Email from G. Whitea

LETTER submitted by Northwest Missouri Cellular Limited Partnership

Email from G. Whiteaker to K. Harris et al 1.13.16

2016-02-12

This document pretains to ITC-T/C-20151008-00236 for Transfer of Control on a International Telecommunications filing.

IBFS_ITCTC2015100800236_1126295

Thursday, February 11, 2016 at 5:39:14 PM Eastern Standard Time Subject: Northwest Missouri Cellular Limited Partnership, Transfer of Control Applica;ons File Nos. 0006932939 & ITC-T/C-20151008-00236. Date: Wednesday, January 13, 2016 at 1:56:45 PM Eastern Standard Time From: Greg Whiteaker To: Kathy Harris, Sumita Mukhoty CC: Roger Noel, Denise.Coca@fcc.gov, David Krech, Susan OConnell, John Prendergast, Benjamin H. Dickens, Salvatore Taillefer, Richard D. Rubino, Nicholas Robb, Robin Tu^le BCC: Greg Whiteaker Dear: Kathy and Sumita, As the par;es have reported in various pleadings in connec;on with the above-referenced applica;ons, the Circuit Court of Holt County Missouri (“Circuit Court”) has appointed a receiver, Mr. Nicholas Robb (“Receiver”), to, among other things, assign the stock of Northwest Missouri Holdings, Inc. (“Holdings”) to Townes Missouri, Inc. (“Townes”) and to seek any required regulatory approvals for the same. Such assignment would, among other things, transfer control of the assets of Holding’s wholly-owned subsidiary, Oregon Farmers Mutual Telephone Company (“OFM”), including OFM’s wireline telephone opera;ons and any licenses or authoriza;ons held or controlled by OFM. The Receiver and Northwest Missouri Cellular Limited Partnership (“NWMC”) disagree regarding whether or not OFM holds a general partnership interest in NWMC. This issue has been raised in the Court of Chancery of the State of Delaware and the Circuit Court in Missouri. Pending resolu;on of the issue, however, the Receiver has argued before the Circuit Court that NWMC is preven;ng the Receiver from fulfilling his obliga;ons by preven;ng the Receiver from filing all necessary applica;ons to obtain all required FCC approvals. NWMC desires to cooperate with the Receiver to the extent possible while also preserving NWMC’s and its partners’ rights with respect to the disposi;on of the OFM-partnership interest. To this end, NWMC desires to explore a crea;ve licensing approach that may allow the Receiver to complete his work while s;ll protec;ng NWMC’s and its partners’ rights. From an FCC licensing perspec;ve, if OFM does not hold a general partnership interest in NWMC (which is the posi;on of NWMC), then no FCC consent for the transfer of control of NWMC is required for the Receiver to assign the stock of Holdings to Townes. The Receiver would be free to assign such stock upon obtaining any applicable consents unrelated to NWMC. If, however, OFM holds a general partnership interest in NWMC (which is the posi;on of the Receiver), then FCC consent would be required for the transfer of control of this interest to Townes through the assignment of the Holdings stock to Townes. Upon obtaining consent for the transfer of control of NWMC and of other applicable consents unrelated to NWMC, the Receiver would be able to assign the stock of Holdings to Townes. Were a court subsequently to determine that OFM does not hold a general partnership interest in NWMC, then the FCC consent for the transfer of control of NWMC would be superfluous. NWMC proposes to work with the Receiver – while fully reserving NWMC’s and its partners’ rights and maintaining their posi;on regarding the disposi;on of the OFM interest – to file applica;ons to allow the Receiver to seek FCC consent for the “transfer of control” of NWMC. Specifically, subject to the further qualifica;ons and limita;ons below, NWMC proposes the following approach. 1. NWMC would consent to the FCC returning applica;on File No. 0006932939 to pending status as requested by the Receiver. 2. NWMC would agree that the FCC defer considera;on of applica;on File No. ITC-T/C-20151008-00236 pending a judicial determina;on (or further agreement by the par;es) of the status of the partnership interest. 3. NWMC would work with the Receiver to ini;ate applica;ons (FCC Form 603 and ITC/TC) pursuant to which the Receiver could seek FCC consent to assign the stock of Holdings to Townes. Presumably, these applica;ons would be styled as applica;ons seeking FCC consent for the transfer of control of wireless Page 1 of 2

licenses and Interna;onal 214 authority held by NWMC, but in an exhibit to such applica;ons, NWMC would reserve all its rights and would con;nue to maintain its posi;on that OFM does not hold a general partnership interest in NWMC. 4. Upon receipt of FCC consent (assuming the FCC consents) for the “transfer of control” of NWMC (and any consents unrelated to NWMC), the Receiver could assign the stock of Holdings to Townes and would be able to wind up the receivership. 5. No no;ce of consumma;on would be filed regarding the “transfer of control” of NWMC un;l a court of competent jurisdic;on, in an ac;on including all partners of NWMC as par;es, finally determines the status of the OFM partnership interest. a. The FCC would agree to waive the 30-day window in which to file a no;ce of consumma;on. b. If the determina;on is that OFM holds a general partnership interest, then NWMC would agree to the filing of a no;ce of consumma;on of the transfer of control of NWMC. c. If the determina;on is that OFM does not hold a general partnership interest, then the Receiver would agree to NWMC’s no;fying the FCC that there was no consumma;on of a transfer of control of NWMC and that the FCC should accept applica;ons 0006932939 and ITC-TC-20151008-00236. The Receiver also would withdraw the various pe;;ons opposing these applica;ons. NWMC would only be willing to proceed in this fashion pursuant to an agreement with the Receiver sekng forth the approach outlined above. Under any approach, NWMC would fully reserve its rights and posi;on that OFM ceased to hold a general partnership interest in NWMC (unless and un;l finally adjudicated otherwise by a court of competent jurisdic;on in an ac;on including all partners of NWMC as par;es). NWMC believes that there are public interest benefits in proceeding with considera;on of the transfer of control applica;ons at the same ;me that the courts consider the partnership ques;on. Notably, there are other assets that are ;ed up in the receivership that are unrelated to NWMC. Proceeding in the manner outlined above would facilitate the transfer of the wireline telephone assets to Townes so that Townes can take over the wireline opera;ons of OFM. This approach also would allow the Receiver to complete and wind up his receivership without addi;onal delay. This approach would not unduly burden FCC resources. There are only two clearly defined possible outcomes, albeit one of which does not require FCC consent for the transfer of control of NWMC. NWMC, however, assumes (while fully-reserving all rights) that review of a transfer of control to Townes would be a straight-forward review. If the FCC consents to the transfer of control of NWMC and a court subsequently determines that OFM does not hold a general partnership interest in NWMC, then the consent would have been unnecessary, but the situa;on would be no different than when the FCC consents to a transac;on and the par;es do not consummate the transac;on for whatever reason. The FCC’s consent to a transac;on does not obligate the par;es to consummate. Would FCC staff be willing to consider the above approach or a modified approach to facilitate the Receiver comple;ng his work, while also preserving NWMC’s and its remaining partners’ rights? NWMC welcomes the opportunity to discuss this approach with staff and the Receiver. Greg Whiteaker Counsel for Northwest Missouri Cellular Limited Partnership Gregory W. Whiteaker Principal Herman & Whiteaker, LLC 6720-B Rockledge Drive, Suite 150, Bethesda, MD 20817 202.600.7274 | greg@hermanwhiteaker.com The information transmitted is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of this information, directly or indirectly, by persons or entities other than the intended recipient is prohibited. If you received this in error, please contact the sender and delete the material from all computers in which it resides. Page 2 of 2


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Document Modified: 0560-04-28 00:00:00
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