**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| 21^st^ Century Telesis Inc.      | ) |                              |
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| Request for Partial              | * |                              |
| Reconsideration of               |   |                              |
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| Public Notice DA 00-2038         | * |                              |
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| Request for Stay                 | * |                              |
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**ORDER**

**Adopted:** December 20, 2000 **Released:** December 21, 2000

By the Deputy Chief, Wireless Telecommunications Bureau:

**I. Introduction**

I.  1\. We have before us a Request for Stay filed by 21^st^ Century
    Telesis, Inc ("21^st^ Century") [^1] of the Auctions and Industry
    Analysis Division's ("Division") decision denying 21^st^ Century's
    request for waiver of the Commission's installment payment rule.[^2]
    The Request for Stay also seeks to stay Auction No. 35 with respect
    to spectrum on which 21^st^ Century was formerly licensed to
    operate. In addition, we have before us a Petition for Partial
    Reconsideration ("Petition")[^3] of two public notices released by
    the Wireless Telecommunications Bureau ("Bureau") on September 6,
    2000 and September 12, 2000, which set forth the list of C and F
    block PCS licenses available in Auction No. 35.[^4] For the reasons
    set forth below, we deny both the Request for Stay and the Petition.

    **II. Background**

2\. 21^st^ Century was the high bidder on 27 licenses in the broadband
PCS C and F block auctions that concluded in 1996 and 1997.[^5] Nineteen
of 21^st^ Century's licenses automatically cancelled on January 28,
2000, following its failure to timely submit its July 1999 installment
payments for the licenses.[^6] The Division's *August 7^th^ Decision*
denied 21^st^ Century's request for waiver of the installment payment
rule.[^7] On September 6, 2000, 21^st^ Century filed a Petition for
Reconsideration of the *August 7^th^ Decision*.[^8] On the same day, the
Bureau released the *September 6^th^ Public Notice*, announcing that
Auction No. 35 would start on December 12, 2000. This Public Notice
lists the licenses to be auctioned, including licenses for spectrum on
which 21^st^ Century was previously licensed to operate.[^9] On October
6, 2000, 21^st^ Century filed the Petition, and on October 16, 2000 it
filed the Request for Stay.

**III. Discussion**

3\. [Request for Stay]{.underline}. 21^st^ Century bases its Request for
Stay on the four-prong test for issuance of a stay set forth in
*Washington Metropolitan Area Transit Comm\'n v. Holiday Tours,
Inc*.[^10] Under this test, a stay is warranted if the movant can
demonstrate that: (1) it is likely to prevail on the merits; (2) it will
suffer irreparable harm absent a stay; (3) interested parties will not
be harmed if the stay is granted; and (4) the public interest would
favor a grant of the stay.[^11] Upon examination of the Request for Stay
and as discussed below, we find that 21^st^ Century's arguments fail to
meet this standard. We, therefore, deny 21^st^ Century's request.[^12]

4\. In its Request for Stay, 21^st^ Century raises essentially the same
arguments as set forth in its Petition for Reconsideration of the
*August 7^th^ Decision*, which the Commission recently denied
("*Memorandum Opinion and Order"*).[^13] In the *Memorandum Opinion and
Order* adopted before the start date of Auction No. 35, the Commission
rejected 21^st^ Century's challenge to the automatic cancellation of its
licenses and upheld the Division's denial of 21^st^ Century's request
for waiver of the installment payment rule.[^14] Because the Commission
recently addressed the merits of 21^st^ Century's arguments regarding
the automatic cancellation of its licenses, we do not believe it is
necessary to reconsider those arguments again here. For the reasons set
forth in the Commission's *Memorandum Opinion and Order*, we find that
21^st^ Century fails to satisfy the first prong for the issuance of a
stay because it has not demonstrated that it is likely to prevail on the
merits.

5\. Furthermore, we find that 21^st^ Century has failed to demonstrate
that it would suffer irreparable harm in the absence of a stay. An
injury qualifies as \"irreparable harm\" only if it is \"both certain
and great; it must be actual and not theoretical.\"[^15] Therefore, to
demonstrate irreparable harm, 21^st^ Century must provide \"proof
indicating that the harm \[it alleges\] is certain to occur in the near
future.\"[^16] 21^st^ Century has supplied no such proof. 21^st^ Century
claims that it will suffer irreparable injury from the Commission's
decision to auction spectrum on which it was licensed to operate prior
to the cancellation of its licenses. The *September 6^th^ Public Notice*
explicitly states that the Commission will return the payments (not
including interest) made by winning bidders in Auction No. 35 in the
event that such bidders are subsequently required to surrender licenses
won to prior applicants or licenses holders as a result of final
determinations reached in pending proceedings.[^17] Therefore, no
irreparable harm will result to any such parties from our conduct of the
auction on the scheduled date. 21^st^ Century expresses concern that
should a third party win the spectrum on which 21^st^ Century was
licensed to operate, even if the matter were subsequently resolved in
21^st^ Century's favor in litigation, the resulting delay would "force
\[it\] virtually to start its business all over."[^18] We disagree. In
our view, 21^st^ Century's assertion that delay will result absent a
stay is purely speculative. Parties participating in the auction are on
notice that winning bidders of licenses that are subject to pending
proceedings may be required to surrender licenses won should a final
decision establish the prior right of another party to those licenses.
Thus, 21^st^ Century has not shown any irreparable harm that would
warrant a stay.

6\. Further, we find that grant of the Request for Stay would not serve
the public interest because doing so would defeat the clear policy
objective of Section 309(j) of the Communications Act, which requires
the Commission to promote the \"rapid deployment of new technologies,
products and services for the benefit of the public, . . .\"[^19] If we
were to accept 21^st^ Century's arguments for granting a stay,
subsequent spectrum auctions would be at risk of substantial
postponement while the Commission and courts review the myriad issues
parties raise in attempts to circumvent auctions for their individual
purposes. As noted above, 21^st^ Century's insubstantial arguments on
the merits do not warrant the extraordinary relief it seeks. Staying the
auction with respect to spectrum on which 21^st^ Century was licensed to
operate prior to its default would simply reward those who fail to make
timely payments at the expense of the public interest. Such action would
frustrate the business plans of entities that intend to bid on, and pay
for, their licenses and, as a result, undermine the integrity of the
auction process.

7\. [Petition for Partial Reconsideration]{.underline}. 21^st^ Century's
Petition relies on arguments raised by it in its Petition for
Reconsideration of the *August 7^th^ Decision.* The Commission has
already rejected those arguments in its *Memorandum Opinion and Order*
and, therefore, we deny 21^st^ Century's Petition for the same reasons.
[^20] In addition, 21^st^ Century argues that it should be provided
multiple opportunities to present its arguments to the Commission before
the spectrum on which it was previously licensed is reauctioned. [^21]
We disagree. With the issuance of the *Memorandum Opinion and Order*,
21^st^ Century has had a full opportunity to have its arguments
considered by the Commission.

**IV. Ordering Clauses**

8\. For the aforementioned reasons, 21^st^ Century's Request for Stay
and Petition for Partial Reconsideration and ARE DENIED. This action is
taken pursuant to authority delegated by § 0.131 of the Commission\'s
Rules, 47 C.F.R. § 0.131.

FEDERAL COMMUNICATIONS COMMISSION

Kathleen O'Brien Ham Deputy Chief, Wireless Telecommunications Bureau

[^1]: Request for Stay filed by Thomas Gutierrez and Todd Slamowitz,
    attorneys for 21^st^ Century, on October 16, 2000.

[^2]: *See* Letter from Louis Sigalos, Deputy Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau, to
    James M. LaBelle, Chairman and Chief Executive Officer, 21^st^
    Century Telesis, Inc., DA 00-1791 (rel. Aug. 7, 2000) ("*August
    7^th^ Decision*").

[^3]: Petition for Partial Reconsideration filed by Thomas Gutierrez and
    Todd Slamowitz, attorneys for 21^st^ Century, on October 6, 2000
    ("Petition").

[^4]: *See* "C and F Block Broadband PCS Spectrum Auction Scheduled for
    November 29, 2000, Rescheduled for December 12, 2000," *Public
    Notice*, Report No. AUC-00-35-C (Auction No. 35), DA 00-2038 (rel.
    Sept. 6, 2000) ("*September 6^th^ Public Notice*"); "Correction to
    Attachment A," *Public Notice*, Report No. AUC-00-35-D (Auction No.
    35), (rel. Sept. 12, 2000).

[^5]: *See* "Entrepreneur's C Block Auction Closes: FCC Announces
    Winning Bidders in the Auction of 493 Licenses to Provide Broadband
    PCS in Basic Trading Areas," *Public Notice*, DA 96-716 (rel. May 8,
    1996); "D, E, and F Block Auction Closes \-- Winning Bidders in the
    Auction of 1,479 Licenses To Provide Broadband PCS in Basic Trading
    Areas," *Public Notice*, DA 97-81 (rel. Jan. 15, 1997).

[^6]: *See* 47 C.F.R. § 1.2110(f).

[^7]: *See* Letter from Louis Sigalos, Deputy Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau, to
    James M. LaBelle, Chairman and Chief Executive Officer, 21^st^
    Century Telesis, Inc., DA 00-1791 (rel. Aug. 7, 2000).

[^8]: *See* Petition for Reconsideration filed by Thomas Gutierrez and
    Todd Slamowitz, attorneys for 21^st^ Century, on September 6, 2000.

[^9]: *September 6^th^ Public Notice*.

[^10]: 559 F.2d 841 (D.C. Cir. 1977).

[^11]: *Id.*

[^12]: *See* *NextWave Personal Communications, Inc. and NextWave Power
    Partners, Inc. v. FCC*, No. 00-1402 (D.C. Cir. Nov. 13, 2000)
    (denying motion for stay of Auction No. 35). We note that a number
    of other parties have attempted to stay Auction No. 35, but the D.C.
    Circuit Court has denied such requests. *See, e.g*,

    *Allegheny Communications Inc. v. FCC*, No. 00-1524 (D.C. Cir. Dec.
    11, 2000); *Urban Comm-North Carolina, Inc. v. FCC*, No. 00-1430
    (D.C. Cir. Dec. 4, 2000).

[^13]: *See* In the Matter of Licenses of 21^st^ Century Telesis, Inc.
    For Facilities in the Broadband Personal Communications Services,
    *Memorandum Opinion and Order*, FCC 00-434 (rel. December 21, 2000).

[^14]: *Id.*

[^15]: *Wisconsin Gas Co. v. FERC*, 758 F.2d 669, 674 (D.C. Cir. 1985).

[^16]: *Id.*

[^17]: *September 6^th^ Public Notice* at 6-7.

[^18]: Request for Stay at 11.

[^19]: 47 U.S.C. § 309(j)(3 )(A).

[^20]: *See* In the Matter of Licenses of 21^st^ Century Telesis, Inc.
    For Facilities in the Broadband Personal Communications Services,
    *Memorandum Opinion and Order*, FCC 00-434 (rel. Dec. 21, 2000).

[^21]: *See* Petition at 3.