<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 8, 1997
MOBILEMEDIA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-26320 22-3253006
(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
65 Challenger Road, Ridgefield Park, New Jersey 07660
(Address of principal executive offices)
(Zip Code)
(201) 440-8400
(Registrant's telephone number, including area code)
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(Former name or former address, if changed since last report)
<PAGE>
INFORMATION TO BE INCLUDED IN THE REPORT
Item 1. Changes in Control of Registrant
Not Applicable.
Item 2. Acquisition or Disposition of Assets.
Not Applicable.
Item 3. Bankruptcy or Receivership
Item 4. Changes in Registrant's Certifying Accountant
Not Applicable.
Item 5. Other Events.
On April 8, 1997, the Federal Communications Commission
issued the release and order attached hereto as Exhibit
99.1, all of the terms of which are incorporated by
reference herein.
On April 8, 1997, MobileMedia Corporation issued the press
release attached hereto as Exhibit 99.2, all of the terms
of which are incorporated by reference herein.
Item 6. Resignations of Registrants Directors.
Not Applicable
Item 7. Financial Statements and Exhibits.
Not Applicable
Item 8. Change in Fiscal Year.
Not Applicable
<PAGE>
Pursuant to the requirements of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this
report to be signed on its behalf by the undersigned hereunto duly
authorized.
MOBILEMEDIA CORPORATION,
a Delaware corporation
Date: April 9, 1997 By: /s/ Santo J. Pittsman
---------------------
Santo J. Pittsman
Senior Vice President and
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
Exhibit Page
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Exhibit 99.1 -- FCC release and order dated April 8, 1997.
Exhibit 99.2 -- Press release dated April 8, 1997.
<PAGE>
EXHIBIT 99.1
[FCC LETTERHEAD]
Report WT 97 - WIRELESS TELECOMMUNICATIONS ACTION April 8, 1997
FCC ADOPTS HEARING DESIGNATION ORDER CONCERNING
MOBILEMEDIA CORPORATION
(WT Docket 97-115)
The Federal Communications Commission has adopted an order commencing an
administrative hearing to inquire into the qualification of MobileMedia
Corporation to remain a licensee. The Commission's action follows a voluntary
disclosure by the company and a subsequent FCC staff investigation, which
revealed that MobileMedia filed applications for paging licenses containing
false information. (See Public Notice, DA 97-78 (released January 13, 1997))
Consistent with established practices, MobileMedia may continue to operate
their licensed facilities and provide service to the public during the pendency
of the hearing.
The Hearing Designation Order adopted by the Commission on April 7,
1997, directs an Administrative Law Judge to take evidence and develop a full
factual record on issues concerning MobileMedia's filing of false forms and
applications. In recognition that the public interest will be served by
expediting the hearing proceeding to the fullest possible extent, the
Commission has directed the ALJ to issue a recommended decision within six
months of the release of the order. The Order directs the ALJ to make factual
findings concerning whether MobileMedia engaged in misrepresentations, lacked
candor, and willfully or repeatedly violated the Commission's Rules. The
Commission recognizes that MobileMedia voluntarily disclosed the false
filings and represents that it has since taken remedial action. Therefore,
the Hearing will provide MobileMedia the opportunity to provide mitigating
evidence of its ability to deal truthfully with the Commission and to abide
by its Rules in the future.
The Commission has directed the ALJ to make only a recommended decision
in the case, rather than an initial decision. Decisions as to the conclusions of
law and appropriate sanctions or dispositions are reserved to the Commission.
Action by the Commission April 7, 1997, by Order to Show Cause, Hearing
Designation Order, and Notice of Opportunity for Hearing for Forfeiture (FCC
97-124). Chairman Hundt, Commissioners Quello, Chong and Ness.
-FCC-
News Media contact: Audrey Spivack at (202) 418-0654
Wireless Telecommunications Bureau contacts: Rosalind Allen or Karen
Gulick at (202) 418-0600.
<PAGE>
FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
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BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In the Matter of )
)
MOBILEMEDIA CORPORATION, et al.(1) ) WT DOCKET NO. 97-115
)
Applicant for Authorizations and Licensee )
of Certain Stations in Various Services(2) )
ORDER TO SHOW CAUSE,
HEARING DESIGNATION ORDER,
AND
NOTICE OF OPPORTUNITY FOR HEARING FOR FORFEITURE
ADOPTED: APRIL 7, 1997 RELEASED: APRIL 8, 1997
By the Commission:
1. The Commission has before it: (a) the above-captioned licenses held,
and applications filed, by MobileMedia Corporation and its various subsidiary
and associated organizations (collectively "MobileMedia" or "Company") and (b)
the results of an investigation by the Wireless Telecommunications Bureau
("Bureau") into apparent FCC-related misconduct by MobileMedia. As discussed
below, the information before us raises substantial and material questions of
fact as to whether MobileMedia is basically qualified to be and remain a
Commission licensee. We therefore institute this hearing proceeding.
- ----------------
(1) MobileMedia Corporation holds licenses under the following names:
MobileMedia Paging; MobileComm; Wireless Holdings L.P.; MobileMedia
Communications Corporation of America; Mobile Communications Corporation of the
Southwest; Mobile Communications Corporation of the Northeast; Mobile
Communications of the Southeast; Mobile Communications Corporation of the West;
Mobile Communications Corporation of the Midwest; Mobile Communications
Corporation of Mississippi; Mobile Communications Corporation of Florida; Mobile
Communications Corporation of Tennessee; Mobile Communications Corporation of
Wisconsin; FWS Radio, Inc.; MobileComm Nationwide Operations; MobileComm of the
Mid South, MobileMedia, PCS Inc.; Dial Page, Southeast, Inc.; Radio Call Company
of Virginia, Inc.; MobileMedia DP Properties, Inc.; and Dial Page, Inc.
(2) See Appendix.
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FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
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BACKGROUND
2. MobileMedia is the second largest paging company in the United
States, serving approximately 4.4 million paging customers. The core of the
Company's business is derived from the paging services built by Metromedia
Telecommunications, Inc. ("Metromedia") in the 1980s. In 1987, SBC
Communications, Inc. ("SBC") acquired Metromedia and continued to operate
Metromedia's paging business under the "Metromedia" name. In October 1993,
MobileMedia, then a privately held corporation, acquired the Metromedia paging
business from SBC. Thereafter, in 1995, MobileMedia more than doubled the size
of its paging business through the acquisitions of Dial Page, Inc., a regional
paging company operating principally in the southeastern United States, and
MobileComm, a subsidiary of BellSouth. Presently, MobileMedia provides paging
services under the "MobileComm" name to subscribers in 32 states and the
District of Columbia. MobileMedia became a public company in 1995 and its stock
trades on the Nasdaq Stock Exchange. On January 30, 1997, MobileMedia filed a
voluntary petition for protection under Chapter 11 of the U.S. Bankruptcy Code
in the U.S. Bankruptcy Court for the District of Delaware(3).
3. MobileMedia represents that on September 4, 1996, outside counsel for
the Company informally disclosed to the Bureau that the Company would provide
the results of a complete internal investigation of suspected violations
involving the filing of paging applications with the Commission. Thereafter, on
October 15, 1996, MobileMedia submitted to the Bureau a report ("Report")
summarizing the results of its internal investigation(4). The Report indicated
that over a period of more than two years, MobileMedia had filed with the
Commission a significant number of FCC Forms 489(5) for paging stations that had
not in fact been constructed and as a consequence, were not providing service to
the public on the relevant deadlines. The Report also indicated that Mobile
Media had filed a substantial number of so-called "40-Mile Rule" applications(6)
that were predicated upon unconstructed facilities and were, therefore,
defective. MobileMedia identified several members of its senior staff who
participated in the false filings
- ------------------------------
(3) There are pending before the Commission applications on FCC Forms 490
for consent to the involuntary, PRO FORMA, assignment of various MobileMedia
Corporation licenses to a Debtor-in-possession. These applications are not among
those designated for hearing in the instant proceeding.
(4) The veracity and completeness of the report was later attested to by
Chairman of the Board and then acting Chief Executive Officer David A. Bayer.
Affidavit of David A. Bayer, December 13, 1996.
(5) Pursuant to Section 22.142 of the Commission's Rules, licenses are
required to notify the Commission, via the filing of an FCC Form 489, when
construction of an authorized paging station has been completed and service to
the public has commenced.
(6) The "40-Mile Rule" allowed incumbent paging licensees to file
applications for new transmission sites within 40 miles of a constructed and
operating facility authorized to the licensee on the same channel. SEE REVISION
OF PART 22 AND PART 90 OF THE COMMISSION'S RULES TO FACILITATE FUTURE
DEVELOPMENT OF PAGING SYSTEMS AND IMPLEMENTATION OF SECTION 309(J) OF THE
COMMUNICATIONS ACT -- COMPETITIVE BIDDING, WT Docket No. 96-18. First Report and
Order, 11 FCC Red 16570 (1996)
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FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
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and, according to the Report, the Company had "terminated the employment of the
responsible senior management personnel ...." As a consequence, according to the
Report, "none of the members of senior management involved in the derelictions
- -- either directly or as a matter of responsibility -- remain employed by the
Company." Report, pp. 25-26. MobileMedia conceded that some Company employees
had been aware of the ongoing illegal practices and that one such "employee"
questioned the propriety of the false filings with the Company's then Chief
Operating Officer. The Report did not disclose that the subject "employee"
was a corporate officer of MobileMedia. Additionally, the Report stated that
MobileMedia had:
further considered and, to date, has rejected making additional
personnel changes based on knowledge of the practices that occurred.
Given that the violations were ... to some degree endorsed by the senior
management, the Company has concluded that other lower-level employees
should not be disciplined simply for their awareness of the practice.
Report, p. 26.
4. Upon receipt of the Company's internal investigatory Report, the Bureau
commenced an investigation. The Bureau's investigation consisted of soliciting
from MobileMedia the production of certain documentary evidence pursuant to
Section 308(b) of the Communications Act of 1934, as amended, and deposing
certain present and former officers and directors of MobileMedia. Specifically,
between November 20, 1996 and December 5, 1996, the Bureau deposed the following
individuals: former Chief Executive Officer Gregory Rorke; Chief Technology
Officer Mark Witsaman; and Directors F. Warren Hellman, Mitchell R. Cohen, Tully
M. Friedman, John L. Bunce, David A. Bayer, and Clifford A. Bean.
5. The Bureau's investigation found that between the third quarter of
1993, when MobileMedia was formed, and the third quarter of 1996, MobileMedia
filed with the Commission at least 289 FCC Forms 489, wherein the Company
apparently misrepresented that otherwise unconstructed stations were
constructed, operating, and providing service to subscribers. (While some of the
stations were subsequently constructed and placed in service after the FCC Forms
489 were filed, most were never constructed and remain unbuilt.) The vast
majority of the false FCC Forms 489 -- approximately 223 -- were apparently
filed during the first quarter of 1996. MobileMedia also filed with the
Commission at least 94 "40-Mile Rule" applications for new paging facilities
that were predicated upon unbuilt facilities(7). The Bureau's investigation
also disclosed that between the third quarter of 1993 and the third quarter of
1996, MobileMedia filed
- ----------------------------
(7) By PUBLIC NOTICE, DA 97-78 (released January 13, 1997), the Bureau
announced (a) the automatic termination of authorizations held by MobileMedia
for stations which were not constructed and providing service to subscribers by
the applicable deadline; and (b) the dismissal as defective of "40-Mile Rule"
applications filed by MobileMedia which were predicated on unconstructed
facilities. The PUBLIC NOTICE, however, granted interim operating authority to
MobileMedia for those stations which were subsequently constructed and are
presently serving the public.
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FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
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with the Commission nearly 200 FCC Forms 489 more than 15 days after service
had been initiated, contrary to Section 22.142 of the Commission's Rules.
DISCUSSION
6. Section 301 of the Communications Act of 1934, as amended, states
that no person "shall use or operate any apparatus for the transmission of
energy or communications or signals by radio ... except under and in
accordance with this Act and with a license in that behalf granted under the
provisions of this Act." Similarly, Section 22.3 of the Commission's Rules
specifies that paging facilities must be used and operated pursuant to a
valid authorization. SEE ALSO 47 C.F.R. ' 22.143. Pursuant to Section 22.142
of the Commission's Rules, each authorization for a new paging station
contains a date by which construction of the station must be completed and
service to the public initiated. Section 22.142 of the Commission's Rules
requires licensees to notify the Commission, via the filing of an FCC Form
489, when construction of an authorized paging station has been completed and
service to the public has begun. Such notification must be filed no later
than 15 days after service has commenced. Additionally, Section 22.144 of the
Commission's Rules provides for the automatic termination of an authorization
if the licensee has failed to complete construction of the new paging station
and commenced service by the deadline.
7. It is well settled that the ability of the Commission to rely on the
representations of applicants and licensees is crucial to the functioning of our
regulatory process. RICHARDSON BROADCAST Group, 7 FCC Red 1583 (1992)
(subsequent history omitted). Indeed, the Commission's demand for absolute
candor is itself all but absolute. EMISION DE RADIO BALMASEDA, INC., 7 FCC Red
3852, 3853 (Rev. Bd. 1992), REV. DENIED, 8 FCC Red 4335 (1993). The SINE QUA NON
for a finding of disqualifying misrepresentation or lack of candor is an intent
to deceive the Commission. FOX RIVER BROADCASTING, INC., 93 FCC 2d 127, 129
(1983). Moreover, Section 1.17 of the Commission's Rules requires truthful
written statements in all filings with the Commission.
8. The information before us suggests that MobileMedia repeatedly
engaged in the practice of misrepresenting the status of construction of its
paging stations in FCC Forms 489 in a deliberate scheme to prevent valuable
paging authorizations from automatically terminating. In this regard, we note
that MobileMedia initially acquired its new paging authorizations for a nominal
filing fee through the Commission's former licensing process. Had MobileMedia
properly relinquished its unconstructed paging authorizations rather than filing
false FCC Forms 489 to cover them, MobileMedia recognized that it may have been
compelled to bid at auction in the event it desired to reacquire the forfeited
authorizations(8). Additionally, the evidence before
- -------------------------------
(8) The Commission's intentions to modify its licensing procedures were
widely known. SEE GENERALLY, IMPLEMENTATION OF SECTION 309()F) OF THE
COMMUNICATIONS ACT -- COMPETITIVE BIDDING, PP Docket No. 93-243. Second Report
and Order, 9 FCC Red 2348 (1994); REVISION OF PART 22 AND PART 90 OF THE
COMMISSION'S RULES
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FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
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us suggests that MobileMedia repeatedly filed false "40-Mile Rule" applications
with the Commission in a calculated attempt to obtain "40-Mile Rule"
authorizations to which the Company was not otherwise lawfully entitled. Equally
significant, it appears that several individuals at the highest levels of the
Company-including corporate officers and members of MobileMedia's Board of
Directors - either orchestrated, affirmatively approved, tacitly condoned or
were at least cognizant of the ongoing practices.
9. Evidence that corporate officers and directors of MobileMedia may
have actively participated in, approved, or known about a protracted and large
scale scheme to deceive the Commission through the filing of false FCC Forms 489
and "40-Mile Rule" applications raises a substantial and material question of
fact as to MobileMedia's qualifications to be a Commission licensee.(9) The
evidence before us also suggests possible violations of our technical rules.
Thus, the apparent construction and operation of paging stations after the
automatic termination of the respective authorizations raise substantial and
material questions of fact as to whether MobileMedia willfully or repeatedly
violated Sections 22.3 and 22.143 of the Commission's Rules. Additionally,
MobileMedia's apparent failure to timely file FCC Forms 489 raises substantial
and material questions of fact as to whether the Company willfully or repeatedly
violated Section 22.142 of the Commission's Rules. Such practices collectively
call into doubt MobileMedia's basic qualifications to be and remain a Commission
licensee. Accordingly, appropriate issues will be specified below.
10. Finally, the Bureau's investigation reveals the existence of a
substantial and material question of fact concerning whether MobileMedia was
entirely forthcoming in its October 15, 1996 Report concerning the Company's
claims that it had "terminated the employment of the responsible senior
management personnel" and that "none of the members of senior management
involved in the derelictions - either directly or as a matter of responsibility
- - remain employed
- ---------------------
TO FACILITATE FUTURE DEVELOPMENT OF PAGING SYSTEMS AND IMPLEMENTATION OF SECTION
309(J) OF THE COMMUNICATIONS ACT - COMPETITIVE BIDDING, WT Docket No. 96-18,
Notice of Proposed Rulemaking, 11 FCC Red 3108 (1996); REVISION OF PART 22 AND
PART 90 OF THE COMMISSION'S RULES TO FACILITATE FUTURE DEVELOPMENT OF PAGING
SYSTEMS AND IMPLEMENTATION OF SECTION 309(J) OF THE COMMUNICATIONS ACT -
COMPETITIVE BIDDING, WT Docket No. 96-18. Second Report and Order and Further
Notice of Proposed Rulemaking. FCC 97-59 (released February 24, 1997).
(9) In a further report to the Bureau on October 31, 1996, MobileMedia's counsel
represented:
The Company acknowledges that a primary focus and concern for the
Commission in evaluating the Company's conduct here is the gravity of
the offenses for which the Company is accepting responsibility. The
practice of filling inaccurate Forms 489 was recurrent rather than
isolated, and, during one three-month period of time, routine. The
number of such filings were large. The filings were not made
inadvertently but rather with knowledge that inaccuracies existed. The
practices of filing inaccurate Forms 489 was conceived and executed by a
high-ranking officer of the Company, and, at least as to those filings
which occurred in the first quarter of 1996, appear to have been
approved of at the highest levels of Company management. The Company is
well aware that such knowing conduct constitutes deliberate
misrepresentation, which is traditionally the most serious form of
misconduct for which licensees can be sanctioned.
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FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
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by the Company." These representations do not appear to be accurate. The
Bureau's investigation found that at least one corporate officer who was fully
aware of the deceitful activities and apparently involved in the derelictions
"as a matter of responsibility" still holds his high-ranking position with
MobileMedia. In its Report MobileMedia failed to identify this individual as a
corporate officer, implying that he was one of the "lower-level employees [who]
should not be disciplined simply for their awareness of the practice. On January
31, 1997, in response to the Bureau's questions about this officer and the
Company's personnel actions, MobileMedia provided information about the
reasoning behind the Company's retention of the corporate officer. This
submission does not, however, explain the Report's failure to fully disclose the
role of this officer in the admitted wrongdoing. Accordingly, a substantial and
material question of fact concerning MobileMedia's candor exists with respect to
the Company's representations in its Report. Accordingly, an appropriate issue
will be specified below.
11. We recognize that MobileMedia voluntarily brought this matter to
the Commission's attention and that the Company may have since taken remedial
actions relating to most of the individuals directly involved and the
Company's future compliance with Commission rules. Therefore, we have
specified an appropriate issue to take and consider any relevant mitigating
evidence that MobileMedia may proffer. The Bureau, as a party, will also be
afforded the opportunity under this issue to offer evidence refuting any
claim that MobileMedia may make concerning MobileMedia's ability to comply in
the future with the Commission's rules and policies and the Communications
Act of 1934, as amended. Such evidence may include, but is not limited to,
the veracity of representations made by the Company and its principals in its
October 15, 1996, Report and during the course of the Bureau's investigation.
12. We also recognize that MobileMedia has admitted to many of the
facts at issue here. Nevertheless, we conclude that a hearing is compelled
for several reasons. First, this case appears to be unprecedented at the
Commission in term of the sheer number of false filings involved. For
apparent misrepresentations of such magnitude, we cannot, based on the
information before us, rule out application denial and license revocation as
potential sanctions. Application denial and license revocation cannot proceed
as a matter of law without a hearing on all the relevant facts. 47 U.S.C.
309(e), 312(a), 312(c). MobileMedia may, of course, enter into a stipulation
as to relevant facts or waive its right to a hearing, 47 C.F.R. 1.19. 1.92.
Second, the Commission does not have all the relevant facts before it. Thus,
despite the Bureau's investigation and certain admonition by MobileMedia,
including that certain former members of MobileMedia's senior management were
actively involved in the misbehavior, it remains unclear which others
offices, directors, and senior managers knew about or condoned the wide-scale
pattern of misbehavior. In this regard, evidence gathered by the Bureau
indicates that at least one officer still employed by the Company was aware of
the ongoing practices. It also remains unclear whether and to what extent the
Company had procedures or policies in place to deter such false filings or
stop their reoccurrence. Third, as discussed above, the information before us
suggests that MobileMedia may have lacked candor in its Report to the Bureau.
This issue of fact must also be resolved by hearing.
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FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
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13. We also are cognizant of the Company's financial situation and the
potential impact that a protracted hearing proceeding might have on the vast
number of subscribers who rely on MobileMedia for their paging services as well
as the Company's creditors and investors. Accordingly, we find, based on the
records, that the due and timely execution of the Commission's functions
imperatively and unavoidably requires and the public interest would be served by
expediting this hearing proceeding to the fullest possible extent. In this
regard, pursuant to Section 409(a) of the Communications Act and Section 1.274
of the Commission's Rules we direct the presiding Administrative Law Judge to
certify the record to the Commission and to make every effort to adhere to the
expedited procedural schedule and guidelines set forth below. Furthermore, the
presiding Administrative Law Judge is directed to make only a recommended
decision, rather than an initial decision as is usually the case.(10) The
presiding Administrative Law Judge shall limit his recommended decision to the
factual matters at issue, including relevant demeanor and credibility findings.
The decisions as to the conclusions of law (e.g., did MobileMedia's false
statement constitute misrepresentations) and appropriate sanctions or
disposition are left to the Commission. The presiding Administrative Law Judge
is directed to endeavor to issue his recommended decision within six months of
the release of this order.
14. Accordingly, IT IS ORDERED that, pursuant to Section 309(e), 312(a),
and 312(c) of the Communications Act of 1934, as amended, the pending
applications of MobileMedia are designated for hearing, and MobileMedia is
directed to show cause why its licenses should not be revoked, in a consolidated
proceeding, upon the following issues:
(a) to determine the facts and circumstances surrounding
MobileMedia's filing of FCC Forms 489 and "40-Mile" applications with
the Commission containing false information (including, but not limited
to, the identity of all officers, directors and senior management
personnel who participated in, orchestrated, approved, condoned, or had
knowledge of the filings; and the nature and extent of their
involvement, including their intent) and whether MobileMedia knowingly
made false statements, engaged in misrepresentations, lacked candor, or
willfully or repeatedly violated Section 1.17 of the Commission's Rules
with regard to the filing of FCC Forms 489 and the filing of "40-Mile"
applications;
(b) to determine the facts and circumstances surrounding
MobileMedia's submission of its October 15, 1996, Report to the Bureau
(including, but not limited to, the identity of all persons who
participated in the preparation of the Report and the nature and extent
of their participation, including their intent) and whether MobileMedia
knowingly made false statements, engaged in misrepresentations, lacked
candor, or willfully or repeatedly violated Section 1.17 of the
Commission's Rules with regard to the submission of the October 15, 1996
Report to the Bureau;
- -----------------------------------
(10) A recommended decision unlike an initial decision cannot ripen into a final
decision. Rather, a final agency decision in this proceeding can only be made by
Commission.
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FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
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(c) to determine the facts and circumstances surrounding MobileMedia's
construction and operation of paging facilities without valid
authorizations (including, but not limited to, the identity of all
offices, directors and senior management personnel who participated in,
orchestrated, approved, condone, or had knowledge of the construction
and operation; and the nature and extent of their involvement including
their intent) and whether MobileMedia willfully or repeatedly violated
Sections 22.3 and 22.143 of the Commission's Rules by constructing and
operating paging facilities without valid authorizations.
(d) to determine the facts and circumstances surrounding MobileMedia's
filings of FCC Forms 489 more than 15 days after the commencement of
service (including, but not limited to, the identity of all offices,
directors and senior management personnel who participated in,
orchestrated, approved, condone, or had knowledge of the filings; and
the nature and extent of their participation including their intent) and
whether MobileMedia willfully or repeatedly violated Section 22.142 of
the Commission's Rules by filing FCC Forms 489 more than 15 days after
the commencement of service;
(e) to determine whether there exists any mitigating evidence indicative
of MobileMedia's future ability to deal truthfully with the Commission
and to comply with all pertinent provisions of the Commission's Rules
and the Communications Act of 1934, as amended;
(f) to determine, in light of the evidence adduced pursuant to issues
(a) - (e), whether MobileMedia is qualified to be and remain a
Commission licensee;
(g) to determine, in light of the evidence adduced pursuant to issues
(a) - (e), whether the pending applications filed by MobileMedia should
be granted; and
(h) to determine, in light of the evidence adduced pursuant to issues
(a) - (e), whether the licenses held by MobileMedia should be revoked.
15. IT IS FURTHER ORDERED that, pursuant to Sections 4(j) and 409 of the
Communications Act of 1934, as amended, and Part I, Subpart B, of the
Commission's Rules:
(a) the presiding Administrative Law Judge shall take evidence and
develop a full, fair, and complete evidentiary record on issues (a) -
(e) above and make every effort to conclude the case, including
certifying the record to the Commission within six months of the release
of this order.
(b) notwithstanding Section 0.341 and 1.291 of the Commission's Rules,
the presiding Administrative Law Judge shall promptly certify to the
Commission for resolution all motions and petitions filed pursuant to
Sections 1.223 (petitions to
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FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
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intervene), 1.229 (motions to enlarge, change, or delete
issues), and 1.251 (motions for summary decision) of the Commission's
Rules;
(c) notwithstanding Section 1.263(a) and 1.264 of the Commission's
Rules, each party to the proceeding may file proposed findings of fact
within 30 days after the record is closed;
(d) pursuant to Section 1.274 (a) of the Commission's Rules, the
presiding Administrative Law Judge shall make every effort within 60
days of receipt of the parties' proposed findings of fact to certify the
evidentiary record in this proceeding to the Commission for final
decision;
(e) notwithstanding Section 1.267(b) of the Commission's Rules, the
presiding Administrative Law Judge shall, at the time of certification
of the evidentiary record, file with the Secretary and send to the
parties a recommended decision that contains findings of fact, including
any appropriate demeanor and credibility findings, with respect to
issues (a) through (e) above, but does not contain conclusions of law or
a recommended sanction or disposition;(11) and
(f) within 30 days of certification of the evidentiary record and the
filing of presiding Administrative Law Judge's recommended decision, the
parties may file with the Commission exceptions to the recommended
decision along with the parties' proposed conclusions, briefs, or
memoranda of law.
16. IT IS FURTHER ORDERED that irrespective of the Commission's
resolution of the issues (f) through (h) in paragraph 13 above the Commission
shall also determine, pursuant to Section 503(b) of the Communications Act of
1934, as amended, whether an Order of Forfeiture shall be issued against
MobileMedia in an amount not to exceed $100,000 for each violation or each day
of a continuing violation, except that the amount assessed for any continuing
violation shall not exceed a total of $1,000,000 for any single act or failure
to act, for having willfully or repeatedly violated the Communications Act of
1934, as amended, or the Commission's Rules.
17. IT IS FURTHER ORDERED that, in connection with the possible
forfeiture liability noted above, this document constitutes notice, pursuant to
Section 503(b)(3) of the Communications Act of 1934, as amended.
18. IT IS FURTHER ORDERED that, pursuant to Section 1.91(c) and 1.221(c)
of the Commission's Rules, to avail itself of the opportunity to be heard Mobile
Media, by its attorneys, shall file with the Commission within twenty (20) days
of the date of this order a written
- ---------------------
(11) Notwithstanding Section 1.374(a) of the Commission' Rules, the presiding
Administrative Law Judge shall release his recommended decision at the time he
certifies the record to the Commission.
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FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
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appearance stating that it will appear at the hearing and present evidence on
the matters specified herein.
19. IT IS FURTHER ORDERED that pursuant to Section 309(e) and 312(d)
of the Communications Action of 1934, as amended, and Section 1.254 of the
Commission's Rules, the burden of proceeding with the introduction of evidence
and the burden of proof with respect to issues (a), (b), (c), (d), (f) and (h)
above shall be on the Wireless Telecommunications Bureau; and the burden of
proceeding with the introduction of evidence and the burden of proof with
respect to issues (e) and (g) above shall be on MobileMedia.
20. IT IS FURTHER ORDERED that the Acting Secretary of the Commission
shall send a copy of this Order via Certified Mail - Return Receipt Requested to
MobileMedia's counsel: Eric L. Bernthal, Esq., Latham & Watkins, 1001
Pennsylvania Avenue, N.W., Suite 1300, Washington, D.C. 20004; and Robert L.
Pettic, Esq., Wiley, Rein & Fielding, 1776 K Street, N.W., Washington, D.C.
20006.
21. IT IS FURTHER ORDERED that the Acting Secretary of the Commission
shall cause to have this Order or a summary thereof published in the Federal
Register.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
- 10 -
<PAGE>
FEDERAL COMMUNICATIONS COMMISSION FCC 97-124
- -------------------------------------------------------------------------------
APPENDIX
All licenses, construction authorizations, and pending applications (except
the pending involuntary pro forma applications for consent to the assignment
of MobileMedia's authorizations to a Debtor-in-Possession) held or filed by
MobileMedia for all services, including those listed below, are the subject
of this Order to Show Cause, Hearing Designation Order, and Notice of
Opportunity for Hearing for Forfeiture.
<TABLE>
<CAPTION>
COMMON CARRIER PAGING SITE-BY-SITE LICENSES
CALL SIGN FILE NUMBER STATUS EXPIRATION LICENSEE
<S> <C> <C> <C> <C>
KNKJ1910 2766389 LI 4/1/99 DIAL PAGE SOUTHEAST INC.
KNKC865 3446196 LI 4/1/99 DIAL PAGE, INC.
KPE265 2741889 LI 4/1/99 DIAL PAGE, INC.
KPE266 2601989 LI 4/1/99 DIAL PAGE, INC.
KUO600 2603590 LI 4/1/99 FWS RADIO, INC.
KNK1465 3089389 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
KDS460 2692489 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
KNKI1578 3089489 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
KNKJ1474 2938389 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
KNKJ478 2493296 LI 7/1/98 MOBILE COMMUNICATIONS CORP OF AMER
KNKK976 2873089 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
KNKL246 2045490 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
KNKL318 2046090 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
KNKL357 2068990 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
KNKL787 2812990 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
KNKM527 2654891 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
WRV287 2752589 LI 4/1/99 MOBILE COMMUNICATIONS CORP OF AMER
KNKM986 2820192 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKM856 2535396 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNK0281 2513294 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNK0248 2897896 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKG815 2152092 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKG831 2664094 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKG865 2530096 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKG874 2114394 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKK964 2556593 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKL247 2249092 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKL321 2045590 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKM853 2907995 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKM898 2152292 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC
KNKO240 2059093 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKO251 2206193 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC.
KNKO253 2315294 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC
KNKO255 2652892 LI 4/1/99 MOBILECOMM NATIONWIDE OPERATIONS, INC
</TABLE>
A - 1
<PAGE>
EXHIBIT 99.2
[MOBILEMEDIA LETTERHEAD]
FOR IMMEDIATE RELEASE
RIDGEFIELD PARK, NJ, APRIL 8, 1997 - MOBILEMEDIA (NASDAQ: MBLMQ) ISSUED THE
FOLLOWING STATEMENT IN RESPONSE TO AN APRIL 7, 1997 FEDERAL COMMUNICATIONS
COMMISSION (FCC) ORDER INITIATING AN ADMINISTRATIVE HEARING REGARDING
MISREPRESENTATIONS MADE TO THE FCC BY THE COMPANY IN APPLICATIONS FOR CERTAIN
PAGING LICENSES:
[LOGO]
MOBILEMEDIA
"The FCC's hearing designation constitutes a further step toward resolution of
certain issues regarding the Company's qualification as an FCC licensee and
relates to all of the Company's licenses.
The FCC's order initiates a fact-finding and evaluative hearing process to
gather information with which to make a decision, but is not a final
disposition of the Company's regulatory issues. The Company cannot be certain
of the outcome of the process initiated by the FCC's action. An adverse
outcome of this proceeding could result in the loss of the Company's licenses
or substantial monetary fines, or both. Any such outcome would have a
material adverse effect on the Company's financial condition and results of
operations.
MobileMedia will continue to operate on a normal basis and provide
uninterrupted service to customers during the proceeding.
As the FCC stated in its order, MobileMedia promptly informed the FCC when it
discovered that it had made misrepresentations to the FCC regarding
applications for certain paging licenses. In its press release announcing the
order, the FCC states that it 'recognizes that MobileMedia voluntarily
disclosed the false filings and represents that it has since taken remedial
action.' As previously reported, the Company discovered misrepresentations
and other violations which occurred during the licensing procedures for
approximately 6% to 7% of its approximately 8,000 local transmission one-way
paging stations. The Company's outside counsel conducted an investigation and
provided the FCC with comprehensive reports regarding these matters in
October and November 1996.
MobileMedia takes very seriously the concerns raised by the FCC in its
hearing designation order suggesting that certain representations in
MobileMedia's disclosure to the FCC do not appear to be accurate. The Company
looks forward to presenting all evidence before the Administrative Law Judge
and resolving this issue completely. The Company believes that its disclosure
was complete and forthcoming and that it will be able to satisfy the FCC's
requests for information."
# # #
