WASHINGTON-Following July 30 rulings by two different U.S. appeals courts, the Federal Communications Commission’s D-, E- and F-block broadband personal communications services auctions will start Aug. 26. The application date for bidders was July 31.
Judges Walter Stapleton and Collins Seitz of the U.S. Court of Appeals for the Third Circuit (Philadelphia) issued a one-sentence decision on a petition for stay filed July 16 by National Telecom PCS Inc., the original winner of American Samoa in the C-block auction; that license was re-auctioned with 17 others and was won by Westel L.P., majority-owned by former-PCS 2000 L.P. principal Quentin Breen. Incorporating no flowery language or legalese, the order read simply, “The foregoing motion for a stay of the Report and Order issued by the FCC is denied.”
On the same day, Judges Patricia Wald, Douglas Ginsburg and David Sentelle of the U.S. Court of Appeals of the District of Columbia denied a petition for a writ of mandamus and an emergency stay of the auction filed two weeks ago by the National Paging & Personal Communications Association, Personal Technology Services Inc. and DigiVox Corp.
“Ordered that the petition for writ of mandamus be denied in light of petitioners’ failure adequately to explain their delay in filing the petition for reconsideration and their concession that `it would be impractical to expect that the Commission could act upon the petition for reconsideration before the D-, E- and F-block filing date,’ ” the judges wrote. “It is further ordered that the emergency motion for stay be denied. Petitioners have not satisfied the stringent standards required for issuance of a stay.”
“We’re pleased with both decisions,” said Michele Farquhar, chief of the FCC’s Wireless Telecommunications Bureau. “However, we’re still looking at postponing the auction.” She did admit that such action would be a long shot and that the July 31 filing date “is a complication.” If the commission were to delay the auction, an accompanying decision would have to clarify how submitted applications would be treated, i.e., would they be returned, could they be modified and would any new applicants be frozen out?
The groups that lost their battle against time were stoic about the twin court rulings, and they resigned themselves to regroup and move forward. Jack Robinson, president of NatTel, was readying his applications for markets in all three blocks; PTS also filed early for all markets across the board. Others expressed disappointment but prepared to take advantage of the situation as it stands.
“We gave it the good college try,” said Micheal Walker, NPPCA’s executive director. “We needed to stand firmly for small businesses. These issues won’t go away, and we look forward to working with the FCC on future small-business decisions. We won’t take this fight further. We now have to concentrate on supporting our members who will enter this and future auctions. A lot of our members won’t be successful, but we hope some will be.”
NPPCA attorney Eliot Greenwald told RCR that it was “unfortunate” that a stay was not granted and that “the FCC probably won’t rule on our petition for reconsideration until well-into the auction process, which will make it meaningless.”
