WPC  2BFJ Z Courier X-Њ#Xj\  P6G;+XP#HP LaserJet 4Si LPT2 5604_1HPLA4SAD.PRSx  @\!SX@216-FK3|j'CourierTimes New RomanTimes New Roman Bold  P6G;xXP#CourierTimes New RomanHPLAS5S0.PRSx  @\s!hX@"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd2 Dc`KKY CourierTimes New RomanTimes New Roman BoldTimes New Roman ItalicTimes New Roman Bold ItalicCourierTimes New RomanTimes New Roman BoldTimes New Roman ItalicTimes New Roman Bold ItalicC:,+Xj\  P6G;XP7nC:,Xn4  pG;X\5hC:,-Xh*f9 xr G;XXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""Fx6X@`7X@7jC:,+Xj\  P6G;XP7nC:,Xn4  pG;X\5hC:,-Xh*f9 xr G;XXW!@(#,9h@\  P6G;hPy.X80,IX\  P6G;PH5!,,5\  P6G;,P\{,W80,-W*f9 xr G;X6jC:,DLXj9 xOG;X  X-  [ X- w Federal Communications Commission`(#wDA 9713  yxdddy  X  f+Before the [ FEDERAL COMMUNICATIONS COMMISSION 7Washington, D.C. 20554 X-\  X-In the Matter of hhCq) ` `  hhCq)  Xv-Auction of Interactive Video and Data Service)  X_-Licenses Scheduled to Begin February 18, 1997) ` `  hhCq)  X1-Emergency Motion for Stay, Pendente Lite of)  X -Commercial Realty St. Pete, Inc.hhCq) ` `  hhCq)  X -Emergency Motion for Partial Stay ofq)  X -Interactive America CorporationhhCq)  X- oORDER\  XK-Adopted: January 6, 1997qppReleased: January 6, 1997 By the Chief, Wireless Telecommunications Bureau:   X-  I. A. 1. a.(1)(a) i) a) 1. a. i.(1)(a)(i) 1) a)1.` ` We have before us: (a) an Emergency Motion for Stay, Pendente Lite filed by  d(#Commercial Realty St. Pete, Inc. (CRSPI) on December 16, 1996; and (b) an Emergency Motion  d(#"for Partial Stay filed by Interactive America Corporation (IAC) on December 17, 1996  d(#-(collectively, the "Stay Requests"). CRSPI seeks to stay the auction of 981 Interactive Video and  d(#Data Service (IVDS) licenses scheduled to begin on February 18, 1997. IAC seeks to stay the  d(#KIVDS auction with respect to the fifteen Metropolitan Statistical Area (MSA) IVDS licenses being  d(#reauctioned for which IAC was the winning bidder in the initial IVDS auction conducted in July  d(#1994. Both CRSPI and IAC rely on the four prong test for issuance of a stay set forth by the  X - d(#U.S. Court of Appeals for the D.C. Circuit in Virginia Petroleum Jobbers Ass'n v. FPC,v  yO-#X\  P6G;IP#э259 F.2d 921 (D.C. Cir. 1958).v as  X - d(#modified in Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc.X X yO"- v #X\  P6G;IP#э559 F.2d 841 (D.C. Cir. 1977). Under this test, a stay is warranted if the movant can demonstrate that: (1)  d(#Zit is likely to prevail on the merits; (2) it will suffer irreparable harm absent a stay; (3) interested parties will not be harmed if the stay is granted; and (4) the public interest would favor a grant of the stay. For the reasons discussed below, we hereby deny the Stay Requests.  X - D2.` ` Background. CRSPI and IAC were winning bidders in the IVDS auction  d(#conducted in July 1994 who failed to make timely down payments on the licenses they won, and"!x,-(-(ZZ "  X- d(#Mwhose requests for waiver of the payment deadline were denied by the Commission.^ {Oy- v N#X\  P6G;IP#эSee Requests for Waivers in the First Auction of Interactive Video and Data Service (IVDS) Licenses,  {OC- d(#;Order, 9 FCC Rcd 6384 (CCB 1994), review denied, Memorandum Opinion and Order, 10 FCC Rcd 12153 (1995),  {O -recon. denied, Memorandum Opinion and Order, 11 FCC Rcd 8211 (1996). Both  d(#parties have petitioned the U.S. Court of Appeals for the D.C. Circuit for review of the  X- d(#Commission's decision to deny the waiver requests.O {Oq- v k#X\  P6G;IP#эSee Commercial Realty St. Pete, Inc. v. FCC, No. 961271 (D.C. Cir., filed August 7, 1996), consolidated  {O;-with Interactive America Corp. v. FCC, No. 961320 (D.C. Cir., filed September 6, 1996).O On December 4, 1996, the Bureau  d(#yannounced that the Commission would commence an auction of IVDS licenses on February 18,  d(#=1997. The auction consists of previously unlicensed IVDS spectrum serving the Rural Service  d(#jAreas (RSA) of the United States, plus selected MSA licenses where the winning bidders from  Xv- d(#the July 1994 IVDS auction have been found to be in default.\vJ {Oq - v #X\  P6G;IP#эSee Public Notice, "Auction of Interactive Video and Data Service (IVDS), DA 961958, Report No. AUC {O;- d(#9613A" (rel. December 4, 1996); correction, Report No. AUC9613B (rel. December 10, 1996); modification, Report No. AUC9613C (rel. December 17, 1996). Among the 125 MSA licenses  d(#being reauctioned are the twenty licenses for which CRSPI failed to make timely down payments  XH-and the fifteen licenses for which IAC failed to make timely down payments.Hn  yOg- v #X\  P6G;IP#эAttachment A lists the licenses to be reauctioned for which CRSPI and IAC failed to make timely down payments.  X - 3.` ` CRSPI requests that the Commission stay the entire IVDS auction, whereas IAC  d(#requests only a stay of the reauction of the fifteen MSA licenses it won in the initial IVDS  d(#-auction. Both parties seek their respective injunctive relief until disposition of the pending Court  d(#of Appeals case. While maintaining that a stay should be granted because they are likely to  d(#succeed on the merits of their claim, both parties emphasize the alleged irreparable injury they  d(#would incur should the Commission reauction the disputed licenses before disposition of the court  d(#zcase. In that regard, CRSPI alleges that grant of the licenses for which CRSPI failed to make  d(#timely down payments will moot CRSPI's appeal, claiming that, once the spectrum is licensed  d(# to another party, the Court of Appeals has no power to provide meaningful relief even to a  d(#Lsuccessful petitioner. IAC is primarily concerned that the Commission will cause unnecessary  d(#and irreparable expenditure of time and money by both IAC and the reauction winners to litigate  d(#competing claims on the fifteen licenses for which IAC failed to make timely down payments.  d(#Finally, both CRSPI and IAC also maintain that granting a stay would not prejudice the rights of any parties and that a stay would serve the public interest.  X- 4.` ` Discussion. After examining the Stay Requests, we find that CRSPI and IAC have  d(#neither made a strong showing that they are likely to prevail on appeal nor a substantial case  d(#under the other criteria for a stay. In this case, CRSPI and IAC have not raised any new legal  d(#arguments that are sufficiently strong in the context of a stay request to meet the "likelihood of  d(#success on appeal" test. Such issues as auction winners' confusion over equipment availability,  d(#disparate treatment of parties, and whether the Commission gave reasoned consideration to waiver"N ,-(-(ZZ"  X- d(#requests have already been persuasively addressed by the Commission.s {Oy-#X\  P6G;IP#эSee supra footnote 3.s In any event, an  X- d(#evaluation of the Stay Requests under the remaining factors of the Virginia Petroleum/Holiday  X- d(# Tours test reveals that CRSPI and IAC have not demonstrated satisfaction of the stringent standards required for a stay pending court review.  X- _5.` ` Specifically, we find that CRSPI and IAC have failed to demonstrate the threshold  d(#.requirement for obtaining a stay " that they would suffer irreparable harm in the absence of a  d(#stay. An injury qualifies as "irreparable harm" only if it is "both certain and great; it must be  XL- d(#.actual and not theoretical."LZ {OW -#X\  P6G;IP#эWisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). Therefore, to demonstrate irreparable harm, CRSPI and IAC must  X5- d(#<provide "proof indicating that the harm [it alleges] is certain to occur in the near future."s 5 {O -#X\  P6G;IP#эId. (emphasis added).s CRSPI  d(#and IAC have supplied no such proof. As an initial matter, both parties' arguments are premised  d(#kon the purported irretrievable loss of the licenses for which they failed to make timely down  d(#payments should the reauction move forward. This argument disregards the fact that FCC  d(#licensing arises under the Communications Act, and any licenses awarded at the subject auction  X - d(#are, as a matter of law, subject to the outcome of the pending court cases. Z ~ {O- v l#X\  P6G;IP#эSee, e.g., Alianza Federal de Mercedes v. FCC, 539 F.2d 732, 73536 (D.C. Cir. 1976) (grant of FCC  d(#licenses are subject to limitations of the Communications Act, including the right of judicial review and obligation of the Commission to give effect to any presiding judgment). Therefore, the  d(#reauction of licenses for which these parties failed to make timely down payments does not moot  X- d(#jthe cases on appeal.3  {O- v #X\  P6G;IP#эSee id. at 736 (grant of a license renewal did not render moot the appeal from the grant of that license for the preceding period). Therefore, CRSPI's cites to mootness cases are irrelevant.3 In the unlikely event that the Court were to agree with the parties on the  d(#Kmerits of their petitions, the FCC would take whatever steps were necessary to afford the winning  Xh- d(#party the benefit of that ruling.( h  {O- v #X\  P6G;IP#эSee, e.g., FCC v. Radiofone, Inc., 116 S. Ct. 283 (Oct. 25, 1995) (Stevens, J., in chambers), motion to vac.  {O-denied, 116 S. Ct. 373 (Oct. 30, 1995).( Such FCC action would not require significant further litigation  d(# time or expense; in any event, even substantial injuries in terms of money, time and energy  X:- d(#<expended in the absence of a stay are not adequate grounds to justify a stay." :V  {OA!- v #X\  P6G;IP#эVirginia Petroleum, 259 F.2d at 925; see also Wisconsin Gas, 758 F.2d at 674; Price Cap Regulation of Local Exchange Carriers, 10 FCC Rcd 11979, 11987  19 (1995). " In that regard, we  d(# make it clear to these parties and all auction participants that any award of an IVDS license  d(#jthrough the reauction process would be taken subject to the results of the pending court case.  d(#=This is a familiar aspect of any Commission action that is currently under appeal, and is a well" ,-(-(ZZ "ԫ X- d(#.known implied condition of being a Commission licensee.? {Oy- v #X\  P6G;IP#эSee, e.g., Alianza, 539 F.2d at 73536; Revision of Rules and Policies for the Direct Broadcast Satellite  {OC-Service, Report and Order, 11 FCC Rcd 9712, 9773  152 (1995).? Notwithstanding IAC's insistence  d(#-to the contrary, the Commission's auction announcements need not expressly disclose matters of  d(#public record such as pending court cases that would be discovered through the level of due  d(#diligence we presume from potential auction participants. We fully expect that IVDS applicants  d(#who anticipate bidding on licenses subject to litigation will take into account that fact in their  d(#=decision to participate in the auction and the amount to bid for such licenses. Thus, any harm  d(#to CRSPI, IAC, or any of the bidders in the upcoming reauction in the absence of a stay is not irreparable.  X1-  6.` ` Further, we find that grant of the Stay Requests would not serve the public interest,  d(#ifor doing so would defeat the overarching policy objectives of the auction statute, which requires  d(#-the FCC, in designing an auction system, to promote the "rapid deployment of new technologies,  X - d(#products and services for the benefit of the public . . . ."t $ yO-#X\  P6G;IP#э47 U.S.C.  309(j)(3)(A).t If we were to accept the general  d(#arguments for granting the stay raised by CRSPI and IAC, subsequent spectrum reauctions would  d(#be at risk of substantial postponement while courts reviewed the myriad issues parties raised in  d(#attempts to circumvent reauctions for their individual purposes, such as procuring additional funds  d(#to cure a default in payment obligations. As noted above, these parties' weak arguments on the  d(#merits do not warrant the extraordinary relief they seek; granting such relief would simply reward  d(#those who fail to make timely payments at the expense of the public interest by frustrating the  d(#business plans of entities planning to bid on and pay for IVDS licenses in the upcoming auction  d(#zand initiate service to the public. Such a result would defeat the integrity of the expeditious auction process, unduly delaying the Commission from realizing its statutory obligations.  X- %7.` ` Conclusion. CRSPI and IAC have failed to make the requisite showings of  d(#Kirreparable harm and public interest that are necessary to justify the extraordinary relief they seek.  d(#For these reasons, CRSPI's Emergency Motion for Stay, Pendente Lite and IAC's Emergency Motion for Partial Stay ARE DENIED.  X|- 8.` ` This action is taken pursuant to authority delegated by  0.131 of the Commission's Rules, 47 C.F.R.  0.131. ` `  hhCqFEDERAL COMMUNICATIONS COMMISSION ` `  hhCqMichele C. Farquhar, Chief ` `  hhCqWireless Telecommunications Bureau"!,-(-(ZZ "  X<N ATTACHMENT A ă 20 licenses for which Commercial Realty St. Pete, Inc. failed to make timely down payments:  X-MSA` `  hhCqLicense No.  X-DetroitAnn Arbor, MIhhCqZVM005A  Xw-St. Louis, MO hhCqZVM011A  X`-MiamiFort LauderdaleHollywood, FLqZVM012A  XI-Pittsburgh, PA hhCqZVM013A  X2-Baltimore, MD hhCqZVM014A  X -MinneapolisSt. Paul, MNhhCqZVM015A  X -Atlanta, GA` `  hhCqZVM017A  X -San Diego, CA hhCqZVM018B  X -DenverBoulder, CO hhCqZVM019A  X -SeattleEverett, WA hhCqZVM020A  X -Milwaukee, WI hhCqZVM021A  X-TampaSt. Petersburg, FLhhCqZVM022A  Xz-Kansas City, MOKShhCqZVM024A  Xc-Phoenix, AZ` `  hhCqZVM026A  XL-Indianapolis, IN hhCqZVM028A  X5-Portland, ORWA hhCqZVM030A  X-Sacramento, CA hhCqZVM035A  X-GreensboroWinston SalemHigh Point, NCZVM047A  X-CharlotteGastonia, NChhCqZVM061A  X-RaleighDurham, NChhCqZVM071A 15 licenses for which Interactive America Corporation failed to make timely down payments:  X}-MSA` `  hhCqLicense No.  Xf-San Diego, CA hhCqZVM018A  XO-San Jose, CA` `  hhCqZVM027A  X8-San Antonio, TX hhCqZVM033A  X!-Memphis, TNARMShhCqZVM036A  X -Salt Lake CityOgden, UThhCqZVM039B  X-Oklahoma City, OK hhCqZVM045A  X-NashvilleDavidson, TNhhCqZVM046B  X -Honolulu, HI` `  hhCqZVM050A  X!-Tulsa, OK` `  hhCqZVM057A  X"-Las Vegas, NV hhCqZVM093B  X#-LakelandWinter Haven, FLhhCqZVM114A  Xi$-Santa BarbaraSanta MariaLompoc, CAqZVM124A  XR%-SalinasSeasideMonterey, CAhhCqZVM126A  X;&-Reno, NV` `  hhCqZVM171A  X$'-Fort Pierce, FL hhCqZVM208A