Federal Communications Commission FCC 97D-10
Before the
Federal Communications Commission 
Washington, D.C. 20554
In the Matters of ) PR DOCKET NO. 93-231
) 
Imposition of a Forfeiture Against )
)
CAPITOL RADIOTELEPONE, INC. ) 
d/b/a Capitol Paging ) 
1420 Kanawha Blvd. E ) 
Charleston, West Virginia 25301 )
)
Former Licensee of Station WNSX-646 in ) 
the Private Land Mobile Radio Services )
) 
and )
) 
Revocation of License of )
)
CAPITOL RADIOTELEPHONE, INC. ) 
d/b/a Capitol Paging ) 
1420 Kanawha Blvd. E ) 
Charleston, West Virginia 25301 )
)
License of Station WNDA-400 in the ) 
Private Land Mobile Radio Service )
) 
and )
) 
Revocation of License of )
)
CAPITOL RADIO TELEPHONE, INC. ) 
d/b/a Capitol Paging ) 
1420 Kanawha Blvd. E ) 
Charleston, West Virginia 25301 )
)
License of Station WNWW-636 in the ) 
Private Land Mobile Radio Services )
) 
and )
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____________ Federal Communications Commission FCC 97D-10
Revocation of License of )
CAPITOL RADIOTELEPHONE COMPANY, )
INC. )
1420 Kanawha Blvd. East )
Charleston, West Virginia 25301 )
Licensee of Station KWU-373 in the )
Public Mobile Radio Service )
and )
Revocation of License of )
CAPITOL RADIOTELEPHONE COMPANY,)
INC. )
P.O. Box 8305 )
South Charleston, West Virginia 25303 )
Licensee of Station KUS-223 in the . )
Public Mobile Radio Service )
and )
Revocation of License of )
CAPITOL RADIOTELEPHONE CO., INC. )
1420 Kanawha Blvd. East )
Charleston, West Virginia 25301 )
Licensee of Station KQD-614 in the )
Public Mobile Radio Service )
and )
Revocation of License of )
CAPITOL RADIOTELEPHONE COMPANY, )
INC. )
1420 Kanawha Blvd. East )
Charleston, West Virginia 25301 )
Licensee of Station KWU-204 in the )
Public Mobile Radio Service )
18704
Federal Communications Commission FCC 97D-10
Appearances
Kenneth E. Hardman. on behalf of Capitol Radiotelephone Company, Inc. (a/k/a 
Capitol Radiotelephone, Inc. or Capitol Radio Telephone, Inc.) d/b/a Capitol Paging; and Susan 
A. Aaron. John J. Schauble. Gary P. Schonman. and Daniel B. Phythyon. on behalf of Wireless 
Telecommunications Bureau.
INITIAL DECISION
OF 
ADMINISTRATIVE LAW JUDGE JOSEPH CHACHKIN
Issued: November 3, 1997 Released: November 5, 1997
Preliminary Statement
1. Capitol Radiotelephone Inc. d/b/a Capitol Paging (Capitol), by its counsel, applies for 
an award of fees and costs under the Equal Access to Justice Act, 5 U.S.C. §504 and Sections 
1.1501, et seq.. of the Commission's Rules. The Acting Chief, Wireless Telecommunications 
Bureau (Bureau), by his attorneys, opposes Capitol's application. * 2
FINDINGS OF FACT
2. Capitol provides mobile radio services in the area around Charleston, West Virginia, 
and paging services throughout West Virginia and parts of Ohio. For some 30 years, Capitol has 
provided common carrier paging service under Part 22 of the Commission's rules. In 1990, 
Capitol augmented its paging services by operating private carrier paging (PCP) facilities licensed 
under Part 90 of the Commission's Rules. 3 Capitol's PCP operations shared a channel on 152.48 
MHz with RAM Technologies, Inc. (RAM).
3. This proceeding arose out of RAM's repeated complaints of harmful interference by 
Capitol and information developed by Commission field personnel raising a substantial and
1 Pending before the Presiding judge are "First Application For Reimbursement Under the Equal Access To 
Justice Act" filed February 28, 1997 by Capitol; "Wireless Telecommunications Bureau's Opposition To Capitol 
Radiotelephone Inc.'s First Application For Reimbursement Under The Equal Access To Justice Act" filed August 
20, 1997 by the Bureau and "Reply To Opposition" filed September 4,1997 by Capitol. In this connection, Capitol 
consented to a riling date of August 20, 1997 for the Bureau's Opposition.
2 The matter was originally brought by the Private Radio Bureau, the predecessor to the Wireless 
Telecommunications Bureau.
3 Capitol's authorization for those PCP facilities was set aside when this proceeding was designated for hearing 
and its application for the PCP facilities was returned to pending status. Before the hearings began, Capitol 
dismissed its application for the PCP facilities. Since Capitol was liable for a forfeiture as its former licensee, these 
facilities remained in the caption of this proceeding.
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Federal Communications Commission FCC 97D-10
material question of whether Capitol willfully and repeatedly violated the Communications Act 
and the Commission's Rules in connection with its PCP operations. Capitol Paging. 8 FCC Red 
6300 (1993). After a hearing, the Presiding Judge concluded that Capitol did not willfully or 
repeatedly violate the Commission's Rules or make misrepresentations or lack candor before the 
Commission. Capitol Paging. 9 FCC Red 6370, 6377 If 55 (ALJ 1994). Rather, the ALJ found 
that the allegations against Capitol reflected an intent by RAM to avoid sharing the channel with 
Capitol. Id. at 6378-6379 H 63-65.
4. The Review Board affirmed the initial decision in most respects. However, the 
Review Board found that the ALJ had "glossed over" evidence concerning certain alleged 
violations and therefore made its own findings as to these matters. 11 FCC Red at 2338 <][8. The 
Review Board found that Capitol violated 47 C.F.R. § 90.403(e), which requires licensees to take 
reasonable precautions to avoid causing harmful interference. The Review Board also found that 
Capitol violated 47 C.FJA. § 90.405(a)(3), which requires licensees, when conducting tests for 
proper station and system maintenance, to keep testing to a minimum and to employ every 
measure to avoid harmful interference. The Review Board also found that Capitol violated 47 
C.FJR. § 90.425(b)(2), which requires licensees to transmit station identification information by 
Morse code at a rate of 20-25 words per minute. Id. at 2341 1 26.
5. However, the Review Board held that, while a close question, the record did not 
establish that the transmissions indicated a malicious intent to interfere with RAM's operation. 
Id. In the absence of such malicious intent, the Review Board found that the violations did not 
implicate Capitol's basic qualifications. Id. at 23411 27. The Review Board imposed a $4,000 
($1,000 per day for four days) forfeiture for violation of 47 C.F.R. § 90.403(e), and forfeitures 
of $1,000 ($250 per day for four days) each for violation of 47 C.F.R. § 90.405(a)(3) and 47 
C.F.R. § 90.425(b)(2). Id. at 2341-2342 ^ 28. As an additional matter, the Review Board deleted 
findings by the ALJ that RAM had engaged in a deliberate campaign to drive Capitol from the 
Channel. Id. at 2342 <I 32.
6. The Commission, in its Memorandum Opinion and Order, 11 FCC Red 8234 (1996) 4 
found that Capitol violated Sections 90.405(a)(3) and 90.425(b)(2) of the Commission's Rules, 
47 C.F.R. §§ 90.405(a)(3) and 90.425(b)(2), thereby justifying the Review Board's imposition of 
a $1,000 fine for each violation. The Commission, however, rejected the Review Board's finding 
of a violation of Section 90.403(e), 47 C.F.R. § 90.403(e), which requires reasonable precautions 
to avoid causing harmful interference. Id. at 8238-8240 (f 15-17). The Commission therefore 
deleted the $4,000 forfeiture imposed by the Review Board on that ground. Id. at 8239-8240 (1 
17).
7. The Commission found support in the record for a violation of Section 90.405(a)(3) 
of the Commission's Rules, pertaining to testing for station and system maintenance. The Rule
4 On March 25, 1996, Capitol filed an Application for Review, contending that the initial decision should be 
reinstated.
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Federal Communications Commission FCC 97D-10
requires licensees to keep testing "to a minimum" and to "employ every measure to avoid harmful 
interference." 47 C.F.R. §§ 90.405(a)(3). In upholding the Review Board's finding of a violation 
of Section 90.405(a)(3), the Commission reasoned that "the lack of a credible justification for the 
prolonged testing [by Capitol] and the suspicious circumstances disclosed during the inspection 
[by Commission filed personnel] amply supported]" the review Board's holding that the rule was 
violated. Commission Decision. 11 FCC Red at 8237-8238 (1 12, 13). The Commission further 
upheld the Review Board's finding of a violation of Section 90.425(b)(2) of the Commission's 
Rules, which pertains to the required Morse code transmission rate, noting that "Capitol's 
application for review does not specifically contest the finding that it [violated the rule]." Id. 
at 82 38 (I 13). The Commission additionally affirmed the Review Board's deletion of the 
adverse findings made by the ALJ concerning RAM. Id. at 8240 (f 20).
8. In April, 1997, the United States Court of Appeals, District of Columbia Circuit 
affirmed the order of the Commission "for substantially the reasons set forth in the Commission's 
Memorandum Opinion and Order, 11 FCC Red 8232 (1996)." Capitol Radiotelephone Company. 
Inc. v. Federal Communications Commission. Ill F.3d 962 (D.C. Cir. 1997). Capitol did not 
appeal the matter further and paid the $2,000 forfeiture issued against it.
CONCLUSIONS
9. Section 1.1501 of the Rules which implements the EAJA provides for the award of 
attorney's fees and other expenses to an eligible party "when it prevails over the Commission, 
unless the Commission's position in the proceeding was substantially justified or special 
circumstances make an award unjust." s The EAJA is applicable because the captioned 
proceeding sought to revoke licenses held by Capitol. In addition, Capitol meets the eligibility 
requirements denoted in Section 1.1504 of the Rules. 6
10. Parties may be considered prevailing parties for purposes of the EAJA "if they 
succeed on any significant issue in litigation which achieves some of the benefits sought in 
bringing suit." Henslev v. Eckhart. 461 U.S. 424, 433 (1983). See also Continental Web Press. 
Inc. v. NLRB. 767 F.2d 321 (7th Cir. 1985). This-test was reaffirmed in Texas State Teachers 
Association v. Garland Independent School District. 489 U.S. 782, _____, 109 S.Ct. 1486, 
1492-1493 (1989). In Garland, the Supreme Court held that "the touchstone of the prevailing
5 It should be noted that Section 1.1505(b) of the Rules permits a party to recover fees and expenses incurred 
in connection with an adversary adjudication where "the demand of the Commission is substantially in excess of 
the decision in the adversary adjudication and is unreasonable when compared with that decision under the facts and 
circumstances of the case." That rule, however, applies only to "adversary adjudications commenced on after March 
29,1996." See Section 1.1502. The instant matter was commenced on August 3,1993; consequently Section 1.1505 
does not apply here.
6 Capitol's February 28, 1997 "Motion For Confidential Treatment" of Exhibits B and C to its Application for 
Reimbursement which is unopposed, will be granted and the financial information contained in such exhibits will 
be withheld from public disclosure.
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Federal Communications Commission FCC 97D-10
party inquiry must be the alteration of the legal relationship of the parties in a manner which 
Congress sought to promote in the fee statue." Id. at ___, 109 S.Ct. at 1493.
11. Capitol has met the burden of demonstrating it is the prevailing party. The hearing 
sought revocation of Capitol's licenses on basic qualification grounds. Capitol prevailed on all 
issues with the exception of two rule violations. The Commission affirmed the Review Board's 
finding that Capitol violated the testing and Morse code provisions of the Commission's Rules. 
47 C.F.R. Section 90.405(a)(3) and 90.425(b)(2) and assessed a forfeiture of $2,000. The Bureau 
urges that since Capitol did not prevail on these issues, it may not recover fees and expenses 
incurred in defending them. However, Hensley makes clear that the mathematical approach 
suggested by the Bureau is not appropriate, where, as here, the litigation involves a common core 
of facts. Under the circumstances, an award should not be reduced because Capitol failed to 
prevail on every issue.
12. The Bureau also appears to make the further argument that Capitol's failure to prevail 
on the two code violation issues also precludes any recovery, notwithstanding that Capitol has 
prevailed on the significant issues in litigation. It is true, as urged by the Bureau, "that Capitol 
does not become a 'prevailing party' simply because the forfeiture of $2,000 was a substantially 
less severe remedy than was contemplated in the HDO." (Bureau Opposition, paragraph 15). 
However, Capitol's entitlement does not rest on that ground. Capitol is deemed to be a 
"prevailing party" because, consistent with Hensley. it has succeeded on all the significant issues 
in litigation and the Bureau has failed to achieve any of its objectives in bringing this proceeding.
13. However, while Capitol is the "prevailing party," it can not recover fees and expenses 
if the Commission was "substantially justified" in designating this matter for hearing. The 
Supreme Court has defined the phrase "substantially justified" in the context of the EAJA to 
mean "justified in substance or in the main -- that is, justified to a degree that could satisfy a 
reasonable person." Pierce v. Underwood. 487 U.S. 552, 565 (1988). The Supreme Court has 
further recognized that both a prevailing party as well as a losing party may be found to have 
taken a "substantially justified" position. Pierce. 487 U.S. at 569. The Pierce Court stated, "[A] 
position can be justified even though it is not correct, and we believe it can be substantially (i.e.. 
for the most part) justified if a reasonable person could think it correct, that is, if it has a 
reasonable basis in law and fact." Pierce. 487 U.S. at 566, n. 2. Thus, when the agency's action 
is found to be "substantially justified," the application for an award of fees pursuant to the 
EAJA must be denied. See, e.g.. Trahan v. Bradv. 907 F.2d 1 215 (D.C. Cir. 1990) (position 
taken by government concerning confidential tax information of Supplemental Security Income 
recipients was supported by a reasonable, albeit ultimately incorrect, interpretation of the law, 
requiring denial of the application for fees under the EAJA on "substantial justification" grounds). 
See also United States v. Modes. Inc. 18 CJ.T. 153 (CIT 1994).
14. The record in this proceeding demonstrates that there was a reasonable basis in law 
and fact for designating this matter for hearing and prosecuting the case to its conclusion. This 
proceeding arose out of RAM's repeated complaints of harmful interference by Capitol, 
accompanied by supporting affidavits, and information developed by Commission personnel
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Federal Communications Commission FCC 97D-10
during field inspections. Such evidence properly raised a substantial and material question of 
whether Capitol willfully and repeatedly violated the Communications Act and the Commission's 
Rules in connection with its PCP operations. Under the circumstances, there was ample reason 
for designating this matter for hearing. The fact that the Presiding Judge, in his initial decision, 
determined that the testimony of RAM's witnesses lacked credibility and credited the testimony 
of Capitol's witnesses does not undercut the justification for the hearing. On the contrary, as 
noted by the Bureau, the Presiding Judge's significant reliance on credibility findings in resolving 
the factual questions supports the view that there was "substantial justification" for the 
Commission's decision to designate the matter for hearing. 7 Similarly, the Commission's ultimate 
resolution, on the basis.of the record, of the issues in favor of Capitol, with the exception of two 
rules violations (Sections 90.405(a)(3) and 90.425(b)(2)), does not undermine or diminish the 
justification that existed in 1993 upon which the Commission relied in designating this case for 
hearing. 8 In sum, since the Commision's action in designating this matter for hearing and the 
Bureau's prosecution of the case against Capitol was "substantially justified" as that term is 
defined in Pierce. Capitol's request for an award of fees and costs pursuant to the EAJA is 
denied. 9
Accordingly, IT IS ORDERED, That the "Motion For Confidential Treatment" filed 
February 28, 1997 IS GRANTED.
7 In its Reply to Opposition, Capitol cites the Judge's finding that the allegations in the HDO relating to Capitol's 
"inhibitor" was a result of an investigatory error by the Commission's inspectors. Also, the allegations in the HDO 
concerning Capitol's computerized record was mistaken. See Capitol Paging. 9 FCC Red 6370, 6383 H 114 (ALJ 
1994). However, while the allegations were in error, there is no evidence that the Bureau acted in bad faith or for 
oppressive reasons in deciding to bring revocation proceedings against Capitol. Consequently, the existence of these 
errors does not preclude a determination that the Commission was "substantially justified" in designating this matter 
for hearing. See Modes, supra and cases cited therein.
8 Capitol improperly relies on the Presiding Judge's adverse findings concerning RAM as a basis for its 
application for fees under the EAJA. Since these findings were stricken from the administrative record, they do not 
provide a basis for ruling on Capitol's EAJA request.
9 In light of this determination, it is unnecessary to reach the question of whether the amount of reimbursement 
sought by Capitol ($49,636.28) is fully recoverable.
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Federal Communications Commission FCC 97D-10
IT IS FURTHER ORDERED, That unless an appeal from this Initial Decision is taken 
by a party, or it is reviewed by the Commission on its own motion in accordance with Section 
1.276 of the Rules, 10 the "First Application For Reimbursement Under The Equal Access To 
Justice Act" filed February 28, 1997 IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Joseph Chachkin 
Administrative Law Judge
10 In the event exceptions are not filed within 30 days after the release of this Initial Decision, and the 
Commission does not review the case on its own motion, this Initial Decision shall become effective 50 days after 
its public release pursuant to Section 1.276(d).
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