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Re: Cellular Telecommunications Industry Association et al's Request for Delay of theAuction of Licenses in the 747-762 and 777-792 MHz Bands Scheduled for September 6,2000 (Auction No. 31) (rel. September 12, 2000)

Today's Order provides the majority's rationale for the further delay of the 700MHz auction beyond the statutorily determined time. Although we have already statedour opposition to that decision,(1) we nonetheless feel compelled to detail our concernsabout the rationale advanced in the item.

The item asserts that "we face conflicting statutory requirements" and that"Congress ha[s] [not] spoken directly to the issue."(2) As a result, it concludes,"postponing the auction appropriately balances our responsibilities in a manner that bestserves the public interest."(3) We do not agree.

Congress has spoken as directly and clearly as possible with regard to the timing ofthe 700 MHz auction: the FCC is to "conduct a competitive bidding process in a mannerthat ensures that all proceeds of such bidding are deposited . . . not later than September30, 2000."(4) Despite the difficult circumstances challenging potential bidders in thisauction, no "conflicting statutory requirement" can rightly be read into Section 309 of theCommunications Act.

The item asserts that adherence to the statutory deadline cannot be reconciled withour charge under Section 309 to ensure that the scheduling of an auction allow "interestedparties [to] have a sufficient time to develop business plans, assess market conditions, andevaluate the availability of equipment for the relevant services."(5) The circumstances citedin the item, however, do not suggest that potential bidders lack sufficient time to preparefor auction. The encumbered nature of the spectrum has been well known since Congressfirst reallocated the spectrum for commercial use in 1997. The Order specifically statesthat the Commission is prepared to run the auction, and potential bidders have offered nocredible operational reason not to move ahead. And a preference to conduct this auctionafter the C and F block reauction cannot be used to manufacture a conflict in the statute. Most importantly, the essential facts regarding this auction are the same today as theywere when the deadline was adopted. Nothing has changed; the spectrum remainsencumbered.(6)

No "conflicting statutory requirement" exists here and Section 309 should not beinterpreted to create such a conflict. The 700 MHz auction poses challenges, but theseissues cannot be used to jettison a statutory mandate. In essence, the Order holds that thestatutory deadline makes bad policy and now the FCC is going to fix it. We do not believethat this is, or should be, our role.

1    Dissenting Statement Of Commissioners Harold Furchtgott-Roth And Gloria Tristani, Re:Auction of Licenses for the 747-762 and 777-792 MHz Bands Postponed Until March 6, 2001, PublicNotice (rel. July 31, 2000).

2    Order at 6-7.

3     Id. at 11.

4     Consolidated Appropriations Act 2000, Pub. L. No. 106-113, 113 Stat. 2502, Appendix E, Sec.213.

5    47 U.S.C. 309(j)(3)(E)(ii).

6     Nor are these essential facts likely to change between now and the newly delayed auction date.