*Pages 1--3 from Microsoft Word - 795.doc* Federal Communications Commission DA 00- 795 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of the Application of AA& T WIRELESS SERVICES Request for Reinstatement Nunc Pro Tunc and/ or Stay of Processing Action ) ) ) ) ) ) FCC File No. 9600083 ORDER Adopted: April 7, 2000 Released: April 10, 2000 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: 1. Introduction. This Order addresses a request filed by AA& T Wireless Services (AA& T) on February 4, 2000, 1 to reinstate nunc pro tunc the above- captioned application or, in the alternative, stay the dismissal 2 of the application. For the reasons set forth below, we deny the request. 2. Background. On September 13, 1995, an application filed by No Wire, L. L. C. (No Wire) seeking authorization to operate a point- to- point microwave station on the 38. 6- 40. 0 GHz (39 GHz) band in the Richmond, Virginia area was placed on public notice. 3 On October 2, 1995, AA& T filed an application for authorization to operate a point- to- point microwave station in the 39 GHz band in Fredericksburg, Virginia. 4 AA& T’s application was mutually exclusive with No Wire’s application. 3. On December 15, 1995, the Commission suspended the processing of pending mutually exclusive 39 GHz applications and the filing of amendments thereto, pending the outcome of a rulemaking proceeding affecting this service. 5 In a Report and Order and Second NPRM, released on November 3, 1997, the Commission stated that it would 1) “dismiss without prejudice all pending mutually exclusive applications, unless the mutual exclusivity was resolved by an amendment of right filed before December 15, 1995,” and 2) “dismiss without prejudice all applications that had not been placed on public notice or 1 Letter from Walter H. Sonnenfeldt, counsel for AA& T Wireless Services, to Mary M. Shultz, Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division (filed Feb. 4, 2000) (Request). 2 Letter from Mary M. Shultz, Chief, Licensing and Technical Analysis Branch, Public Safety and Private Wireless Division to AA& T Wireless Services (Dec. 21, 1999) (Dismissal Letter). 3 FCC File No. 9509579. Public Notice, Report No. 1152 (rel. Sep. 13, 1995). 4 FCC File No. 9600083. Public Notice, Report No. 1157 (rel. Oct. 18, 1995). 5 Amendment of the Commission’s Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, Notice of Proposed Rule Making and Order, ET Docket No. 95- 183, 11 FCC Rcd 4930, 4988- 4989 ¶ 123 (1995) (NPRM and Order). 1 Federal Communications Commission DA 00- 795 2 completed the 60- day cut- off period as of November 13, 1995.” 6 On July 29, 1999, the Commission affirmed its license processing rules in a Memorandum Opinion and Order and reiterated that it would “dismiss all amendments, filed on or after December 15, 1995, including those intended to resolve mutual exclusivity among pending 39 GHz applications.” 7 The Commission further decided to dismiss as unripe “those applications for which the 30- day public notice period was not completed by the November 13, 1995 Freeze Order” date. 8 4. On December 21, 1999, the Public Safety and Private Wireless Division, Licensing and Technical Analysis Branch (Branch) dismissed AA& T’s application. 9 The application was mutually exclusive with No Wire’s application and the mutual exclusivity was not resolved as of December 15, 1995. 10 5. Discussion. AA& T notes that it has filed an appeal seeking judicial review of the Commission’s 39 GHz orders. 11 AA& T states that one of the issues in that case is the Commission’s treatment regarding the “the rights of applicants to resolve mutual exclusivity conflicts that existed after December 15, 1995.” 12 AA& T argues that, given the pendency of an appeal raising issues determinative to the resolution of its application, the application should be reinstated or, in the alternative, the dismissal should be stayed. 13 AA& T contends that granting the requested relief would serve the public interest, convenience and necessity by “eliminating the need for additional duplicative litigation” and helping to “remove uncertainties as to the availability of the subject frequency assignments with respect to the contemplated competitive bidding process.” 14 6. To receive a stay of an administrative action, a party must show that: 1) it will suffer irreparable harm if the stay is not granted, 2) it is likely to prevail on the merits of its appeal, 3) the grant of a stay will not harm other interested parties, and 4) the grant would serve the public interest. 15 As the Wireless Telecommunications Bureau (Bureau) explained in a recent Order denying a motion for stay of 6 See Amendment of the Commission’s Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, Report and Order and Second Notice of Proposed Rulemaking, ET Docket No. 95- 183, 12 FCC Rcd 18600, 18605 ¶ 3 (1997) (Report and Order and Second NPRM). 7 Amendment of the Commission’s Rules Regarding the 37.0- 38.6 GHz and 38.6- 40.0 GHz Bands, Memorandum Opinion and Order, ET Docket No. 95- 183, 14 FCC Rcd 12428, 12440- 12448 ¶ 37 (1999) (July 29 MO& O). 8 Id. at 12450- 12452 ¶ 44. 9 Dismissal Letter at 1. 10 Id. 11 See Bachow Communications, Inc. v. FCC, Case No. 99- 1346 (consolidating Case Nos. 99- 1361 and 99- 1362) (D. C. Cir. 1999). 12 Request at 2. 13 Id. 14 Id. 15 See Virginia Petroleum Jobbers Association v. FPC, 259 F. 2d 291 (D. C. Cir. 1958) (Virginia Petroleum), as revised by Washington Metropolitan Area Transit System v. Holiday Tours, Inc., 559 F. 2d 841 (D. C. Cir. 1977). 2 Federal Communications Commission DA 00- 795 3 dismissals in the 39 GHz band, a vague assertion of irreparable harm is insufficient to justify injunctive relief, as is fails to demonstrate an injury that is “certain and great. . . not theoretical.” 16 We are not persuaded that the types of injuries AA& T mentions are sufficient to warrant a stay. Anticipated economic loss “does not, in and of itself, constitute irreparable harm.” 17 Likewise, AA& T has not demonstrated that the purported harm is irreparable. In this connection, we note that if it was to prevail in its judicial appeal of the Commission’s order regarding the dismissal of the subject application, we anticipate that such relief would address the ultimate disposition of the application. 18 Therefore, we find that AA& T has not shown any injury warranting a stay. 19 7. In addition, we find AA& T’s alternate request that we reinstate its application until its judicial appeal is resolved effectively to be a restatement of its request for a stay, so we deny that request, as well. Moreover, reinstating AA& T’s application would frustrate the goals underlying this proceeding and “could lead to results inconsistent with our intent . . . to update the regulatory structure of the 39 GHz band in light of contemporary market conditions.” 20 Further, we believe that the Bureau addressed this matter in its November 23, 1999, decision. 8. Accordingly, IT IS ORDERED that, pursuant to Sections 154( i) and 405 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), 405, and Sections 1.41 and 1.106 of the Commission’s Rules, 47 C. F. R. §§ 1.41, 1.106, the Request for Reinstatement Nunc Pro Tunc and/ or Stay of Processing Action for File Number 9600083 filed on February 4, 2000, by AA& T Wireless Services IS DENIED. 9. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission’s Rules, 47 C. F. R. §§ 0.131, 0.331. FEDERAL COMMUNICATIONS COMMISSION D’wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau 16 Amendment of the Commission’s Rules Regarding the 37.0– 38.6 GHz and 38.6– 40.0 GHz Bands, Order, ET Docket No. 95- 183, RM- 8553, DA 99- 2632, ¶ 2 (WTB rel. Nov. 23, 1999) (citation omitted). 17 Wisconsin Gas Co. v. FERC, 758 F. 2d 669, 674 (D. C. Cir. 1985) (Wisconsin Gas); see also Virginia Petroleum, 259 F. 2d at 925 (“ mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough”). 18 See 47 U. S. C. § 402( h). 19 Where, as here, petitioner fails to show that it will suffer irreparable harm in the absence of injunctive relief, we need not consider the other requirements for a stay. Wisconsin Gas, 758 F. 2d at 674. 20 July 29 MO& O, 14 FCC Rcd at 12437- 38; Report and Order and Second NPRM, 12 FCC Rcd at 2917 ¶ 15; NPRM and Order, 11 FCC Rcd at 4988- 89 ¶¶ 121- 124. 3