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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
(Market B190-Hilo, Hawaii)      )
                                )
and                             )       
                                )
American Wireless, L.L.C.       )       File No. 0000012939
(Market B192-Honolulu, Hawaii)  )       


                                 
                             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 Gloria Borland Hawaii PCS, Inc.'s (Borland) Petitions to Deny
(Petitions) the above-captioned long form applications (FCC Form 601) filed by ABC Wireless, L.L.C. (ABC
Wireless) and American Wireless, L.L.C. (American Wireless), winning bidders in Auction 22, the C, D, E
and F block broadband PCS license auction that closed on April 15, 1999 (Auction 22).  Borland, an alleged
five percent owner of the C block PCS licensee DCR PCS, Inc. (DCR PCS), argues that grant of the licenses
to ABC Wireless and American Wireless would not be in the public interest until Borland's outstanding claims
against the Commission are resolved.  For the reasons set forth below, we dismiss the Petitions.

     2.   The Commission granted DCR PCS two C block licenses for the above-captioned markets on
November 4, 1996.  These two licenses were among 43 C block licenses that DCR PCS obtained at that time. 
On March 31, 1997, DCR PCS and its parent company, Pocket Communications, Inc., filed for protection
under Chapter 11 of the Bankruptcy Code, 11 U.S.C.  101 et seq., in the United States Bankruptcy Court for
the Northern District of Maryland.  During the bankruptcy proceeding, DCR PCS elected, under the C Block
Restructuring Orders, to exercise its right to return a majority of the 43 licenses to the Commission, including
the two Hawaii licenses at issue here.  The DCR PCS elections were approved by the bankruptcy court.  

     3.   On December 21, 1998, Borland filed an Application for Review of the Wireless
Telecommunications Bureau's (Bureau) decision to include the C block licenses for the Hilo and Honolulu,
Hawaii markets in Auction 22.  Borland argued that the Hawaii licenses should not be included in the
inventory for Auction 22, alleging that (1) it owns a five percent interest in the DCR PCS licenses; and (2)
representations made by Commission staff created a contract allowing it to purchase the Hawaii licenses. 
It further argued that the failure to remove the licenses would result in the award of the licenses to a third party,
thus precluding review of the issues in the Application for Review on the merits and compounding the damage
to Borland.  On March 4, 1999, Borland filed a Petition for Extraordinary Relief, requesting that the
Commission act on the Application for Review.  On April 5, 1999, the Commission released an Order denying
Borland's Application for Review and related Petition for Extraordinary Relief.  On May 4, 1999, Borland
filed a Petition for Review of the Commission's Order (Petition for Review) with the United States Court of
Appeals for the D.C. Circuit (Court).  The Petition for Review remains pending.  On May 5, 1999, ABC
Wireless and American Wireless, the winning bidders for the Hilo and Honolulu, Hawaii markets, respectively,
filed their long form applications.  On June 3, 1999, Borland filed its Petitions.

     4.   We find that Borland lacks standing to file a petition to deny against the above-captioned
applications.  Section 309(d)(1) of the Communications Act, as amended, permits any "party in interest" to file
a petition to deny any application.  To establish standing, a petitioner must allege sufficient facts to
demonstrate that grant of the subject application would cause the petitioner to suffer a direct injury.  The
petition must further demonstrate a causal link between the claimed injury and the challenged action.  In the
Bureau's December 23 Public Notice, the Bureau stated that in situations in which auctioned licenses are
involved in a pending proceeding, such licenses will be granted at the close of the auction in order to serve the
public interest in prompt implementation of PCS service and that the grant of such licenses will be conditioned
on the outcome of pending proceedings.  Accordingly, the grant of the licenses to ABC Wireless and
American Wireless will be conditioned upon the outcome of Borland's pending Petition for Review.  Any claim
Borland may have on the licenses will be protected by this condition placed on the grants.  Therefore, because
Borland will not suffer a direct injury by the conditional grants of the licenses to ABC Wireless and American
Wireless, it lacks standing to bring the instant Petitions.

     5.   Even if we were to assume that Borland has standing, its Petitions must be denied on the
merits.  Borland argues that because its outstanding claims against the Commission are not resolved, grant of
the long form applications will create conflicting claims for the licenses and is therefore inconsistent with the
public interest.  Borland also contends that delays resulting from competing claims over the PCS licenses will
complicate financing, construction and build-out of the licenses, which, in turn, will impair competition in the
Hilo and Honolulu, Hawaii markets.  Finally, Borland argues that the Commission's failure to protect and
respect its interests as a party to the Pocket bankruptcy case violates LaRose v. FCC, in which the D.C.
Circuit recognized that the Commission has a public interest duty to protect innocent creditors.

     6.   In response, ABC Wireless and American Wireless argue that the Commission has already
ruled on Borland's claim.  American Wireless argues that because the Commission has already denied Borland's
Application for Review and Petition for Extraordinary Relief regarding the Commission's decision to include
the licenses in Auction 22, the Commission has already ruled on Borland's claim to the licenses.  American
Wireless further contends that the fact that Borland has filed suit against the Commission has no effect on the
Commission's decision.

     7.   As discussed above, the 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. 
In a February 24 Public Notice, the Bureau advised auction participants that, in formulating their business
strategies, they must take into account the risk that a pending proceeding might ultimately displace a winning
bidder.  Thus, all parties were on notice that the grant of certain licenses would be conditioned upon the
outcome of pending proceedings.  In light of the fact that any claim Borland may have in connection with the
above-captioned licenses will be protected under a grant conditioned on the outcome of pending proceedings,
we see no need to depart from the procedure announced by the Bureau in its December 23 Public Notice, and
we find that it is in the public interest to conditionally grant the licenses to ABC Wireless and American
Wireless.

     8.    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 Petitions to Deny filed by Gloria Borland Hawaii PCS, Inc., on June
3, 1999, in the above-referenced proceedings, ARE HEREBY DISMISSED.

     
     

                              FEDERAL COMMUNICATIONS COMMISSION



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