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Genesee Stay Order

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Released: October 28, 2011

Federal Communications Commission

DA 11-1808

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

County of Genesee, New York
)
)

WT Docket No. 02-55
and
)
Mediation No. TAM-43102
)
Sprint Nextel Corp.
)

ORDER

Adopted: October 28, 2011

Released: October 28, 2011

By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau:
1.
On October 21, 2011, the County of Genesee, New York (Genesee) filed a motion to stay
the effect of the Public Safety and Homeland Security Bureau's (Bureau) Memorandum Opinion and
Order
that resolved a dispute between Genesee and Sprint Nextel Corporation (Sprint).1 The dispute,
which the Bureau resolved in Sprint's favor, involved whether a rebanding plan offered by Sprint
provides Genesee with comparable facilities following band reconfiguration.2 Following release of the
Bureau's decision, Genesee filed a Petition for Reconsideration (Petition).3 Genesee subsequently filed
the instant motion requesting a stay of the Bureau's decision pending disposition of Genesee's Petition.4
On October 26, 2011 Sprint filed an Opposition to the Motion for Stay.5 For the reasons discussed
below, we deny Genesee's motion for failure to meet established Commission criteria for issuance of a
stay.6
2.
Under Commission precedent, Genesee may only qualify for a stay if it demonstrates:
(i) it is likely to prevail on the merits; (ii) it will suffer irreparable harm, absent a stay; (iii) other
interested parties will not be harmed if the stay is granted; and (iv) the public interest favors a grant of
the stay.7
3.
Genesee argues that it is likely to prevail on the merits because the Bureau's decision in
the MO&O placed Genesee's operation within 1 MHz of Nextel's ESMR operations on General Category
Channels.8 We disagree. For reasons we will elaborate upon in responding to the Petition for


1 County of Genesee, New York, and Sprint Nextel Corp., WT Docket 02-55, Memorandum Opinion and Order,
DA 11-1521 (PSHSB September 9, 2011) (MO&O).
2 Id.
3 Petition for Reconsideration filed by the County of Genesee, New York (received Oct. 11, 2011).
4 Motion for Stay filed by the County of Genesee, New York (received Oct. 21, 2011).
5 Opposition to Motion for Stay filed by Sprint Nextel Corp. (Opposition) (received October 26, 2011).
6 We will address Genesee's Petition in a separate order.
7 See, e.g., Cincinnati Bell Telephone Company, Memorandum Opinion and Order, 8 FCC Rcd 6709 (1993),
citing Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F. 2d 921 (D.C. 1958);
modified by Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.
Cir. 1977).
8 Motion for Stay at 2.

Federal Communications Commission

DA 11-1808

Reconsideration, Genesee is not entitled to 1 MHz separation from Sprint's ESMR operations because it
is not a member of the class to which the Commission extended that protection.9
4.
Genesee further argues it will suffer irreparable harm if forced to comply with the
MO&O because it would have to conduct a second rebanding of its system once it prevails on its Petition
for Reconsideration.10 We disagree. The MO&O is silent on when Genesee must commence rebanding
its system. Genesee's only obligation under the MO&O is to submit a cost estimate and to negotiate a
Frequency Reconfiguration Agreement.11 Genesee has failed to demonstrate how either action causes it
irreparable harm.
5.
Genesee also argues that grant of the stay will not harm third parties and may actually
harm third parties that may reconfigure their systems to the channels the MO&O directed Genesee to
vacate and, therefore, would have to reconfigure their systems a second time should Genesee prevail on
its Petition for Reconsideration. 12 While we agree with Sprint that grant of the stay could have
programmatic impact affecting Sprint, we do not find another licensee who would be negatively affected
by grant of a waiver.13 However, because the stay criteria are conjunctive, and Genesee has not met the
first two prongs of the criteria for a stay, we need not decide whether the effects of a stay on Sprint is
sufficient to warrant denying Genesee's motion.
6.
Finally, Genesee argues that since it warrants a stay based upon meeting the other three
factors cited above, it would not be in the public interest to deny the stay.14 Since we find that Genesee
has not met two of those factors, we need not address Genesee's public interest argument.
7.
Genesee has failed to meet the requirements for obtaining a stay. Thus, we deny its
motion.
8.
Accordingly, pursuant to the authority of Sections 0.191, 0.392, 1.43 and 1.298(a) of the
Commission's Rules, 47 C.F.R. 0.191, 0.392, 1.43 and 1.298(a); and Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i) IT IS ORDERED that the Motion for Stay
filed by the County of Genesee IS DENIED.
9.
This action is taken under delegated authority pursuant to Sections 0.191 and 0.392 of
the Commission's rules, 47 C.F.R. 0.191, 0.392.
FEDERAL COMMUNICATIONS COMMISSION
Michael J. Wilhelm
Deputy Chief - Policy and Licensing Division
Public Safety and Homeland Security Bureau


9 See Improving Public Safety Communications in the 800 MHz Band, WT Docket 02-55, Second Report and
Order
, 23 FCC Rcd 7605, 7616 25 (2008).
10 Motion for Stay at 2.
11 MO&O 41-43.
12 Motion for Stay at 2-3.
13 Opposition at 4.
14 Motion for Stay at 3.
2

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