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A. 1. a.(1)(a) i) a)T,0*ÍÍ,*Í ., US!!!! ! #:}D4P XP#     X` hp x (#%'0*,.8135@8:<    #:}D4P XP#,0*ÍÍ,*Í ., US!!!! ! #:}D4P XP#footnote tex#X'p #FxX  Pg9CXP#referenceY;#FxX  Pg9CXP#itemizeX1Z&V 8F ` hp xr#FxX  Pg9CXP#2wt[in\ ]p]jq L+rheader2[I ` hp x`    #FxX  Pg9CXP# CitatorFormat Secretary's Citator Output File\W r5-#d6X@`7Ͽ@# XX  X B r5-S  BFormat DownloadFormat Downloaded Document]iޛ r5- XX    \ #d6X@`7Ͽ@#"S^!*22SN!!!2D!2222222222!!DDD2\==CH==HH!,C8SCH=H=28H=S=88''*2!22,2,22,H2222''2,C,,'((6!!!Y!!!!!!!!!!2=2=2=2=2=2YCC,=,=,=,=,!!!!C2H2H2H2H2H2H2H2H28,=2H2H2H28,H2=2=2=2C,C,C,C,H2=,=,=,=,H2H2H2H2H2H2H2!2!2!!!2,!C,88!8!8!8C2C2C2H2H2^C='='='2'2'2'2'8!8!8!H2H2H2H2SC8,8'8'N#42'222222KK2LL2K882Y!!22b22Y!8dtDD77DDc<&,N(N(ZZf"  xthe C block auction and alleges that we have failed to follow the directives of the Sixth Circuit  X- xfollowing the Cincinnati Bell remand. All three petitions are substantially the same. Radiofone  xyclaims standing based on the assertion that it did not have a "fair chance" to bid at the C block  X- x-PCS auction.k/ yO6-#C\  P6QP#э New Orleans Petition at 8.k Petitioner then lists three reasons why a grant of the three applications would not  xbe in the public interest. First, it contends that the auctions involving the Louisiana BTAs were  xunlawful because they were held pursuant to rules declared invalid by the Sixth Circuit.  xPetitioners claim that the Commission should have completed its rulemaking on remand from  Xa- xCincinnati Bell before it began or completed the C block auction.baX/ {Oj -#C\  P6QP#э Id. at 89.b Second, Radiofone notes its  XL- xintention to challenge the 45 MHz spectrum cap.  It claims that the Commission's retention of  X7- xjthe spectrum cap in the Broadband PCS Report and Order suffers from the same infirmities as  X" - xthe PCS/cellular crossownership rule.a" / {O-#C\  P6QP#э Id. at 11.a Radiofone also criticizes the Commission's decision not  xto apply the modified rules to the A, B and C block auctions and urges the Commission not to  X - xZgrant the applications while these issues are still pending.T |/ {M!-#C*f9 xQMX#э Id.T Finally, Radiofone submits that grant  xjof the above applications does not promote efficient use of the spectrum pursuant to 47 U.S.C.  x? 309(j)(3)(D), because it would deprive Radiofone of a "chance to use its technical PCS  X - xexpertise" to benefit potential customers. / {Ol-#C*f9 xQMX#э Id. #C\  P6QP#at 12. Radiofone urges the Commission to deny the  X- xapplications of the winning bidders and reauction the frequencies.|/ {M-#C*f9 xQMX#э Id. #C\  P6QP#| Radiofone seeks  xconsideration by the full Commission because its "petition involves the complexities of prior  xlitigation, rulemakings, a pending waiver request and Radiofone's upcoming challenge to the  XS-Broadband PCS Report and Order."S. / {O2-#C\  P6QP#č #C*f9 xQMX# Id. #C\  P6QP#at 14.   x6. DCR, the winning bidder in New Orleans and HoumaThibodaux, filed an opposition  xMto Radiofone's petitions with respect to those markets. First, it argues that Radiofone lacks  X- x?standing because it voluntarily withdrew from the bidding. / yOj"-#C*f9 xQMX##C\  P6QP#э DCR Opposition at 3.#C*f9 xQMX#ѳ DCR further alleges that if  x.Radiofone were to prevail on the merits of its appeal with respect to the legality of the 45 MHz  xcap as it affects its C block eligibility, the court's decision would likely safeguard its rights. If  xzRadiofone does not prevail on that question, DCR reasons that it will not have suffered any"P ,N(N(ZZ"  X- xinjury as a result of DCR's winning bid./ {Oy-#C\  P6QP#э #C*f9 xQMX# Id. #C\  P6QP#at 34. DCR notes that Radiofone did not challenge DCR's  xqualifications as a licensee. As to Radiofone's claim that the auction was illegal, DCR notes that  xthe Commission permitted Radiofone to participate in the C block auction conditioned on the  X- xKoutcome of the remand proceedings from Cincinnati Bell.  DCR states that Radiofone voluntarily  x]withdrew from the bidding despite assurances from the Commission that it would not be  xpenalized. Had Radiofone stayed in the auction and submitted the high bid, DCR contends, it  Xx- xwould now be in a position to pursue judicial review.bxZ/ {O -#C\  P6QP#э Id. at 56.b DCR also suggests that Radiofone's real  xmotivation for dropping out of the bidding may have been its unwillingness to compete with the  XJ- xescalating bids.J/ {O -#C*f9 xQMX#э Id. #C\  P6QP#at 6. Next, DCR alleges that regardless of Radiofone's challenge to the  xCommission's rules, there is no basis for denying or delaying a grant to a fully qualified  X - xapplicant.[ ~/ {OK-#C\  P6QP#э Id. [ Finally, DCR alleges that Radiofone's "technical expertise" argument could apply  X -to any disappointed auction bidder.h / {O-#C\  P6QP#č Id. at 67.h   X -  x7. Meretel, the winning bidder in the Baton Rouge market, filed an opposition to  xRadiofone's petition accusing Radiofone of attempting to eliminate a prospective wireless  X - xycompetitor in Baton Rouge.i / yO-#C\  P6QP#э Meretel Opposition at 2.i Meretel further argues that the petition is procedurally defective  X- xbecause it fails to even discuss Meretel's qualifications as a licensee.2 / {Ou-#C*f9 xQMX#э Id.#C\  P6QP# at 34. In response to petitioner's  xargument that the Commission had deprived it of an opportunity to serve the public, Meretel  xnotes that Radiofone is eligible under the 45 MHz spectrum cap to bid for up to 20 MHz of  XM- xspectrum in the D, E and F block auctions in the Baton Rouge BTA.`M / {O-#C\  P6QP#э Id. at 5.` Meretel further argues  xthat Radiofone's actions undermine its claim that it was forced to withdraw due to the risk of bid  x.withdrawal penalties. Meretel contends that Radiofone's real reason for withdrawing was that  X-"the cost of PCS Block licenses was simply too high."` V / {O#-#C\  P6QP#э Id. at 8.`   !x8. In response to the Oppositions of DCR and Meretel, Radiofone argues that it indeed  xhad standing, but that it was forced to withdraw from the bidding due to the failure of the" ,N(N(ZZ"  X- xCommission to give it adequate guarantees against the imposition of withdrawal bid penalties.f!/ yOy-#C\  P6QP#э Reply to DCR at 56. f  xzPetitioner further argues that it is not necessary to make specific allegations against DCR or  xMeretel. Rather, Radiofone contends, it is sufficient to say that a grant of their "applications  xjwould be inconsistent with the public interest because the auction was conducted pursuant to  X- xrules that the Sixth Circuit held to be unlawful.""X/ {O-#C\  P6QP#э #C*f9 xQMX#Id. #C\  P6QP#at 6. Radiofone further argues that subjecting DCR  xkand Meretel to the risk of possibly having to participate in a new auction when the pending  Xv-litigation is concluded would not serve the public interest.`#v/ {O -#C\  P6QP#э Id. at 8.`   x9. Finally, Radiofone takes issue with the claim that it was simply trying to eliminate a  xpotential wireless competitor from the market. Radiofone argues that it must have a fair  X -opportunity to obtain a 30 MHz PCS license to remain competitive in the Louisana BTAs.$ |/ yOG-#C\  P6QP#э Reply to Meretel at 2.#C\  P6QP#ю  X -x IV. DISCUSSION ă   "x10. Radiofone requests that the full Commission consider its petitions because they  xinvolve "the complexities of prior litigation, rulemakings, a pending waiver request and  X- xxRadiofone's upcoming challenge to the [Broadband PCS] Report and Order."z% / {OM-#C\  P6QP#э Baton Rouge Petition to Deny at 13.z It is not unusual,  xzhowever, for particular applications to be addressed at the Bureau level at the same time the  xkservice as a whole is potentially affected by ongoing administrative or judicial proceedings.  xAccordingly, we conclude that Radiofone has failed to demonstrate why the Bureau should not rule on its petitions in the first instance.   x11. Meretel and DCR claim that Radiofone lacks standing to petition their applications  xbecause it voluntarily dropped out of the C block bidding despite assurances from the  xCommission that it would not impose monetary penalties in the event Radiofone was the high  xbidder in the C block and was ultimately denied a license. Radiofone contends that it was  x"forced" to withdraw from the auction and should not be denied standing on this basis. We see  xno need to address the issue of whether Radiofone's withdrawal from the auction was voluntary.  xBased on its initial participation in bidding on the Louisiana BTAs in the C block auction, we  Xg-conclude that for the purposes of this Order, we will grant Radiofone standing.&\g/ yO$- xԍ We note that a party may have standing before an administrative agency but not necessarily have standing  {O~%- xbefore an Article III federal appeals court. See, e.g., Competitive Enterprise Institute v. U.S. Dept. of Transportation,  {OH&-856 F.2d 1563, 1565 (D.C. Cir. 1988). Ā "P &,N(N(ZZ"Ԍ  x12. Turning to the merits, we conclude that Petitioner has failed to demonstrate that a  xgrant of the above license applications would be inconsistent with the public interest. Under  X- xSection 309(d)(1) of the Communications Act,j'/ yOK-#C\  P6QP#э 47 U.S.C.  309(d)(1).j parties filing petitions to deny must make  X- xspecific allegations that a grant of the application would be prima facie inconsistent with the  X- xpublic interest, convenience and necessity.(X/ {O-#C\  P6QP#э Astroline Comm. Co. L.P. v. FCC, 857 F.2d 1556, 1561 (D.C. Cir. 1988), quoting 47 U.S.C.  309(d)(1). Except where official notice may be taken, such  xallegations must be supported by affidavits of persons with personal knowledge of the facts  xyalleged. Section 309(d)(2) states that if the pleadings and affidavits fail to raise substantial and  xmaterial questions of fact and the Commission concludes that grant of the application would be  XJ-in the public interest, the Commission shall deny the petition.p)J/ {O -#C\  P6QP#э 47 U.S.C.  309(d)(2).p   Px13. Based upon the pleadings before us, we find that petitioner has failed to raise  xsubstantial and material questions of fact under this standard. In fact, Radiofone's petitions  xicontain no allegations at all, much less supporting affidavits, regarding the qualifications of either  x.DCR or Meretel. Instead, Radiofone asks us to deny the applications based solely on the fact  X - xithat it has challenged the Commission's rulemaking addressing the Cincinnati Bell remand issues  X - xMand the Commission's decision to proceed with the C block auction. Radiofone argues that  xgranting license applications where, as here, the underlying licensing procedures are subject to  xa pending judicial challenge does not serve the public interest. We disagree. Neither the  xCommission nor the court has stayed the licensing process based on Radiofone's challenge.  x\While Meretel and DCR may be affected by the outcome of ongoing rulemakings or judicial  x=proceedings, these proceedings have nothing to do with their qualifications as applicants and  xprovide no basis for denying these applications. If we were to defer processing of Meretel and  xDCR's applications on this basis, they would be severely harmed and service to the public would  xbe significantly delayed. Conversely, grant of the licenses to Meretel and DCR does not  xMprejudice any right Radiofone may otherwise have to appeal the Commission's actions with  X-respect to the Cincinnati Bell remand or the C block auction rules.*|/ yO-ԍ We also note that Radiofone is currently participating in the D, E, and F block auction.  X-x` `   V. CONCLUSION #XP\  P6QXP#   lx14. Having reviewed the applications and the pleadings filed in this matter, we conclude  xthat grant of the subject applications will serve the public interest, convenience, and necessity,  x[and that Radiofone has not alleged facts establishing that a grant of the applications would be  xxinconsistent with the public interest, convenience and necessity. Therefore, we deny Radiofone's petitions and grant the above applications.   0x15. The grant of DCR's and Meretel's applications is expressly conditioned on payment" *,N(N(ZZ;"  X- xjwithin five (5) business days of release of this Order of the remaining portion of the 10 percent  xdown payments due on each of the licenses. Payment of the remainder of the amount due on  xeach license will be made in quarterly installments in accordance with Parts 1 and 24 of the  xCommission's rules. For each license granted, DCR PCS, Inc., and Meretel Communications,  xL.P. will receive from the United States Department of the Treasury an original note documenting  xits installment payment obligations and a security agreement commemorating the Commission's  xsecurity interest in the license in the event of default. The notes and security agreements will  xinclude instructions on the completing, signing, and return of the documents to the Treasury  xLDepartment. The grant of DCR's and Meretel's applications is expressly conditioned on timely execution and return of the notes and security agreements in accordance with these instructions.  X - VI. ORDERING CLAUSES ă   x16. Accordingly, pursuant to Section 309(d) of the Communications Act of 1934, as  x\amended, 47 U.S.C.  309(d), IT IS ORDERED that the Petitions to Deny filed by Radiofone, Inc. ARE DENIED.   x17. IT IS FURTHER ORDERED that, pursuant to Section 309(a) of the Communications  xAct of 1934, as amended, 47 U.S.C.  309(a), the applications of DCR PCS, Inc. for Broadband  xPCS C block licenses in New Orleans and HoumaThibodaux, Louisiana and the application of  xMeretel Communications, L.P., for a Broadband PCS C block license in Baton Rouge, Louisiana, are GRANTED, subject to the conditions set forth above.   x18. IT IS FURTHER ORDERED, pursuant to Section 0.331 of the Commission's Rules,  x47 C.F.R.  0.331, that the request of Radiofone, Inc. for initial consideration of the above petitions by the full Commission IS DENIED. x` `  hhFEDERAL COMMUNICATIONS COMMISSION  Xg- #XP\  P6QXP#   x` `  hhMichele C. Farquhar x` `  hhChief, Wireless Telecommunications Bureau