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Re: Cellular Telecommunications Industry Association et al's Request for Delay of the Auction 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 700 MHz auction beyond the statutorily determined time. Although we have already stated our opposition to that decision,(1) we nonetheless feel compelled to detail our concerns about 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 best serves the public interest."(3) We do not agree.

Congress has spoken as directly and clearly as possible with regard to the timing of the 700 MHz auction: the FCC is to "conduct a competitive bidding process in a manner that ensures that all proceeds of such bidding are deposited . . . not later than September 30, 2000."(4) Despite the difficult circumstances challenging potential bidders in this auction, no "conflicting statutory requirement" can rightly be read into Section 309 of the Communications Act.

The item asserts that adherence to the statutory deadline cannot be reconciled with our charge under Section 309 to ensure that the scheduling of an auction allow "interested parties [to] have a sufficient time to develop business plans, assess market conditions, and evaluate the availability of equipment for the relevant services."(5) The circumstances cited in the item, however, do not suggest that potential bidders lack sufficient time to prepare for auction. The encumbered nature of the spectrum has been well known since Congress first reallocated the spectrum for commercial use in 1997. The Order specifically states that the Commission is prepared to run the auction, and potential bidders have offered no credible operational reason not to move ahead. And a preference to conduct this auction after 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 they were when the deadline was adopted. Nothing has changed; the spectrum remains encumbered.(6)

No "conflicting statutory requirement" exists here and Section 309 should not be interpreted to create such a conflict. The 700 MHz auction poses challenges, but these issues cannot be used to jettison a statutory mandate. In essence, the Order holds that the statutory deadline makes bad policy and now the FCC is going to fix it. We do not believe that 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, Public Notice (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.