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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#Y'p #FxX  Pg9CXP#referenceZ;#FxX  Pg9CXP#2p[~,l\im] o^ pitemizeX1[&V 8F ` hp xr#FxX  Pg9CXP#header2\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@#2\q^4Zoty.X80,>X\  P6G;P7jC:,_ Xj\  P6G;XP@|ND,i|\  P6G;P@ND,ɼ4  pG;7nC:,RXn4  pG;X\5hC:,%HXh*f9 xr G;XX W!@(#,ޡh@\  P6G;hP!H5!,,5\  P6G;,P\{,W80,%)bW*f9 xr G;XgH0       $// Order, sPetitions to DenyAdvanced MobileComm & Digital Spread Spectrum, DA 951412//$  s $/ 309(d)(2) Action Upon Applications/$ s   s  !)RECORD ONLY s ԃ )DA 951412X(#P  aH<+#p\  PCiP# Before the  aR< FEDERAL COMMUNICATIONS COMMISSION #o\  PC_ XP#  X\ -Washington, D.C. 20554 ĐTP #o\  PC_ XP#  X -In the Matter of  hh @ ) x` `  hh@ )  X -Application of Wireless Co., L.P.hh@ )  X-for a License to Providehh@ )hppFile No. 00005CWL95  X-Broadband PCS Service on Block A@ )hppCall Sign KLNF 208  X-in the San Francisco Major Trading@ )  X-Area (M004)` `  hh@ ) x` `  hh@ )  X_-Application of Pacific Telesis Mobile@ )  XH-Services for a License to Providehh@ )hppFile No. 00006CWL95  X1-Broadband PCS Service on Block B@ )hppCall Sign KLNF 209  X-in the San Francisco Major Trading@ )  X-Area (M005)` `  hh@ ) x` `  hh@ )  X-Application of AT&T Wireless PCS@ )  X-for a License to Providehh@ )hppFile No. 00013CWL95  X-Broadband PCS Service on Block A@ )hppCall Sign KLNF 216  X-in the Boston Major Tradinghh@ )  Xy-Area (M008)` `  hh@ ) x` `  hh@ )  XK-Application of WirelessCo, L.P. @ )  X4-for a License to Providehh@ )hppFile No. 00014CWL95  X -Broadband PCS Service on Block B @ )hppCall Sign KLNF 217  X!-in the Boston Major Trading @ )h  X!-Area (M008)` `   @ ) x` `  hh@  X#-; ORDER  X%- xAdopted: June 23, 1995hh@ hppReleased: June 23, 1995  Xe'-By the Chief, Wireless Telecommunications Bureau:  X7)- MI. INTRODUCTION"7)0*0*0*("Ԍ"7)0*0*0*("Ԍ X7)- x1. By this Order, we resolve Petitions to Deny filed on May 12, 1995 by Advanced"7)0*0*0*(" MobileComm Technologies (AMT) and Digital Spread Spectrum Technologies (DSST)"9)0*0*0*(" (jointly "Petitioners") against broadband personal communications service (PCS) applications"9)0*0*0*(" filed for the A and B block licenses in the San Francisco and Boston Major Trading Areas"9)0*0*0*("  X-(MTAs).F yOy-ԍ AMT and DSST have filed identical petitions against WirelessCo., L.P. (WirelessCo) for the San Francisco A block MTA (San Francisco A Block Petition), Pacific Telesis Mobile Services (PacTel) for the San Francisco B block MTA (San Francisco B Block Petition), AT&T Wireless PCS (AT&T Wireless) for the Boston A block MTA (Boston A Block Petition), and WirelessCo for the Boston B block MTA (Boston B Block Petition).  {O-Because the issues raised in each petition are identical, we address them jointly in this Order.F The applications were filed by WirelessCo (San Francisco A block and Boston B block), PacTel (San Francisco B block), and AT&T Wireless (Boston A block), the high bidders for these markets in the A and B block broadband PCS auctions. For the reasons discussed below, we deny AMT and DSST's petitions and grant the applications filed by WirelessCo, PacTel, and AT&T Wireless.  Xv- II. CONTENTIONS OF THE PARTIES  XH- x2. On May 12, 1995, AMT and DSST jointly petitioned the Commission to dismiss, deny, or defer applications for the San Francisco and Boston MTA licenses. AMT and DSST allege that this action is needed until pending litigation addressing their pioneer's preference  X -requests for these markets is resolved. z yO.-ԍ AMT and DSST filed pioneer's preference requests to construct and operate a PCS system to serve the  {O-San Francisco and Boston MTAs, respectively. See Request of AMT and DSST for a Pioneer's Preference, GN Docket No. 90314, PP42 (filed May 1, 1992) (AMT and DSST Request). AMT and DSST argued they should be awarded a pioneer's preference license for the spectrallyefficient PCS architecture they developed using Synchronous Code Division Multiple Access (SCDMA), Frequency Division Multiple Access (FDMA) and  {O-Time Division Duplexing (TDD) technology in a microcellular architecture. Id.Į This litigation stems from the Commission's tentative denial of Petitioners' pioneer's preference requests in 1992 and subsequent affirmation of its  X -decision in 1994.L  {O|-ԍ Amendment of the Commission's Rules to Establish New Personal Communications Services, Tentative  {OF-Decision, 7 FCC Rcd 7794, 7807 (1992) at  30; Amendment of the Commission's Rules to Establish New  {O-Personal Communications Services, Third Report and Order, 9 FCC Rcd 1337, 135859 at  15966, recon., 9  {O-FCC Rcd 7805, 780708 at  814 (1994) (Pioneer's Preference Reconsideration Order) (affirming denial of pioneer's preference to AMT and DSST).L Petitioners' appeal of the Pioneer's Preference Reconsideration Order has been consolidated with a number of other cases and is pending before the United States Court  X -of Appeals for the District of Columbia Circuit.  {O-ԍ See Advanced MobileComm Technologies, Inc., et al. v. FCC, No. 951060 (D.C. Cir. appeal docketed  yO-Jan. 23, 1995). These consolidated cases have been held in abeyance pending the decision in American Personal  yO -Communications v. FCC, No. 951185 (D.C. Cir. Mar. 30, 1995), which challenges the constitutionality of Section 801 of the Uruguay Round Agreements Act of 1994, Pub. L. No. 103465, 103d Cong., 2d Sess. (1994) (GATT Act).  X{-x3. In their petitions to deny, AMT and DSST argue that the pending appeal of the  Xd-Pioneer's Preference Reconsideration Order possibly could result in awards to them of the A"d`0*((J"  X-block licenses in the Boston and San Francisco MTAs. yOy-ԍ San Francisco A Block Petition at 4; San Francisco B Block Petition at 4; Boston A Block Petition at 4; Boston B Block Petition at 4. While AMT and DSST recognize that the Commission previously has conditioned licenses on the outcome of pending litigation,  X-they contend that this remedy would be inadequate here.  yO-ԍ San Francisco A Block Petition at 5; San Francisco B Block Petition at 56; Boston A Block Petition at 5; Boston B Block Petition at 56. Accordingly, they ask that the Commission not license the A block auction winners in these markets. They argue that the infrastructures that would be built by WirelessCo and AT&T Wireless would be of no use to  X-them should they ultimately be awarded the A block licenses.x yO -ԍ San Francisco A Block Petition at 56; San Francisco B Block Petition at 56; Boston A Block Petition at 56; Boston B Block Petition at 56. They further contend that in the event they are awarded the A block licenses, WirelessCo and AT&T Wireless should have  X_-the opportunity to rebid for the remaining B block licenses._ yO-ԍ San Francisco A Block Petition at 67; San Francisco B Block Petition at 7; Boston A Block Petition at 67; Boston B Block Petition at 7. To ensure that these licenses are  XH-available in this eventuality, Petitioners request that the Commission not award the San  X1-Francisco and Boston B block licenses. 1(  yO -ԍ San Francisco A Block Petition at 7; San Francisco B Block Petition at 8; Boston A Block Petition at 7; Boston B Block Petition at 8.  X -x4. WirelessCo, PacTel, and AT&T Wireless filed timely oppositions to AMT and  X -DSST's Petitions to Deny on May 25, 1995. X  yO-ԍ WirelessCo Opposition to Joint Petitions to Dismiss, Deny or Defer (filed May 25, 1995) (WirelessCo  yO-Opposition); PacTel Opposition to Petitions to Deny (filed May 25, 1995) (PacTel Opposition); AT&T Wireless  yO-Opposition to Joint Petitions to Dismiss or Deny (filed May 25, 1995) (AT&T Wireless Opposition). WirelessCo maintains that Petitioners lack standing because they did not participate in the auction and therefore have no tangible claim  X -to the licenses.I  yO-ԍ WirelessCo's Opposition at 49.I Moreover, WirelessCo observes that Petitioners fail to allege why grant of  X -their applications would be prima facie inconsistent with the public interest.< 0 {O -ԍ Id. at 912.< Finally,  X-WirelessCo alleges that Petitioners' alternate request for stay is procedurally defective.=  {O#-ԍ Id. at 1215.= PacTel agrees that Petitioners' claim to the licenses is speculative, based on the unlikely  Xd-possibility that Petitioners would be successful on appeal.CdT yOi&-ԍ PacTel Opposition at 67.C PacTel further observes that even if Petitioners are successful, they fail to demonstrate how granting the B block license for the"M0*(("  X-San Francisco MTA is inconsistent with the public interest.; {Oy-ԍ Id. at 78.; Rather, PacTel maintains that  X-the public interest would be served by the prompt introduction of PCS services.;Z {O-ԍ Id. at 89.; AT&T Wireless urges the Commission to deny the Joint Petition filed against their application on grounds that Petitioners fail to demonstrate that AT&T Wireless is unqualified to hold the  X-license or that there is some other legitimate basis for denying the application.J yOA -ԍ AT&T Wireless Opposition at 34.J AT&T Wireless further observes that the Joint Petition does not satisfy the criteria required for stay  Xv-of the license grants.;v| {O -ԍ Id. at 47.;  XH-x5. On June 7, 1995, AMT and DSST filed a reply to WirelessCo's opposition.H yO-ԍ Joint Reply of AMT and DSST to the Opposition of WirelessCo (filed June 7, 1995) (AMT/DSST Joint Reply). Petitioners dispute WirelessCo's assertion that they lack standing, alleging that they would be directly harmed if the A block applications for the San Francisco and Boston MTAs were granted. Petitioners maintain they would be harmed because, should they ultimately obtain a pioneer's preference as a result of their appeal, their ability to introduce PCS service quickly  X -would be thwarted if the license had already been granted to another party.9 f  {O-ԍ Id. at 2.9 Moreover, Petitioners argue that the public interest would not be served by granting the licenses because  X -the outcome of the litigation is uncertain.3  {OP-ԍ Id.3 Petitioners therefore urge the Commission to exercise the flexibility afforded by the Communications Act and delay licensing the A and B  Xy-block licenses for the San Francisco and Boston MTAs.;y  {O-ԍ Id. at 23.;  XK- III. DISCUSSION ă  X-x6. The Commission's Rules provide that a petition to deny must "[c]ontain specific allegations of fact ... sufficient to demonstrate that the petitioner is a party in interest and that  X-grant of, or Commission action regarding, the application would be prima facie inconsistent  X-with the public interest."F yO%-ԍ 47 C.F.R.  24.830(a)(3).F As discussed below, petitioners fail to satisfy either criteria. Accordingly, their petitions to deny or dismiss the applications for the A and B block licenses in the San Francisco and Boston MTAs are denied. Additionally, we deny Petitioners'"0*(("  X-alternative request to defer licensing until pending litigation regarding the Pioneer's  X-Preferences Reconsideration Order is resolved.  X-xA. Standing  X-x7. Only a party in interest has standing to protest an application before the  Xz-Commission.cz {O-ԍ Id.; see also 47 U.S.C.  309(d)(1).c To establish party in interest standing, petitioners must allege facts sufficient to demonstrate that grant of the subject application would cause them to suffer a direct  XL-injury.HLZ {OW -ԍ Sierra Club v. Morton, 405 U.S. 727, 733 (1972); see Lawrence N. Brandt, 3 FCC Rcd 4082 (1988)  {O! -(Brandt); National Broadcasting Co., 37 FCC 2d 897, 898 (1972); see also MartinTrigona v. FCC, 432 F.2d 682 (D. C. Cir. 1970). Claims amounting to a "remote" or "speculative" injury are insufficient to confer standing.  {O -See Application of KIRV Radio, 50 F.C.C. 2d 1010 (1975) (stating that "the claim of potential economic injury by a mere applicant for a broadcast facility is too remote and speculative to show standing as a `party in  {OE-interest'"); see also Application of MelEau Broadcasting Corp. and WMEG, Inc. for Assignment of the License of Radio Station WMEG, EauGallie, Fla., 10 F.C.C. 2d 537 (1967); Application of Butte County Cellular License Corp., 8 FCC Rcd 7894 (1993). In addition, petitioners must demonstrate a causal link "between the claimed injury  X5-and the challenged action."a\5j  {OP-ԍ See, e.g., Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 78 (1978)  {O-(Duke); Brandt, 3 FCC Rcd at 4082; see also Matter of Warren Ache, 9 FCC Rcd 2464, 2467 (1993); Application of MCI for Transfer of Control, 10 FCC Rcd 1072 (1994).a To demonstrate a causal link, petitioners must establish that:  X -(1) "these injuries fairly can be traced to the challenged action;"  {O]-č Duke, 438 U.S. at 74; see also Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 38, 41  {O'-(1976) (Simon); Brandt, 3 FCC Rcd at 4082. and (2) "the injury would  X -be prevented or redressed by the relief requested."  {O-ԍ Duke, 438 U.S. at 81; see also Simon, 426 U.S. at 39; Brandt, 3 FCC Rcd at 4082. x8. We find the facts alleged by Petitioners to be insufficient to confer standing. Petitioners' claim to the Boston and San Francisco A block licenses is based on a lawsuit appealing the Commission's denial of their pioneer's preference requests. Petitioners allege that they would be harmed by grant of the licenses in question to the auction winners should Petitioners ultimately be awarded the licenses. Based on these facts, we find that Petitioners have not alleged an "injury in fact" fairly traceable to the grant of the challenged licenses. First, the alleged injury is contingent on Petitioners winning their judicial appeal. Even if Petitioners are successful, the alleged injury also presumes that the Commission would be persuaded on remand to award Petitioners a pioneer's preference license. An allegation of  X -injury based on these hypothetical events is too remote and speculative to confer standing. | {O7&-ԍ See In re Authorization of Conn2 RSA Partnership et al., 9 FCC Rcd 3295 (1994). "0*(("Ԍ X-x9. Moreover, even if Petitioners' appeal is successful, they cannot demonstrate any injury traceable to the grant of the licenses. Petitioners themselves acknowledge that "license grants which are challenged by litigation are subject to that litigation and may be undone if  X-the basis of the grant is reversed as a result of the outcome of the litigation." yO4-ԍ San Francisco A Block Petition at 4; San Francisco B Block Petition at 45; Boston A Block Petition at  {O-4; and Boston B Block Petition at 45. See Sunde Cellular Communications, Inc., et al., 8 FCC Rcd 502, 504  {O-(1993) (citing Alianza Federal de Mercedes v. FCC, 539 F.2d 732, 736 (D. C. Cir. 1976). See also CCI RSA,  {O-Inc., 8 FCC Rcd 1183 (1993); A.S.D. Answer Service, Inc., 1 FCC Rcd 753 (1986); Advanced Mobile Phone  yOZ-Service, Inc., 91 FCC 2d. 512 (1982). Thus, in the unlikely event that Petitioners win their appeal, the Commission could elect to rescind the A block licenses and award them to petitioners. Any costs associated with transferring the  Xv-licenses would be borne by the licensees and not by petitioners.Xv~ yO -ԍ We note that WirelessCo and AT&T Wireless purchased the A block licenses with full knowledge that those licenses were the subject of pending litigation. These companies presumably adjusted their bids to reflect the risk they were assuming. In short, there is no logical nexus between the alleged injury and the grant of the A block licenses. Petitioners' challenge to the B block licenses is even more remote, in that it is intended to redress a hypothetical and contingent injury to the A block applicants, not Petitioners, in the event that Petitioners win their appeal. Such allegations are not even remotely sufficient to confer standing on Petitioners to challenge any of the petitioned applications.  X -xB. Public Interest Analysis  X -x 10. While we have sufficient reason to dismiss AMT and DSST's petitions for lack of standing, we also find their substantive allegations are without merit. Under Section 309(d)(1) of the Communications Act, parties filing a petition to deny must make specific  Xb-allegations of fact sufficient to show that a grant of the application would be prima facie  XM-inconsistent with the public interest, convenience, and necessity. M {O-ԍ Astroline Comm. Co. L.P. v. FCC, 857, F.2d 1556, 1561 (D.C. Cir. 1988), quoting 47 U.S.C.  309(d)(1). Based on the pleadings  X6-and supporting materials before us, we find that petitioners have not met this standard and we thereby deny their petitions. Petitioners do not allege, much less demonstrate, that any of the applicants have engaged in misconduct or are otherwise unqualified to provide broadband PCS service. In fact, Petitioners concede that each of the applicants is "wellqualified to  X-construct and operate broadband PCS systems."l!0  yO!-ԍ San Francisco B Block Petition at 7; Boston B Block Petition at 7.l Rather, Petitioners argue that granting the licenses is inconsistent with the public interest on grounds that the pending litigation puts the winning bidders at risk and that significant resources may be needlessly expended should  X-Petitioners be awarded the licenses on appeal.p"  yO&-ԍ San Francisco B Block Petition at 67; Boston B Block Petition at 67.p "~P "0*((2"Ԍx 11. We see no reason to deny the applications at issue in order to protect the winning PCS applicants in the Boston and San Francisco markets from the risk of "needless expenditures." The assessment of any risks posed by the pioneer's preference litigation can best be made by the applicants themselves. Accordingly, we do not find that the public interest would be served by grant of the petitions to deny. To the contrary, we find that the prompt implementation of PCS service will serve the public interest by offering consumers additional communications choices and providing additional competition to existing cellular services. Accordingly, any delay in the introduction of new competition will harm customers by limiting their choices and will, in all likelihood, result in higher, less competitive prices for wireless services. We are therefore unpersuaded by Petitioners' concerns and believe that the public interest favors rapid introduction of PCS service to the public.  X -xC. Petitioners' Request to Defer Licensing  X -x 12. Petitioners request that if their petitions are denied, the Commission alternatively defer the grant of the San Francisco and Boston licenses. We concur with WirelessCo and AT&T Wireless that the effect of their request is to seek a stay of the license grants. At the outset, we note that any request for stay must be filed as a separate pleading, and that  Xb-Petitioners' request is therefore procedurally defective.A#b yO-ԍ 47 C.F.R.  1.44(e).A  X4-x 13. While we find that petitioners' stay request must be discmissed on account of its procedural deficiencies, we also conclude that petitioners do not meet the standard required for grant of a stay. Specifically, petitioners must establish that: (1) they are likely to succeed on the merits of their appeal; (2) they will suffer irreparable harm if a stay is not granted; (3) other interested parties will not be harmed by a stay; and (4) the public interest favors grant  X-of a stay.$ZX {O-ԍ See, e.g., Wisconsin Gas Co. v. FERC, 758, F.2d 669, 674 (D. C. Cir. 1985) (Wisconsin Gas); see also  yO-Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977);  yO\-Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958). The Commission previously has determined that the cornerstone of our test turns  X-on whether the party requesting a stay will suffer irreparable harm.%$z yO-ԍ In the Matter of Cincinnati Bell Telephone Company Requests for Stay of Orders Finding Violations of  {O-the Commission's Rate of Return Prescriptions, Memorandum Opinion and Order, File Nos. E90042, et al., 8 FCC Rcd 6709 (stating that "the most important of [the] factors is irreparable harm, without which other factors  {O/!-need not be considered"), citing Wisconsin Gas, 758 F.2d at 67374. Accordingly, if a party fails to demonstrate that it will suffer irreparable harm, a stay will not be granted. x 14. We find that Petitioners have failed to make the required showing of irreparable  XN-harm.&Nf  yOe&-ԍ In light of this finding, we do not address the other elements of the standard for granting a stay. Petitioners argue that, because a pioneer licensee is required to implement the technology upon which its preference is based, the "largely inconsistent" infrastructure that"7 &0*((" the A block licensees would construct in the San Francisco and Boston MTAs would be of  X-little use to them.p' yOb-ԍ San Francisco A Block Petition at 56; Boston A Block Petition at 56.p As Petitioners concede, however, this infrastructure investment is a cost that would be borne by the A block applicants, and not by AMT or DSST. Thus, even if petitioners received a pioneer's preference for the San Francisco and Boston A block MTAs after the A block applicants had constructed their systems, petitioners would suffer no harm.  X-Rather, as discussed supra, the A block applicants would bear the risk if petitioners are successful on appeal. Petitioners are therefore unable to demonstrate that they would suffer  Xa-any harm from grant of the licenses, much less irreparable harm that would warrant a stay of the licensing process.  X - |IV. CONCLUSION  X -  X -x15. Having reviewed the application and the pleadings filed in this matter, we conclude that grant of the subject application will serve the public interest, convenience, and necessity, and that the petitioners have not sufficiently alleged facts establishing that grant of the application would be inconsistent with the public interest, convenience, and necessity.  X}- 5V. ORDERING CLAUSES  Xf-  XO-x16. Accordingly, pursuant to our authority under Section 309(d)(2) of the Communications Act of 1934 as amended, 47 U.S.C.  309(d)(2), IT IS ORDERED that the Petitions filed by AMT and DSST against the A and B block applications for the San  X -Francisco and Boston MTAs ARE HEREBY DENIED.( X {O-ԍ The applications are granted by separate Order adopted today. See Application for A and B Block  {O-Broadband PCS Licenses, Order, DA 951411 (Wireless Telecom. Bur., released June 23, 1995). x` `  FEDERAL COMMUNICATIONS COMMISSION x` `  Regina M. Keeney x` `  Chief, Wireless Telecommunications Bureau