**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| Motion of Ranger Cellular and    | ) |                              |
| Miller Communications, Inc. for  | * |                              |
| a Stay of the                    | * |                              |
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| Cellular Rural Service Areas     | * |                              |
| Auction No. 45                   | * |                              |
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ORDER

**Adopted: May 24, 2002 Released: May 24, 2002**

By the Deputy Chief, Wireless Telecommunications Bureau:

1.  We have before us a motion filed by Ranger Cellular and Miller
    Communications, Inc. ("Ranger and Miller") to stay Auction No. 45,
    which is scheduled to begin on May 29, 2002.[^1] Specifically,
    Ranger and Miller ask the Federal Communications Commission
    ("Commission") to delay the auction of three cellular Rural Service
    Area (RSA) licenses, and stay the auction rules pending judicial
    review of the Commission's decision to allow any qualified bidder to
    participate in Auction No. 45.[^2] For the reasons set forth below,
    we deny Ranger and Miller's Motion to Stay Auction No. 45.[^3]

2.  In their Motion to Stay, Ranger and Miller contend that they are
    likely to prevail in their pending legal challenge because the
    Commission's decision to permit open eligibility in Auction No. 45
    is contrary to relevant statutory language and to the Commission's
    own precedent.[^4] Ranger and Miller argue that the auction should
    be restricted to former lottery applicants that filed their
    applications prior to July 1997 and that continue to contest the
    Commission's dismissal of their applications.[^5] In support of
    their position, Ranger and Miller maintain that Section 309(l) of
    the Communications Act of 1934, as amended, restricts eligibility
    for auction participation to former lottery applicants and that
    limiting eligibility to participate in Auction No. 45 would be
    consistent with Commission precedent.[^6] Based on these assertions,
    Ranger and Miller contend that they are likely to be successful in
    their appeal, thereby requiring a re-auction of the cellular RSA
    licenses with a more limited number of participants.[^7]

3.  Ranger and Miller further argue that proceeding with the auction as
    scheduled will cause irreparable harm to the public.[^8] They
    contend that the pendency of their legal challenge creates
    uncertainty in the auction process, which will have a chilling
    effect on bidding and result in the Commission's receipt of
    "diminished proceeds."[^9] In addition, Ranger and Miller assert
    that if they participate in the auction as scheduled, the amounts
    that they and other bidders bid in the auction will be a matter of
    public record.[^10] They contend that if they subsequently win their
    appeal, participants in the re-auction will "know how much each
    party was willing to bid the first time."[^11] Ranger and Miller
    argue that this kind of information would be extremely useful for
    competing bidders in a re-auction and that the Commission's
    anti-collusion rules guard against dissemination of such
    information.[^12]

4.  Ranger and Miller claim that a stay of the auction will not harm
    other parties because cellular operators that have been granted
    interim operating authority will continue to offer cellular service
    to these rural markets until "permanent" licenses, free of any legal
    challenges, are granted.[^13] Ranger and Miller further argue that
    if their Motion to Stay is granted, parties will avoid having to
    make upfront payments and tie up such money indefinitely pending the
    outcome of the legal challenge.[^14] According to Ranger and Miller,
    even if they lose their pending appeal, all interested parties can
    then file applications to participate in the auction and will have
    lost nothing by the delay.[^15]

5.  Ranger and Miller rely on the four-prong test for issuance of a stay
    set forth *in Virginia Petroleum Jobbers Ass'n v. FPC.*[^16] Under
    the *Virginia Petroleum Jobbers* test, as modified by *Washington
    Metropolitan Area Transit Comm'n v. Holiday Tours, Inc*, 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) other interested parties will not be harmed if the stay is
    granted; and (4) the public interest would favor a grant of the
    stay.[^17] Upon examination of Ranger and Miller's Motion to Stay,
    we find that Ranger and Miller fail to meet this standard. Ranger
    and Miller have neither demonstrated that they are likely to prevail
    on appeal, nor have they made a substantial case under the other
    criteria for issuance of a stay. We reject Ranger and Miller's
    assertion that they are likely to prevail in their judicial appeal
    as highly speculative. Ranger and Miller's assumptions are based on
    nothing more than their belief in the merits of their own case. In
    the *Cellular RSA Report and Order*, the Commission rejected Ranger
    and Miller's interpretation of Section 309(l)[^18] as well as other
    arguments made in favor of restricting auction eligibility.[^19]
    Ranger and Miller have not presented any new legal authority to
    support a different conclusion. In addition, we note that completion
    of Auction No. 45 will have no effect on the power of the court to
    decide Ranger and Miller's appeal and order appropriate relief in
    the event that Ranger and Miller prevail on the merits and overcome
    the presumption of validity that supports the Commission's
    regulations.[^20]

6.  We further find that Ranger and Miller have failed to demonstrate
    that they 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."[^21] Therefore,
    to demonstrate irreparable harm, Ranger and Miller must provide
    "proof indicating that the harm \[it alleges\] is certain to occur
    in the near future."[^22] Ranger and Miller have not supplied such
    proof. Ranger and Miller have not demonstrated any specific harm to
    themselves from proceeding with the current auction schedule, nor
    can they. Their fear of revealing bidding strategies and tying up
    their upfront payment will not be realized because Ranger and Miller
    did not apply to participate in Auction No. 45.[^23] Moreover,
    Ranger and Miller's arguments that, absent a stay, irreparable harm
    would befall parties that *did* apply to participate in the auction
    does not meet the standards for grant of a stay under *WMATC*.[^24]
    Parties seeking a stay must show that absent the stay they, and not
    third parties, will suffer irreparable harm.[^25] In any case,
    Ranger and Miller's claim of harm to third parties is without merit
    because the Bureau advised prospective participants in Auctions No.
    45, that in formulating their business strategies they should take
    into account the impact of pending proceedings on the availability
    of spectrum for cellular RSA licensees.[^26] As a general matter, we
    expect that applicants bidding on licenses subject to litigation
    take such litigation into account in determining their bidding
    strategies, lowering the level of risk that results from bidding on
    licenses subject to pending proceedings.

7.  Further, we find that grant of Ranger and Miller's Motion for Stay
    would not serve the public interest, because doing so would defeat
    one of the underlying policy objectives of Section 309(j), which
    requires the Commission to promote the "rapid deployment of new
    technologies, products and services for the benefit of the
    public."[^27] If we were to accept Ranger and Miller's general
    arguments for granting a stay of Auction No. 45, subsequent spectrum
    auctions would be at risk of substantial postponement while courts
    review the myriad issues that parties raise in attempts to
    circumvent auctions for their individual purposes. Moreover, even if
    we were to conclude that it is appropriate in this instance to
    consider the impact of Ranger and Miller's pending appeal on the
    Commission's receipt of auction revenues, we have no basis on which
    to conclude that an open auction that is the subject of a pending
    legal proceeding would result in lower auction revenues than a
    closed auction in which bidding is limited to a few former lottery
    applicants. Additionally, we disagree with Ranger and Miller's
    assertion that a re-auction, if needed, would permit an exchange of
    information that is prohibited by the Commission's anti-collusion
    rules. This argument is premised on Ranger and Miller's claim that
    bidders in a re-auction would have knowledge of the value that
    bidders in a previous auction placed on the licenses. We do not
    agree with Ranger and Miller that the anti-collusion rules are
    implicated when the Commission conducts a re-auction. Behavior by a
    set of bidders in one auction does not reveal bidding strategy for a
    subsequent re-auction, since the pool of bidders may change, market
    conditions may vary, and the business plans of bidders may have
    changed markedly in the period of time between auctions. The
    information revealed by the original auction is public information
    which prospective bidders are free to make use of in determining
    their bidding strategies, just as they consider the results of other
    previous auctions of comparable spectrum. As discussed above, Ranger
    and Miller's insubstantial arguments on the merits do not warrant
    the extraordinary relief it seeks.

8.  Accordingly, IT IS ORDERED pursuant to sections 1, 4(i), 4(j), and
    303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    151, 154(i), 154(j), 303(r), and the authority delegated pursuant to
    section 0.331 of the Commission\'s rules, as amended, 47 C.F.R. §
    0.331, that the Motion to Stay filed by Ranger and Miller on March
    26, 2002, IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Kathleen O'Brien Ham

Deputy Chief, Wireless Telecommunications Bureau

[^1]: Motion to Stay Auction Rules Pending Judicial Review, filed by
    Ranger and Miller on March 26, 2002 ("Motion to Stay").

[^2]: Motion to Stay at 1-5*.* In a rulemaking proceeding in which
    Ranger and Miller participated, the Commission concluded that it is
    in the public interest to allow open eligibility to participate in
    the cellular RSA auction. Implementation of Competitive Bidding
    Rules to License Certain Rural Service Areas, *Report and Order*, 17
    FCC Rcd 1960, 1966 ¶ 10 (2002) ("*Cellular RSA Report and Order*").
    In response to that decision, Ranger and Miller filed a petition for
    review with the United States Court of Appeals for the D.C. Circuit,
    asking the court to reverse the Commission's order establishing open
    eligibility and require the Commission to restrict participation in
    Auction No. 45. That petition is pending. *Ranger Cellular and
    Miller Communications, Inc. v. FCC,* No. 02-1093 (D.C. Cir. filed
    March 18, 2002).

[^3]: We note that the Wireless Telecommunications Bureau ("Bureau")
    rejected Ranger and Miller's request to delay Auction No. 45 on
    other grounds. *See* Cellular Rural Service Areas Auction Scheduled
    for May 29, 2002, Notice and Filing Requirements, Minimum Opening
    Bids, Upfront Payments, and Other Auction Procedures, *Public
    Notice*, DA 02-470 (rel. March 4, 2002), 67 Fed. Reg. 16383 (rel.
    April 5, 2002) ("*Auction No. 45 Procedures Public Notice*").

[^4]: Motion to Stay at 2-3.

[^5]: Motion to Stay at 2.

[^6]: Motion to Stay at 2-3.

[^7]: *Id*.

[^8]: Motion to Stay at 3-4.

[^9]: Motion to Stay at 3.

[^10]: *Id.*

[^11]: *Id*.

[^12]: Motion to Stay at 3-4.

[^13]: Motion to Stay at 4.

[^14]: *Id.*

[^15]: *Id.*

[^16]: *Virginia Petroleum Jobbers Association v. Federal Power
    Commission*, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir.
    1958) ("*Virginia Petroleum Jobbers*").

[^17]: *Washington Metro Area Transit Commission v. Holiday Tours,
    Inc*., 559 F.2d 841, 843 (D.C. Cir. 1977) ("*WMATC*").

[^18]: *Cellular RSA Report and Order*, 17 FCC Rcd at 1969-70 ¶¶ 16-17.

[^19]: *Cellular RSA Report and Order*, 17 FCC Rcd at 1970-72 ¶¶ 18-21.

[^20]: *See* *FCC v Radiophone, Inc*., 516 U.S. 1301, 116 S.Ct. 283
    (1995) (Justice Stevens vacating a stay of an auction).

[^21]: *See Wisconsin Gas Co. v. FERC*, 758 F.2d 669, 674 (D.C. Cir.
    1985).

[^22]: *Id*.

[^23]: Ranger and Miller did not file a short-form application to
    compete in Auction No. 45 by the April 17, 2002 deadline. Auction of
    Licenses For Cellular Rural Service Areas, Status of FCC Form 175
    Applications to Participate in the Auction, *Public Notice*, DA
    02-965 (rel. April 29, 2002).

[^24]: *See WMATC,* 559 F.2d at 844 (motion to stay is appropriate "when
    denial of the order would inflict irreparable injury on the
    movant").

[^25]: *Id*. *See also United States* *v. International Brotherhood of
    Teamsters, Chauffeurs, Warehousemen and Helpers of America,
    AFL-CIO,* 1991 WL 243270, (S.D.N.Y.)(the court found that the
    plaintiff did not meet the second prong when it argued that "third
    parties will be harmed absent a stay").

[^26]: *Auction No. 45 Procedures Public Notice* at 4-5.

[^27]: 47 U.S.C. § 309(j)(3)(A).