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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $// Order, Deferral of Licensing of MTA Commercial Broadband PCS, DA 95-806//$ $/ 1.43 Requests for stay/$ RECORD ONLY Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of Deferral of Licensing of MTA Commercial Broadband PCS ) DA 95-806 ) ) GN Docket No. 93-253 ) ET Docket No. 92-100 Order Adopted: April 12, 1995 Released: April 12, 1995 By the Chief, Wireless Telecommunications Bureau: 1. In an "Emergency Motion to Defer MTA PCS Licensing" filed on March 8, 1995, Communications One, Inc. (COI) asks the Commission to defer the licensing of the A and B blocks in the 2 GHz Personal Communications Service ("broadband PCS"). For the reasons stated below, we are denying COI's motion. 2. COI states that it is a woman-controlled communications company that intends to participate in the broadband PCS entrepreneurs' block auction. COI argues that if a stay of A and B block licensing is not granted, future entrepreneurs' block auction winners will suffer a competitive disadvantage because the companies that prevailed in the A and B block auctions will have an "open-ended headstart over small, disadvantaged companies." COI also notes that the U.S. Court of Appeals for the District of Columbia Circuit is considering a challenge to the minority and gender preferences established for the entrepreneurs' block auctions. To eliminate the alleged disadvantage to future entrepreneurs' block auction winners, COI proposes that the Commission defer licensing of the A and B block auction winners until after the C block auction is concluded so that all 30 MHz PCS licenses in any market area would be awarded simultaneously. 3. PCS Primeco, L.P. (Primeco) has filed comments in opposition to COI's motion. Primeco is a winning bidder in eleven markets in the A and B block auction and also intends to participate in partnerships or joint ventures controlled by designated entities that intend to bid in the C block auction. Primeco argues that COI's motion is an untimely request for reconsideration of the Commission's decision to stagger the licensing of PCS blocks. Primeco also contends that delaying the licensing of the A and B block auction winners will deprive the public of significant benefits in the form of new services and increased competition among wireless service providers. 4. We find that COI has failed to show good cause to delay the licensing of the A and B blocks. The argument raised by COI was expressly addressed in the Fourth Memorandum Opinion and Order in PP Docket No. 93-253, in which the Commission affirmed its decision to use a sequence of auctions to license broadband PCS. In that decision, the Commission expressly rejected the argument that the PCS licensing sequence should be changed to prevent A and B block winners from gaining an unfair headstart over other PCS licensees. The Commission noted that auctioning the A and B blocks first would in fact provide designated entities with important information about the value of PCS licenses that would assist them in attracting capital and formulating bid strategies. The Commission also expressly declined to delay the final licensing of the A and B block winners, noting that the overriding public interest in rapid introduction of service outweighed the risk of A and B block winners gaining a headstart advantage. 5. We find that COI's effort to raise these issues again in an "emergency motion" amounts to an untimely petition for reconsideration of the Commission's prior decision. We disagree with COI's suggestion that the possibility of a delay of the C block auction presents a new circumstance that the Commission did not previously consider. To the contrary, the Commission's decision to proceed with the first phase of PCS licensing before subsequent auctions were conducted or scheduled demonstrates that it considered prompt licensing of PCS to be paramount even though the timing of future auctions remained unknown. 6. Even if we were to treat COI's motion as a timely request for stay of A and B block licensing, we conclude that COI has failed to meet the standards necessary for grant of the requested relief. Among other factors, a party seeking a stay must show irreparable harm if the stay is not granted and that granting the stay will serve the public interest. COI has failed to show that it would be irreparably harmed by prompt granting of the A and B block licenses. We find that COI's contention that subsequent PCS licensees will be fatally hamstrung in their ability to compete against A and B block licensees is purely speculative. Even if A and B block licensees obtain some benefit from being licensed before other PCS providers, we believe that numerous competitive opportunities remain open to subsequent PCS entrants. Moreover, subsequent entrants may benefit from licensing of the A and B blocks because it will enable them to evaluate the business strategies and initial performance of the A and B block licensees in making their own strategic business decisions. Finally, even assuming arguendo that a significant interval between the issuance of the A and B block licenses and issuance of the C block licenses would reduce the value of the C block licenses, COI and other bidders are free to discount their bids in the C block auction accordingly. 7. We also conclude that COI has failed to show that staying licensing of the A and B auction winners is in the public interest. Congress has mandated that the Commission promote the development and rapid deployment of PCS for the benefit of the public with a minimum of administrative or judicial delay. Prompt licensing of the A and B blocks furthers this Congressional mandate by speeding the introduction of services that will compete with cellular and other established mobile services. We believe that the public interest in rapidly providing new competitive sources of wireless services outweighs any possible competitive harm that might result from the A and B block licensees being licensed ahead of auction winners in other PCS blocks. We emphasize that it remains our intent to proceed expeditiously with the C block auction and future PCS auctions to the extent legally permissible. 8. For these reasons, and pursuant to Section 1.43 of the Commission's Rules, 47 C.F.R. 1.43, COI's Emergency Motion to Defer MTA PCS Licensing is DENIED. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney, Chief Wireless Telecommunications Bureau