the absence of new material
evidence, the Bureau will not use the facts developed in the
Investigation through the Effective Date, or the existence of this
Consent Decree, to institute, on its own motion, any new proceeding,
formal or informal, or take any action on its own motion against WTCI
concerning the matters that were the subject of the Investigation. The
Bureau also agrees that it will not use the facts developed in the
Investigation through the Effective Date, or the existence of this
Consent Decree, to institute on its own motion any proceeding, formal
or informal, or take any action on its own motion against WTCI with
respect to WTCI's basic qualifications, including its character
qualifications, to be a Commission licensee or hold Commission
authorizations.
7. Voluntary Contribution. WTCI agrees that, subject to Bankruptcy Court
approval as provided in Paragraph Eight herein, it shall undertake the
obligation to make a voluntary contribution to the United States
Treasury in the amount of One Hundred Thousand Dollars ($100,000).
WTCI shall, within three (3) business days of the later of (i) the
Effective Date, or (ii) the date on which the Bankruptcy Court
approval described in Paragraph Eight herein has become final and
non-appealable, (a) make a payment toward this obligation in the
amount of Thirty Five Thousand Dollars ($35,000) (hereinafter, the
"Initial Payment"), and (b) provide to the FCC an executed promissory
note in the principal amount of Sixty Five Thousand Dollars ($65,000),
in a form substantially the same as and on the terms and conditions
specified in Attachment B hereto (hereinafter, the "Promissory Note").
The voluntary contribution relates solely to WTCI's liability for
regulatory violations described in this Consent Decree and does not
represent compensation for pecuniary loss. The voluntary contribution
paid by WTCI pursuant to this Consent Decree is independent of, and
shall not constitute a credit or setoff, to any debt owed by WTCI to
the FCC, in connection with the Bankruptcy Case, including but not
limited to the FCC Claim as defined in the Master Settlement
Agreement.
8. Bankruptcy Court Authorization of Voluntary Contribution. WTCI shall,
no later than two (2) business days after the parties have executed
this Consent Decree, submit a request for requisite Bankruptcy Court
approval (a) to make and issue the Promissory Note; (b) to make the
Initial Payment described above; and (c) for debtor-in-possession
financing (a "DIP Loan") in the amount of Twenty Five Thousand Dollars
($25,000). WTCI further agrees to take all steps necessary in good
faith to secure and, if necessary, defend its right to make the
voluntary contribution to the FCC. The Parties hereby acknowledge
that, notwithstanding the need for such approval, the Bankruptcy Court
does not have jurisdiction over the FCC Investigation, enforcement
proceeding, or any other matter within the exclusive regulatory
jurisdiction of the FCC.
9. Compliance Plan. For purposes of settling the matters set forth
herein, WTCI agrees to implement a Compliance Plan related to WTCI's
future compliance with the Act, the Commission's Rules, and the
Commission's Orders. The Plan will include, at a minimum, the
following components:
Designation of Responsible Individual. Within ten (10) business days of
the Effective Date, WTCI shall designate an individual to serve as its
compliance officer, who shall be responsible for the Compliance Plan. In
discharging such duties, the compliance officer shall consult with and be
assisted by: (a) outside FCC regulatory counsel; and (b) during such time
as WTCI is operating as a Debtor-in-Possession, subject to the
jurisdiction of the Bankruptcy Court, the Chief Restructuring Officer
approved by the Court.
Education Program. Within 30 days of the Effective Date, WTCI shall
arrange for all officers and directors of WTCI to be fully briefed by
outside regulatory counsel regarding FCC requirements for license
ownership and transfers of control, including the FCC's rules and the
requirements of the Act regarding the need for prior approval of
assignments of FCC authorizations and the transfer of control of the
holders of such authorizations. With the assistance of outside regulatory
counsel, WTCI shall monitor and review any future changes to these
requirements. WTCI will also ensure that all future officers and
directors, as well as any future WTCI employees who will have
responsibility for transactions involving FCC licenses, are so briefed as
to the requirements and future developments in this regard.
10. Compliance Reports. WTCI shall file Compliance Reports with the
Commission 90 days after the Effective Date, twelve months after the
Effective Date, and annually for a period of two (2) years thereafter.
Each compliance report shall include a compliance certificate from an
officer, as an agent of WTCI, stating that the officer has personal
knowledge that WTCI has established operating procedures intended to
ensure compliance with this Consent Decree, together with an
accompanying statement explaining the basis for the officer's
compliance certification. The Compliance Report shall include a list
identifying any transaction during the previous twelve month period to
which WTCI was a party that involved the transfer of control or
assignment, within the meaning of Section 310(d) of the Communications
Act, of any FCC license, providing at a minimum the call sign(s) of
the authorization(s) and the names of the parties involved in the
transaction. The Compliance Report shall include a certification that,
as to each such listed transaction, a timely filing was made seeking
prior FCC consent to or notifying the FCC of such transaction, as
required by and in accordance with Section 310(d) of the
Communications Act and pertinent FCC regulations, including the file
number(s), call sign(s), submission date(s), and other information
sufficient to identify the regulatory filing. If, for any reason, WTCI
is unable to so certify, the Compliance Report shall include a full
explanation. All compliance reports shall be submitted to the Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C.
20554.
11. Payment. The foregoing Initial Payment must be made by check or
similar instrument, payable to the order of the Federal Communications
Commission, and shall be made without protest or recourse. The payment
must include the NAL/Account Number and FRN Number referenced in the
caption to the Adopting Order. Payment by check or money order may be
mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S.
Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza,
St. Louis, MO 63101. Payment by wire transfer may be made to ABA
Number 021030004, receiving bank TREAS/NYC, and account number
27000001. For payment by credit card, an FCC Form 159 (Remittance
Advice) must be submitted. When completing the FCC Form 159, enter the
NAL/Account number in block number 23A (call sign/other ID), and enter
the letters "FORF" in block number 24A (payment type code). WTCI will
also send electronic notification on the date said payment is made to
Ben.Bartolome@fcc.gov, and Gary.Oshinsky@fcc.gov
12. Independent Obligation. WTCI agrees that the terms and conditions of
this Consent Decree, and its obligations to comply therewith apply
without regard to, and are independent of, the outcome of the
Bankruptcy Case and any proposed transfer or other disposition of the
Licenses by WTCI.
13. Waivers. WTCI waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Order adopting this Consent Decree, provided the Commission
issues an Order adopting the Consent Decree without change, addition,
modification, or deletion; provided, however, that this provision
shall not preclude WTCI from seeking Bankruptcy Court approval in
accordance with Paragraph Eight of this Consent Decree. WTCI shall
retain the right to challenge Commission interpretation of the Consent
Decree or any terms contained herein, but only to the extent such
terms apply to the challenging Party. If any Party (or the United
States on behalf of the Commission) brings a judicial action to
enforce the terms of the Adopting Order, none of the Parties shall
contest the validity of the Consent Decree or the Adopting Order, and
WTCI shall waive any statutory right to a trial de novo. WTCI hereby
agrees to waive any claims it may otherwise have under the Equal
Access to Justice Act, 5 U.S.C. S: 504 and 47 C.F.R. S: 1.1501 et
seq., relating to the matters addressed in this Consent Decree.
14. Severability. The Parties agree that if any of the provisions of the
Adopting Order or the Consent Decree shall be invalid or
unenforceable, such invalidity or unenforceability, at the sole
discretion of the Commission, shall not invalidate or render
unenforceable the entire Adopting Order or Consent Decree, but rather
the entire Adopting Order or Consent Decree shall be construed as if
not containing the particular invalid or unenforceable provision or
provisions, and the rights and obligations of the Parties shall be
construed and enforced accordingly. To the extent that WTCI fails to
satisfy any condition, including but not limited to those contained in
Paragraphs 7-10, in the absence of Commission alteration of the
condition, it will be in breach of the provisions of the Consent
Decree, and may be subject to enforcement action, including, but not
limited to, revocation of the forbearance relief granted herein,
designation of the matter for license revocation hearing,
admonishment, or forfeiture. In the event that this Consent Decree in
its entirety is rendered invalid by any court of competent
jurisdiction, it shall become null and void and may not be used in any
manner in any legal proceeding.
15. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which WTCI does not expressly consent)
that provision will be superseded by such Commission rule or Order.
16. Successors and Assigns. WTCI agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
17. Final Settlement. The Parties agree and acknowledge that upon its
Effective Date, this Consent Decree shall constitute a final
settlement between the Parties with respect to the matters set forth
herein. The Parties further agree that this Consent Decree does not
constitute either adjudication on the merits or a factual or legal
finding or determination regarding any compliance or noncompliance
with the requirements of the Act or the Commission's Rules and Orders.
18. Modifications. This Consent Decree cannot be modified without the
written consent of the Parties.
19. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
20. Authorized Representative. Each of the Parties represents and warrants
to the others that it/he has full power and authority to enter into
this Consent Decree, subject to the respective approvals by the
Bankruptcy Court and the FCC, as specified herein.
21. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
Neil Gilmour, III
President and Chief Restructuring
Officer
________________________________ Wireless Telecommunications Inc.
Kris Anne Monteith ________________
Chief, Enforcement Bureau Date
________________ _________________________________
Date Thomas M. Balun
Vice President
Wireless Telecommunications Inc.
_________________
Date
Schedule A
Call Licensee Market or Frequencies Exp. Date
Sign Location
BRS/BTA
Wireless Block in
B227 Telecommunications, BTA 227; Keene NH the 03/28/2006*
Inc. 2150-2690
MHz Band
BRS/BTA
Wireless BTA 249; Block in
B249 Telecommunications, Lebanon-Claremont the 03/28/2006*
Inc. NH 2150-2690
MHz Band
BRS/BTA
Wireless BTA 266; Block in
B266 Telecommunications, Lynchburg VA the 03/28/2006*
Inc. 2150-2690
MHz Band
BRS/BTA
Wireless BTA 342; Block in
B342 Telecommunications, Parkersburg the 03/28/2006*
Inc. WV-Marietta OH 2150-2690
MHz Band
BRS/BTA
Wireless BTA 398; Block in
B398 Telecommunications, Salisbury MD the 03/28/2006*
Inc. 2150-2690
MHz Band
BRS/BTA
Wireless BTA 406; Santa Block in
B406 Telecommunications, Barbara-Santa the 03/28/2006*
Inc. Maria CA 2150-2690
MHz Band
BRS E1:
2596-2602
MHz
BRS E2:
Wireless 2608-2614
Telecommunications, MHz
WLK341 Inc., Rutland, VT 05/01/2011
Debtor-in-Possession BRS E3:
2620-2626
MHz
BRS E4:
2632-2638
MHz
BRS E1:
2596-2602
MHz
BRS E2:
Wireless 2608-2614
Telecommunications, MHz
WMH308 Inc., Cornwall, VT 05/01/2011
Debtor-in-Possession BRS E3:
2620-2626
MHz
BRS E4:
2632-2638
MHz
Wireless BRS 1:
WMH868 Telecommunications, Rutland, VT 2150-2156 05/01/2011
Inc., MHz
Debtor-in-Possession
Wireless BRS 2A:
WMI343 Telecommunications, Rutland, VT 2156-2160 05/01/2011
Inc., MHz
Debtor-in-Possession
BRS H1:
2650-2656
MHz
Wireless
Telecommunications, BRS H2:
WNTI856 Inc., Rutland, VT 2662-2668 05/01/2011
Debtor-in-Possession MHz
BRS H3:
2674-2680
MHz
Schedule B
PROMISSORY NOTE
$65,000 Wilmington, Delaware September __, 2008
FOR VALUE RECEIVED, the undersigned, Wireless Telecommunications,
Inc., ("WTCI"), Debtor in Possession in Case No. 5-02-03994 (JJT)
(Bankr. M.D. Pa) ("the "Bankruptcy Case"), hereby unconditionally
promises to pay to the order of the Federal Communications Commission,
an independent regulatory agency of the United States ("Payee"), the
principal sum of Sixty-Five Thousand Dollars ($65,000), together with
interest at the rate of eight percent (8%) per annum, compounded
quarterly, until paid.
Accrued interest on this Note shall be paid on a quarterly basis, with
the first interest payment to be made on December 1, 2008, and
thereafter, on the first day of each March, June, September and
December, until this Note is paid in full. If accrued interest is not
paid when due, it shall be added to the principal balance of this
Note, and shall accrue interest at the rate of 8% per annum until paid
in full. WTCI may defer the payment of interest at its option as
described above without creating a default under this Note.
This Note shall be paid in full on the earlier of (i) the second
anniversary date of the date of this Note, or (ii) a demand in writing
by the Payee for payment in full. Payee may demand that payment in
full be made at any time prior to the second anniversary of the date
of this Note if Payee reasonably determines that WTCI has sufficient
funds to pay the full amount due hereunder. "Sufficient funds" is
defined herein to mean cash, received by WTCI from whatever source, in
the amount sufficient to pay the full amount of the FCC secured debt
in accordance with the terms of the Master Settlement Agreement, and
the full amount due under this Note, including the principal and any
accrued but unpaid interest that is due under this Note. When WTCI
has sufficient funds as defined herein, upon written demand, it shall
make payment of this Note, including any accrued but unpaid interest
that is due under this Note, immediately after WTCI has paid in full
its secured debt to the FCC in accordance with the terms of the
Master Settlement Agreement and such payment shall be made prior to
the payment of the claim of any other creditor, secured or unsecured.
Payment shall be made in lawful money of the United States at the
offices of the Federal Communications Commission in Washington, D.C.,
or such other place as Payee shall have designated in writing for such
purpose. Payment in full shall be made promptly without demand on the
second anniversary date of this Note. If payment is made pursuant to a
demand in writing by the Payee prior to the second anniversary date of
this Note, WTCI shall make such payment within three (3) business days
of the receipt of said demand. This Note may be prepaid in whole or in
part at any time without penalty. All prepayments shall be applied
first to accrued interest, then the balance to principal.
The principal of and interest on this Note shall be paid without
setoff or counterclaim and free and clear of and exempt from, and
without deduction for or on account of, any present or future taxes,
levies, imposts, duties, deductions, withholdings or other charges of
whatsoever imposed.
If this Note is not paid in full on demand or upon the second
anniversary date of this Note, as aforesaid, WTCI agrees to pay costs
of collection and reasonable attorneys' fees. Further, the rate of
interest which WTCI promises to pay shall be increased by two percent
from the date of default until the date of payment in full.
The debt evidenced by this Note, including any accrued interest, shall
not be dischargeable in the Bankruptcy case, or any other bankruptcy
or other legal proceeding of WTCI and/or its successors (and/or
assigns). This Note may not be assigned without the prior written
consent of the Payee.
WTCI hereby waives trial by jury in any action or proceeding arising
out of or pertaining to this note. WTCI makes this waiver knowingly,
willing, and voluntarily. WTCI represents that no oral or written
statements have been made by any party to induce this waiver of trial
by jury or in any way to modify or nullify its stated effect. WTCI
further represents that it has been represented by independent
counsel, of its own choosing, in signing this note and in making this
waiver, and that it has had the opportunity to discuss this waiver
with such counsel.
WTCI hereby certifies and declares that all acts, conditions and
things required to be done and performed and to have happened
precedent to the execution and delivery of this Note and to constitute
this Note a valid obligation of WTCI in accordance with its terms have
been done, performed and have happened in accordance with all
applicable laws.
Other than demand for payment set forth herein, WCTI hereby waives
presentment, notice of dishonor, notice of protest and protest, and
all other notices and demands in connection with the delivery,
acceptance, performance or default of this Note.
Any demand for payment prior to the second anniversary date of this
Note shall be made in writing to WTCI at the last known address used
by WTCI as Debtor-in-Possession in the Bankruptcy Case. In addition, a
copy of said demand shall be given to WTCI by delivery to WTCI's
then-current bankruptcy counsel of record in the Bankruptcy Case. A
notice shall be deemed to be delivered and effective (a) upon personal
delivery, if delivered by hand or courier, (b) three (3) business days
after the date of deposit in the mail, postage prepaid, if mailed by
certified mail, or (c) the next business day if sent by facsimile
transmission (if receipt is electronically confirmed).
This Note and any disputes arising thereunder shall be construed and
enforced in accordance with, and governed by, the laws of the United
States, including but not limited to federal common law.
The Parties intend every provision of this Note to be severable. If
any provision of this Note is held to be illegal, invalid, or
unenforceable for any reason, the parties intend that a court enforce
the provision to the maximum extent permissible so as to effect the
intent of the parties (including the enforcement of the remaining
provisions). If necessary to effect the intent of the parties, the
parties will negotiate in good faith to amend this Note to replace the
unenforceable provision with an enforceable provision that reflects
the original intent of the parties.
IN WITNESS WHEREOF, the undersigned corporation has executed this
Promissory Note by its duly authorized officer.
Attest: WIRELESS TELECOMMUNICATIONS, INC.
______________________________ ______________________________
Neil Gilmour III
President and Chief Restructuring Officer
See 47 U.S.C. S: 310(d).
47 C.F.R. S: 1.948.
47 U.S.C. S: 154(i), 503(b).
47 C.F.R. S:S: 0.111, 0.311.
See 47 U.S.C. S: 310(d).
47 C.F.R. S: 1.948.
See 47 U.S.C. S: 310(d).
On June 9, 2000, the Court issued an order for relief, placing WTCI
into involuntary bankruptcy. See Order for Relief Under Chapter 7
(Case No. 1-00-02188; Bankr. M.D. Pa., June 9, 2000). On August 11,
2000, the FCC consented to the involuntary pro forma transfer of
control of WTCI to the Court-appointed trustee. See FCC File No.
BTCMD-20000607AAD, Public Notice, Wireless Telecommunications Bureau,
Transfers/Assignments/
Spectrum Leases - Actions, Report No. 2800 (August 16, 2000) at p.17.
On July 18, 2003, the Court authorized the conversion of the Chapter 7
case to a Chapter 11 case, and authorized the debtor-in-possession to
replace the court-appointed Chapter 7 trustee. WTCI filed a timely
application for transfer of control from the trustee to the
debtor-in-possession. See FCC File No. 20030804AA.
The Stock Pledge Agreement, dated September 8, 1995, allowed King to
vote the controlling stock of the Company in the event of a default on
a promissory note by Balun, subject to King's compliance with all
applicable FCC regulations.
In 2006, Balun entered into an agreement with King to redeem the
shares pledged to King under the Stock Pledge Agreement and also
purchased King's minority shares. Balun then resumed his position as
controlling principal and President of WTCI. See Stock Purchase
Agreement, dated September 8, 2006. Both transfers of control occurred
without Commission consent.
This consent decree is without prejudice to any issues raised by
Utopian Wireless Corporation in FCC File No. 0003130320 as to the
proposed assignment of the incumbent BRS licenses from Wireless
Telecommunications, Inc., Debtor-in-Possession to VTel Wireless, Inc.,
a subsidiary of Vermont Telephone Co., Inc.
* Applications for renewal filed on April 18, 2006, within thirty days
of expiration, accompanied by Request for Waiver of Section 1.949(a)
of the Commission's Rules. FCC File Nos. 0002576443 (B227), 0002576439
(B249), 0002576440 (B266), 0002576444 (B342), 0002576441 (B398), and
0002576442 (B406).
Federal Communications Commission DA 08-1914
2
Federal Communications Commission DA 08-1914