Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-2496 In the Matter of ) ) Request of Radiofone, Inc. for a) Stay of the C Block Broadband PCS) Auction and Associated Rules ) ORDER Adopted: December 20, 1995 Released: December 20, 1995 By Acting Chief, Wireless Telecommunications Bureau: 1. On December 8, 1995, Radiofone, Inc. ("Radiofone") filed an "Emergency Request for Stay" of the C block broadband Personal Communications Services ("PCS") auction, which commenced on December 18, 1995, and the Commission's rules concerning the eligibility of cellular licensees to obtain 30 MHz PCS licenses in the same area where they already have 25 MHz cellular licenses. On the same day, Radiofone filed an "Emergency Petition for Rulemaking" that asks the Commission to initiate a rulemaking proceeding to amend Sections 24.204 and 20.6 of the Commission's Rules, 47 C.F.R.  24.204, 20.6. Radiofone asks for a stay of the auction and the rules "until the Commission completes its action" on Radiofone's rulemaking petition. Cook Inlet Region, Inc., filed an opposition to the stay request on December 11, 1995. 2. In considering this request for extraordinary relief we consider: (1) whether Radiofone has a likelihood of prevailing on the merits of its rulemaking petition; (2) whether Radiofone will suffer irreparable harm if a stay is not granted; (3) whether other interested parties will be harmed if the stay is granted; and (4) whether the grant of a stay will further the public interest. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); In the Matter of Petition of the Connecticut Department of Public Utility Control to Retain Regulatory Control of Wholesale Cellular Service Providers in the State of Connecticut, PR Docket No. 94-106, FCC 95-387 (released September 5, 1995). Radiofone's request meets none of these standards. 3. As to the merits of its claim, Radiofone argues that the Commission cannot apply any of its rules, including the 45 MHz spectrum cap for Commercial Mobile Radio Services ("CMRS"), to the extent that it would bar Radiofone, an incumbent cellular licensee, from acquiring a 30 MHz PCS license without the Commission first conducting "the 'further proceeding' directed by the Court" in Cincinnati Bell v. FCC, No. 94-3701 (6th Cir., slip op., Nov. 9, 1995). Although the Court remanded the PCS/cellular cross-ownership rule (47 C.F.R.  24.204), it expressly left intact the 45 MHz limit in 47 C.F.R.  20.6, slip op. at 23 n. 6, which the Court recognized as "an independent limitation on the amount of spectrum that any entity is able to aggregate in a single wireless communications service area." Id. at 23. We believe that it is very unlikely that the Commission would, in response to Radiofone's rulemaking petition, reexamine the merits of the 45 MHz spectrum cap, which was adopted a little over a year ago to promote competition, discourage anti-competitive behavior and create incentives for innovation and efficiency in CMRS, including broadband PCS. This rule was not the subject of the Sixth Circuit's remand, and like the PCS/cellular cross-ownership rule, already contains special accommodations for small business through more relaxed ownership attribution criteria for the C block auction (see 47 C.F.R.  20.6(d)(2), 24.204(d)(2)(ii)). It appears, however, that Radiofone's request would have the Commission expand this special attribution provision even further to exempt all cellular licensees eligible for the C block auction, not just small businesses. Additionally, since Radiofone's rulemaking petition implicates the basic underpinnings of the PCS/cellular cross-ownership rule and the CMRS spectrum cap, such a rulemaking could possibly implicate other wireless spectrum limits not mentioned by Radiofone and never challenged: i.e., 40 MHz limit in same broadband PCS market (47 C.F.R.  24.229(c)); 50 MHz limit on same-market cellular (47 C.F.R.  22.942); and ownership restrictions in narrowband PCS (47 C.F.R.  24.101). Given that the C block auction began on December 18, 1995, Radiophone is incorrect in suggesting that such a proceeding could be completed before the commencement of the C block auction. 4. Denying Radiofone's stay request will not cause it irreparable harm. Radiofone and similarly situated companies are not barred from participating in the C block auction, despite application of the 45 MHz CMRS spectrum cap. See Public Notice, "FCC Will Proceed with C Block Auction on Schedule" (Wireless Tel. Bur. Nov. 13, 1995). Even if Radiofone's pending request to waive the 45 MHz cap (as well as the PCS-cellular cross-ownership rule) is denied, the Commission will not "foreclose . . . Radiofone from obtaining a thirty MHz Personal Communications Service license within [its] geographic region." Such license, once obtained, will be conditioned on compliance with the Commission's rules that ultimately "result from further judicial and administrative proceedings" as well as the Commission's ruling on Radiofone's waiver request. Nov. 13, 1995 Public Notice, supra. Radiofone has always been allowed to bid unconditionally on any of the 490 licenses outside of its cellular service areas and it's affiliates have submitted applications and upfront payments to bid on these licenses. See Public Notice, "Qualified Bidders and Bidding Instructions for December 18, 1995 Broadband PCS C Block Auction", Attachment A at 1, 2 & 4, Attachment B at 6, 16 & 42-43 (Auc. Div. December 8, 1995). Nevertheless, Radiofone alleges that it will suffer irreparable harm because (1) it lacks assurances that it will not have to forfeit its upfront payment if it withdraws a high bid, (2) that it will not have its license revoked if its common PCS and cellular ownership does not comply with the Commission's rules, and (3) that it will be able to divest its cellular properties at full value, if necessary, to come into compliance with the Commission's rules. Radiofone also indicates that it could somehow be prevented from participating in future auctions for 10 MHz PCS licenses. These uncertainties are not unique to Radiofone and do not rise to the level of irreparable harm that would be caused by a stay of the C block auction. 5. It is clear that the grant of a stay would cause irreparable harm to other parties and would be inconsistent with the public interest. In addition to Radiofone's affiliates, 251 qualified bidders have tendered more than $763 million to the U.S. Treasury in preparation for the C block auction. As Cook Inlet points out in its opposition, the Commission is not authorized to pay interest on these amounts during any delay that would be caused by a rulemaking proceeding. Most significantly, as the Commission has repeatedly demonstrated before the D.C. Circuit Court of Appeals, the Sixth Circuit and the Supreme Court, further delay of the auction will cause severe harm to each of the other C block applicants and to the United States. See Federal Communications Commission v. Radiofone, Inc., 116 S.Ct. 283 (1995, Stevens, J., in chambers) ("[T]he harm to the public caused by a nationwide postponement of the auction would outweigh the possible harm to [Radiofone]."), motion to vacate denied, 116 S.Ct. 373 (1995) (Mem.); Omnipoint v. FCC, No. 95-1391 and consolidated cases (D.C. Cir. Sep. 28, 1995) (order dissolving stay); Radiofone v. FCC, No. 95-3238 (6th Cir. June 12, 1995) (order denying Radiofone's stay request, "especially noting the possible injuries to other parties and the public interest"). 6. Accordingly, IT IS ORDERED that the "Emergency Request for Stay" filed by Radiofone, Inc., IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Michele C. Farquhar, Acting Chief, Wireless Telecommunications Bureau