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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $// Order, Advanced MobileComm & Digital Spread Spectrum, DA 95-1412//$ $/ 309(d)(2) Action Upon Applications/$ RECORD ONLY DA 95-1412 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Application of Wireless Co., L.P. ) for a License to Provide ) File No. 00005-CW-L-95 Broadband PCS Service on Block A ) Call Sign KLNF 208 in the San Francisco Major Trading ) Area (M004) ) ) Application of Pacific Telesis Mobile ) Services for a License to Provide ) File No. 00006-CW-L-95 Broadband PCS Service on Block B ) Call Sign KLNF 209 in the San Francisco Major Trading ) Area (M005) ) ) Application of AT&T Wireless PCS ) for a License to Provide ) File No. 00013-CW-L-95 Broadband PCS Service on Block A ) Call Sign KLNF 216 in the Boston Major Trading ) Area (M008) ) ) Application of WirelessCo, L.P. ) for a License to Provide ) File No. 00014-CW-L-95 Broadband PCS Service on Block B ) Call Sign KLNF 217 in the Boston Major Trading ) Area (M008) ) ORDER Adopted: June 23, 1995 Released: June 23, 1995 By the Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. By this Order, we resolve Petitions to Deny filed on May 12, 1995 by Advanced MobileComm Technologies (AMT) and Digital Spread Spectrum Technologies (DSST) (jointly "Petitioners") against broadband personal communications service (PCS) applications filed for the A and B block licenses in the San Francisco and Boston Major Trading Areas (MTAs). The applications were filed by WirelessCo (San Francisco A block and Boston B block), PacTel (San Francisco B block), and AT&T Wireless (Boston A block), the high bidders for these markets in the A and B block broadband PCS auctions. For the reasons discussed below, we deny AMT and DSST's petitions and grant the applications filed by WirelessCo, PacTel, and AT&T Wireless. II. CONTENTIONS OF THE PARTIES 2. On May 12, 1995, AMT and DSST jointly petitioned the Commission to dismiss, deny, or defer applications for the San Francisco and Boston MTA licenses. AMT and DSST allege that this action is needed until pending litigation addressing their pioneer's preference requests for these markets is resolved. This litigation stems from the Commission's tentative denial of Petitioners' pioneer's preference requests in 1992 and subsequent affirmation of its decision in 1994. Petitioners' appeal of the Pioneer's Preference Reconsideration Order has been consolidated with a number of other cases and is pending before the United States Court of Appeals for the District of Columbia Circuit. 3. In their petitions to deny, AMT and DSST argue that the pending appeal of the Pioneer's Preference Reconsideration Order possibly could result in awards to them of the A block licenses in the Boston and San Francisco MTAs. While AMT and DSST recognize that the Commission previously has conditioned licenses on the outcome of pending litigation, they contend that this remedy would be inadequate here. Accordingly, they ask that the Commission not license the A block auction winners in these markets. They argue that the infrastructures that would be built by WirelessCo and AT&T Wireless would be of no use to them should they ultimately be awarded the A block licenses. They further contend that in the event they are awarded the A block licenses, WirelessCo and AT&T Wireless should have the opportunity to rebid for the remaining B block licenses. To ensure that these licenses are available in this eventuality, Petitioners request that the Commission not award the San Francisco and Boston B block licenses. 4. WirelessCo, PacTel, and AT&T Wireless filed timely oppositions to AMT and DSST's Petitions to Deny on May 25, 1995. WirelessCo maintains that Petitioners lack standing because they did not participate in the auction and therefore have no tangible claim to the licenses. Moreover, WirelessCo observes that Petitioners fail to allege why grant of their applications would be prima facie inconsistent with the public interest. Finally, WirelessCo alleges that Petitioners' alternate request for stay is procedurally defective. PacTel agrees that Petitioners' claim to the licenses is speculative, based on the unlikely possibility that Petitioners would be successful on appeal. PacTel further observes that even if Petitioners are successful, they fail to demonstrate how granting the B block license for the San Francisco MTA is inconsistent with the public interest. Rather, PacTel maintains that the public interest would be served by the prompt introduction of PCS services. AT&T Wireless urges the Commission to deny the Joint Petition filed against their application on grounds that Petitioners fail to demonstrate that AT&T Wireless is unqualified to hold the license or that there is some other legitimate basis for denying the application. AT&T Wireless further observes that the Joint Petition does not satisfy the criteria required for stay of the license grants. 5. On June 7, 1995, AMT and DSST filed a reply to WirelessCo's opposition. Petitioners dispute WirelessCo's assertion that they lack standing, alleging that they would be directly harmed if the A block applications for the San Francisco and Boston MTAs were granted. Petitioners maintain they would be harmed because, should they ultimately obtain a pioneer's preference as a result of their appeal, their ability to introduce PCS service quickly would be thwarted if the license had already been granted to another party. Moreover, Petitioners argue that the public interest would not be served by granting the licenses because the outcome of the litigation is uncertain. Petitioners therefore urge the Commission to exercise the flexibility afforded by the Communications Act and delay licensing the A and B block licenses for the San Francisco and Boston MTAs. III. DISCUSSION 6. The Commission's Rules provide that a petition to deny must "[c]ontain specific allegations of fact ... sufficient to demonstrate that the petitioner is a party in interest and that grant of, or Commission action regarding, the application would be prima facie inconsistent with the public interest." As discussed below, petitioners fail to satisfy either criteria. Accordingly, their petitions to deny or dismiss the applications for the A and B block licenses in the San Francisco and Boston MTAs are denied. Additionally, we deny Petitioners' alternative request to defer licensing until pending litigation regarding the Pioneer's Preferences Reconsideration Order is resolved. A. Standing 7. Only a party in interest has standing to protest an application before the Commission. To establish party in interest standing, petitioners must allege facts sufficient to demonstrate that grant of the subject application would cause them to suffer a direct injury. In addition, petitioners must demonstrate a causal link "between the claimed injury and the challenged action." To demonstrate a causal link, petitioners must establish that: (1) "these injuries fairly can be traced to the challenged action;" and (2) "the injury would be prevented or redressed by the relief requested." 8. We find the facts alleged by Petitioners to be insufficient to confer standing. Petitioners' claim to the Boston and San Francisco A block licenses is based on a lawsuit appealing the Commission's denial of their pioneer's preference requests. Petitioners allege that they would be harmed by grant of the licenses in question to the auction winners should Petitioners ultimately be awarded the licenses. Based on these facts, we find that Petitioners have not alleged an "injury in fact" fairly traceable to the grant of the challenged licenses. First, the alleged injury is contingent on Petitioners winning their judicial appeal. Even if Petitioners are successful, the alleged injury also presumes that the Commission would be persuaded on remand to award Petitioners a pioneer's preference license. An allegation of injury based on these hypothetical events is too remote and speculative to confer standing. 9. Moreover, even if Petitioners' appeal is successful, they cannot demonstrate any injury traceable to the grant of the licenses. Petitioners themselves acknowledge that "license grants which are challenged by litigation are subject to that litigation and may be undone if the basis of the grant is reversed as a result of the outcome of the litigation." Thus, in the unlikely event that Petitioners win their appeal, the Commission could elect to rescind the A block licenses and award them to petitioners. Any costs associated with transferring the licenses would be borne by the licensees and not by petitioners. In short, there is no logical nexus between the alleged injury and the grant of the A block licenses. Petitioners' challenge to the B block licenses is even more remote, in that it is intended to redress a hypothetical and contingent injury to the A block applicants, not Petitioners, in the event that Petitioners win their appeal. Such allegations are not even remotely sufficient to confer standing on Petitioners to challenge any of the petitioned applications. B. Public Interest Analysis 10. While we have sufficient reason to dismiss AMT and DSST's petitions for lack of standing, we also find their substantive allegations are without merit. Under Section 309(d)(1) of the Communications Act, parties filing a petition to deny must make specific allegations of fact sufficient to show that a grant of the application would be prima facie inconsistent with the public interest, convenience, and necessity. Based on the pleadings and supporting materials before us, we find that petitioners have not met this standard and we thereby deny their petitions. Petitioners do not allege, much less demonstrate, that any of the applicants have engaged in misconduct or are otherwise unqualified to provide broadband PCS service. In fact, Petitioners concede that each of the applicants is "well-qualified to construct and operate broadband PCS systems." Rather, Petitioners argue that granting the licenses is inconsistent with the public interest on grounds that the pending litigation puts the winning bidders at risk and that significant resources may be needlessly expended should Petitioners be awarded the licenses on appeal. 11. We see no reason to deny the applications at issue in order to protect the winning PCS applicants in the Boston and San Francisco markets from the risk of "needless expenditures." The assessment of any risks posed by the pioneer's preference litigation can best be made by the applicants themselves. Accordingly, we do not find that the public interest would be served by grant of the petitions to deny. To the contrary, we find that the prompt implementation of PCS service will serve the public interest by offering consumers additional communications choices and providing additional competition to existing cellular services. Accordingly, any delay in the introduction of new competition will harm customers by limiting their choices and will, in all likelihood, result in higher, less competitive prices for wireless services. We are therefore unpersuaded by Petitioners' concerns and believe that the public interest favors rapid introduction of PCS service to the public. C. Petitioners' Request to Defer Licensing 12. Petitioners request that if their petitions are denied, the Commission alternatively defer the grant of the San Francisco and Boston licenses. We concur with WirelessCo and AT&T Wireless that the effect of their request is to seek a stay of the license grants. At the outset, we note that any request for stay must be filed as a separate pleading, and that Petitioners' request is therefore procedurally defective. 13. While we find that petitioners' stay request must be discmissed on account of its procedural deficiencies, we also conclude that petitioners do not meet the standard required for grant of a stay. Specifically, petitioners must establish that: (1) they are likely to succeed on the merits of their appeal; (2) they will suffer irreparable harm if a stay is not granted; (3) other interested parties will not be harmed by a stay; and (4) the public interest favors grant of a stay. The Commission previously has determined that the cornerstone of our test turns on whether the party requesting a stay will suffer irreparable harm. Accordingly, if a party fails to demonstrate that it will suffer irreparable harm, a stay will not be granted. 14. We find that Petitioners have failed to make the required showing of irreparable harm. Petitioners argue that, because a pioneer licensee is required to implement the technology upon which its preference is based, the "largely inconsistent" infrastructure that the A block licensees would construct in the San Francisco and Boston MTAs would be of little use to them. As Petitioners concede, however, this infrastructure investment is a cost that would be borne by the A block applicants, and not by AMT or DSST. Thus, even if petitioners received a pioneer's preference for the San Francisco and Boston A block MTAs after the A block applicants had constructed their systems, petitioners would suffer no harm. Rather, as discussed supra, the A block applicants would bear the risk if petitioners are successful on appeal. Petitioners are therefore unable to demonstrate that they would suffer any harm from grant of the licenses, much less irreparable harm that would warrant a stay of the licensing process. IV. CONCLUSION 15. Having reviewed the application and the pleadings filed in this matter, we conclude that grant of the subject application will serve the public interest, convenience, and necessity, and that the petitioners have not sufficiently alleged facts establishing that grant of the application would be inconsistent with the public interest, convenience, and necessity. V. ORDERING CLAUSES 16. Accordingly, pursuant to our authority under Section 309(d)(2) of the Communications Act of 1934 as amended, 47 U.S.C.  309(d)(2), IT IS ORDERED that the Petitions filed by AMT and DSST against the A and B block applications for the San Francisco and Boston MTAs ARE HEREBY DENIED. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney Chief, Wireless Telecommunications Bureau