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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In re Applications of           )
                                )
ABC Wireless, L.L.C.            )       File No. 0000012954
(Markets B052, B273, B338, and B423))
                                )
and                             )       
                                )
ComScape Communications, Inc.   )       File No. 0000012971
(Market B474)                   )       


                                 
                             ORDER


   Adopted:  September 8, 1999          Released:  September 8, 1999

By the Chief, Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau:

     1.   In this Order, we dismiss SouthEast Telephone, Inc.'s (SouthEast) Petition to Hold in
Abeyance (Petition) the above-captioned long form applications (FCC Form 601) filed by ABC Wireless,
L.L.C. (ABC Wireless) and ComScape Communications, Inc. (ComScape), winning bidders in Auction 22,
the C, D, E and F block broadband PCS license auction that closed on April 15, 1999 (Auction 22).  SouthEast
argues that because of its claims against the Commission pending in the U.S. Court of Appeals for the District
of Columbia Circuit (Court of Appeals), the Commission lacks jurisdiction over the subject licenses.  For the
reasons set forth below, we dismiss the Petition.

     2.   SouthEast was the winning bidder for the above-captioned markets in the original C block
auction, which closed on May 6, 1996.  On October 26, 1998, three days before an installment payment was
due, SouthEast filed a request for suspension or waiver of the Commission's default rules and a sixty day
payment extension.  On October 28, 1998, SouthEast filed an Emergency Motion with the Court of Appeals
to require the Commission to suspend its default rules, which the Court of Appeals denied.  On October 29,
1998, SouthEast filed a complaint against the Commission with the U.S. District Court for the Eastern District
of Kentucky (District Court), alleging that the Commission had breached its contract with SouthEast
concerning the terms for its PCS license payments and seeking an injunction to prevent cancellation of its
licenses as a result of its default.  The District Court granted SouthEast a temporary restraining order (TRO)
to prevent the Commission from canceling its licenses.  On October 30, 1998, the Commission filed a motion
and memorandum in support of the dissolution of the TRO, which the District Court granted on November 5,
1998, in addition to dismissing the case for lack of jurisdiction.  On December 31, 1998, SouthEast appealed
the dismissal to the U.S. Court of Appeals for the Sixth Circuit.  The appeal is currently pending.

     3.   On October 29, 1998, the Commission released an Order denying SouthEast's October 26
waiver request.  On November 4, 1998, SouthEast filed a Petition for Reconsideration and Stay Request,
requesting the Commission to stay its default rules and the Waiver Order pending review of its Petition for
Reconsideration.  On November 12, 1998, the Commission released a public notice announcing that
SouthEast's licenses would be included in the inventory of Auction 22.  On November 20, 1998, SouthEast
once again sought equitable relief from the Court of Appeals, which the court denied.  On March 11, 1999,
SouthEast filed a Request for Stay or, In the Alternative, for Withdrawal of Markets from Relicensing Process,
requesting that the Commission stay Auction 22 and/or withdraw SouthEast's markets from the Auction 22
inventory (Auction Stay Request).  On April 2, 1999, the Commission denied SouthEast's Petition for
Reconsideration and Stay Request and its Auction Stay Request.  On April 20, 1999, ABC Wireless and
ComScape were announced as the winning bidders for the above-captioned markets.  On April 30, 1999,
SouthEast appealed the SouthEast MO&O to the Court of Appeals.  That appeal remains pending.  On June
3, 1999, SouthEast filed its Petition.


     4.   SouthEast argues that upon the filing of its appeal of the SouthEast MO&O with the Court
of Appeals, the Court of Appeals assumed jurisdiction over its licenses and the Commission therefore lacks
the authority to award these licenses to third parties.  According to SouthEast, the underlying principles of
FCC v. Pottsville suggest that the Commission does not have the power to decide a legal question that is
pending judicial review.  Thus, SouthEast argues, it is improper for the Commission to determine who is
entitled to the above-captioned licenses while that same issue is pending appellate review, and the Commission
must hold the applications in abeyance until SouthEast's pending appeal is resolved.

     5.   We need not consider here the import of FCC v. Pottsville, because in any event SouthEast
is in error when it contends that, by acting on ABC Wireless's and ComScape's applications, we will be
deciding the same issue that is pending appellate review.  The issue before the Commission is whether ABC
Wireless and ComScape are eligible to hold C block licenses pursuant to section 24.709 of the Commission's
rules.  The Court of Appeals, on the other hand, is considering the merits of SouthEast's Petition for
Reconsideration and Stay Request and its Auction Stay Request, which focus on the issue of SouthEast's
request for waiver of the Commission's default rules.  Thus, we reject SouthEast's argument that we lack
jurisdiction to act on ABC Wireless's and ComScape's long form applications.

     6.   ABC Wireless argues that any harm to SouthEast as a result of a grant of its long form
application is speculative and that the Commission should proceed with the grant of the licenses.  The
Wireless Telecommunications Bureau (Bureau) has previously indicated that the grant of any auctioned
licenses involved in a pending proceeding will be conditioned on the outcome of such pending proceeding. 
SouthEast asks that we hold the above-captioned applications in abeyance until a pending proceeding is
resolved.  By protecting any claim SouthEast may have in connection with the above-captioned licenses, the
procedure announced by the Bureau in its December 23 Public Notice achieves the result sought by SouthEast,
and we therefore dismiss its request as moot.

     7.    Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the Communications Act of
1934, as amended, 47 U.S.C.  154(i), and sections 0.331, 1.2108, and 24.830 of the Commission's rules, 47
C.F.R.  0.331, 1.2108, and 24.830, the Petition to Hold in Abeyance filed by SouthEast Telephone, Inc.,
on June 3, 1999, in the above-referenced proceedings, IS HEREBY DISMISSED.

     
     

                              FEDERAL COMMUNICATIONS COMMISSION



                              Paul D'Ari
                              Chief, Policy and Rules Branch
                              Commercial Wireless Division
                              Wireless Telecommunications Bureau