**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| Petition for Reconsideration and | ) |                              |
| Motion for Stay of Paging        | * |                              |
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ORDER

**Adopted: April 21, 2005 Released: April 21, 2005**

By the Acting Chief, Wireless Telecommunications Bureau:

1.  We have before us a Petition for Reconsideration[^1] and Motion for
    Stay[^2] filed by Paging Systems, Inc. ("PSI"), asking that the
    Wireless Telecommunications Bureau ("Bureau"): (i) reconsider an
    order issued by the Auctions and Spectrum Access Division (the
    "Division"); (ii) set aside the results of Auction No. 57; (iii)
    re-open the application process for an applicant that failed to
    qualify to participate in the auction; and (iv) allow bidders to
    select additional markets in a newly instituted auction of the
    licenses available in Auction No. 57. Further, PSI asks that the
    Bureau stay the processing of long-form applications submitted by
    winning bidders in Auction No. 57 until its Petition is
    resolved.[^3] For the reasons set forth below, we deny PSI's
    Petition and its related Motion to Stay.

# BACKGROUND

2.  On April 4, 2004, the Bureau released its *Public Notice* seeking
    comment on the procedures to govern Auction No. 57, which offered 20
    licenses in the Automated Maritime Telecommunications System
    ("AMTS") service in the 217/219 MHz bands.[^4] After review of
    comments, the Bureau released a public notice announcing the filing
    deadline for short-form applications (FCC Form 175), minimum opening
    bids and other procedures for Auction No. 57.[^5] On August 4, 2004,
    the Bureau released its *Auction No. 57 Status Public Notice*, which
    announced that five short-form applications to participate in
    Auction No. 57 had been submitted.[^6] The *Auction No. 57 Status
    Public Notice* identified three applications as "accepted for
    filing" and two applications as "incomplete."[^7] Among those
    accepted for filing were applications filed by Telesaurus-VPC, LLC
    ("Telesaurus") and AMTS Consortium, LLC ("Consortium").[^8]
    According to the Telesaurus and Consortium short-form applications,
    these entities have different ownership structures, although
    Warren C. Havens is a controlling interest for each entity.[^9] A
    third application submitted by Mobex was also accepted for filing.
    PSI and Thomas K. Kurian were provided with an opportunity to
    address deficiencies in their respective applications and resubmit
    them.[^10] After review of the resubmitted applications, the
    Division accepted those two applications.[^11]

3.  Shortly before the August 20, 2004 upfront payment deadline, Mobex
    submitted several filings seeking a delay of the auction schedule
    and disqualification of the short-form applications filed by
    Telesaurus and Consortium.[^12] In these filings, Mobex requested
    that the Bureau issue a declaratory ruling on whether two commonly
    controlled entities can participate in the same auction.[^13] Mobex
    asked that the Bureau dismiss the two short-form applications that
    are each controlled by Mr. Havens,[^14] and stay the deadline for
    submission of upfront payments until thirty days after the Bureau
    resolves the Request for a Declaratory Ruling.[^15] Mobex further
    requested that the Bureau stay the start date for bidding in Auction
    No. 57 until thirty days after the Commission has lifted the
    requested stay of the deadline for submission of upfront
    payments.[^16]

4.  One day prior to the start of Auction No. 57 and over a month after
    the short form applications became available for public review, PSI
    submitted a letter to the Division seeking a response to Mobex's
    requests.[^17] Mobex, however, did not submit an upfront payment and
    thus was not qualified to participate in Auction No. 57.[^18]

5.  On September 15, 2004, the Division issued an *Order* that denied
    the relief sought by Mobex and supported by PSI.[^19] In its ruling
    the Division stated that the two applicants commonly controlled by
    Mr. Havens had complied with all disclosure requirements in the
    Commission's Part 1 rules, and that there was no prohibition in the
    Part 1 rules that barred two commonly controlled applicants from
    participating in an auction.[^20] The Division explained that there
    are many legitimate business reasons to participate in the auction
    in this fashion, that the Bureau has safeguards in place to address
    concerns regarding anti-competitive bid withdrawals or defaults, and
    that the commonly controlled entities do not have any informational
    advantage relative to other bidders.[^21] The Division also noted
    that, consistent with the Part 1 disclosure requirements,[^22]
    Consortium and Telesaurus had each disclosed that: (i) Havens is the
    controlling interest for both applicants; (ii) Havens manages both
    applicants; and (iii) there is a joint bidding agreement between the
    two applicants.[^23]

6.  Auction No. 57 began on September 15, 2004, as scheduled and closed
    on September 15, 2004. The Commission issued a *Public Notice*
    announcing the results of Auction No. 57, and identifying the
    winning bidders.[^24] PSI now asks that the Bureau set aside the
    results of Auction No. 57, allow Mobex another opportunity to submit
    a short-form application, and permit the other applicants an
    opportunity to select additional markets.[^25] PSI concedes that
    unwinding an auction in this manner would constitute "extraordinary
    relief."[^26] Mr. Havens, along with Consortium and Telesaurus,
    opposed the Petition and Motion for Stay, and PSI replied.[^27]
    Subsequently, four months after the pleading cycle had ended, Mr.
    Havens submitted a letter arguing that PSI's Petition is defective
    on procedural grounds.[^28] PSI moved to strike Mr. Havens's letter
    as an unauthorized pleading.[^29]

# DISCUSSION

## PSI Petition for Reconsideration

7.  In its Petition, PSI argues that Auction No. 57 was
    "anti-competitive" because the Division allowed two commonly
    controlled entities to participate in Auction No. 57.[^30] To
    support its position, PSI cites Mobex's decision to not participate
    in Auction No. 57 and an economic analysis provided by Dr. John
    Morgan.[^31] According to PSI, Dr. Morgan's analysis supports its
    belief that the presence of commonly controlled entities in an
    auction creates a disincentive for other bidders to
    participate.[^32] PSI also points out that in Auction No. 57 the
    commonly controlled bidders did not compete against each other.[^33]
    Furthermore, PSI argues that Section 1.937(d) of the Commission's
    rules provides for the dismissal of a conflicting application
    submitted by the same applicant.[^34]

8.  On October 27, 2004, Mr. Havens, Telesaurus and Consortium (the
    "Common Entities") filed their Opposition to Petition for
    Reconsideration.[^35] In their Opposition to the Petition, the
    Common Entities argue that PSI: (i) lacks standing to seek
    reconsideration;[^36] (ii) seeks nothing more than a second
    opportunity to acquire the licenses offered in Auction No. 57;
    and (iii) wants to delay the rollout of competitive services.[^37]
    The Common Entities also contend that the Commission should
    investigate whether PSI has constructed and operated its stations as
    required by Section 80.385(c) of the Commission's rules.[^38] The
    Common Entities claim that if PSI succeeds, all future auctions will
    be susceptible to attack by any entity that is unhappy with the
    results of the auction.[^39] Further, the Common Entities claim that
    after committing to the Great Lakes B-block license, PSI lacked
    bidding eligibility to bid on any more licenses and thus lacks
    standing to file the Petition since it won that license and could
    not have won any other licenses.[^40] The Common Entities also claim
    that under Section 1.106(b)(1) of the Commission's rules, PSI, as a
    non-party to the proceeding, must demonstrate that PSI could not
    have participated earlier in the proceeding.[^41] The Common
    Entities disagree with PSI's assertion that Section 1.937(d) of the
    Commission's rules bars the applications submitted by Consortium and
    Telesaurus because those applications conflict.[^42] The Common
    Entities contend that the Consortium and Telesaurus applications do
    not conflict in any way, and point out that Consortium and
    Telesaurus are different legal entities. Finally, the Common
    Entities assert that a grant of the Petition would not be in the
    public interest.[^43]

9.  In its Reply, PSI claims that as a qualified bidder that supported
    Mobex's requests for relief, it has standing to seek reconsideration
    of the Division's *Order*.[^44] While PSI concedes that there is no
    *per se* prohibition in the Commission's Part 1 competitive bidding
    rules that would disallow two commonly controlled entities from
    participating in a spectrum auction, it believes that Section
    1.937(d) prohibits conflicting or commonly controlled
    applications.[^45]

### PSI's Theoretical Economic Analysis

10. To support its Petition, PSI essentially presents the same arguments
    made by Mobex that the Division rejected in its *Order* when Mobex
    had sought to delay Auction No. 57.[^46] PSI tries to renew Mobex's
    claims by providing an analysis prepared by Dr. Morgan, which also
    contends that the participation of commonly controlled bidders
    creates a disincentive for other bidders to participate in an
    auction.[^47] PSI argues that Dr. Morgan's theory is supported by
    Mobex's decision to not participate in Auction No. 57 and PSI's
    alleged decision to limit its participation in Auction No. 57.
    First, we note that since PSI concedes that the participation of
    commonly controlled entities is not prohibited by our competitive
    bidding rules, PSI is in effect arguing that the rules are flawed
    because they do not prohibit such participation. We disagree. To the
    extent that additional participating bidders represent increased
    auction competition, the efficiency of the auction may be enhanced,
    since additional bidders may increase the likelihood that the
    auction will assign licenses to the parties which value them most
    highly. An increase in the number of bidders may provide more price
    information to other participants in an auction and reduces
    opportunities for collusion and other anticompetitive conduct.[^48]
    Moreover, the Commission's Part 1 competitive bidding rules are
    intended to ensure the transparency of the Commission's auction
    process.[^49]

11. We do not find Dr. Morgan's theoretical analysis to be a persuasive
    argument against permitting bidders with common controlling
    interests to participate in our auctions. Dr. Morgan suggests that
    when a controlling interest creates a second bidding entity, other
    bidders may be deterred from entering an auction because they regard
    an increased number of competitors as reducing their own chances of
    winning.[^50] His analysis relies on a mathematical model that
    assumes that all bidders' valuations are independent and all bidders
    are alike (or have symmetry), which are inconsistent with some of
    the basic characteristics of the FCC's auction process.[^51]
    Therefore we do not agree with Dr. Morgan's conclusion that bidders
    will be deterred from participating strictly because of the number
    of other bidders. Entities participating in FCC auctions are likely
    to make decisions about whether to participate based on more
    complete information about the role of additional bidders, since the
    Commission's Part 1 competitive bidding rules require the disclosure
    of any affiliations or bidding agreements among applicants.[^52]
    Auction participants are free to evaluate for themselves the extent
    to which a bidder affiliated with another bidder may represent an
    independent competitive entity, and are unlikely to be deterred
    simply because nominally there is an additional bidder
    participating, as Dr. Morgan argues.[^53]

12. We have been presented with no evidence that would undermine our
    conclusion that the presence of two commonly controlled entities is
    both permissible and does not adversely affect the interest of other
    bidders. In Auction No. 57, Consortium was the winning bidder of
    five licenses, Telesaurus was the winning bidder of three licenses,
    Mr. Kurian was the winning bidder of one license, and PSI was the
    winning bidder of one license.[^54] No one has provided any evidence
    of anticompetitive bidding activity in Auction No. 57. The
    Commission's rules are designed to allow small and very small
    business entities, such as Consortium and Telesaurus, sufficient
    latitude to decide how best to structure their businesses and
    participate in a spectrum auction in terms of raising capital,
    assembling technical expertise, and developing bidder strategy.[^55]
    Further, as the Division noted previously, the Commission's rules
    contain safeguards to protect against anticompetitive bidding
    activity, such as strategic withdrawals or defaults.[^56]

13. Moreover, as the Division previously found, there is no requirement
    that bidders compete against all other bidders in an auction.[^57]
    The Part 1 competitive bidding rules allow bidders to have joint
    bidding agreements, joint marketing agreements, and post auction
    agreements concerning market structure that might allow auction
    participants to behave in a manner similar to commonly controlled
    applicants.[^58] Moreover, we decline to draw any conclusions from
    the decision of Mobex to not participate in Auction No. 57.[^59]
    While PSI ascribes a basis for Mobex's decision not to bid in
    Auction No. 57, we find it significant that PSI fails to acknowledge
    that Mobex's previously stated reasons for seeking delay of the
    start of Auction No. 59 were unrelated to arguments about the
    participation in the auction by commonly controlled entities.[^60]
    Accordingly, we conclude that PSI's claims that the Division's
    decision will result in anticompetitive auction outcomes lacks merit
    and, therefore, affirm the *Division* *Order*.

### Analysis of Section 1.937(d)

14. PSI also argues that Section 1.937(d) provides for the dismissal of
    conflicting applications such as the applications submitted by
    Consortium and Telesaurus.[^61] PSI contends that Section 1.937(d)
    applies to short-form applications. We disagree. Commission
    precedent is clear that Section 1.937 prohibits the filing of
    "repetitious license applications," or conflicting long-form
    applications.[^62] Clearly, Section 1.937 applies only to those
    instances where an applicant has filed repetitive or conflicting
    applications for a radio service while another application by the
    same applicant for a license in the same radio service has either
    already been decided or is pending for decision by the
    Commission.[^63] Here, the applications in question are not for
    radio services licenses, but rather an opportunity to participate in
    a spectrum auction. Moreover, the applications that PSI views as
    "conflicting" do not seek to relitigate a radio service licensing
    issue previously decided by the Commission. Rather, as the Division
    observed previously, Telesaurus and Consortium have different
    ownership structures, which may facilitate implementation of
    different business plans, financing requirements or marketing needs,
    avoid transactional costs in the secondary market, or meet other
    business needs.[^64] In short, Section 1.937(d) does not apply to
    short-form applications, and provides no support for PSI's claims.

## PSI's Motion for Stay 

15. PSI's Motion for Stay seeks to stay the processing of long-form
    applications submitted by Auction No. 57 winning bidders. PSI's
    motion is grantable if it can show that: (i) PSI is likely to
    prevail on the merits; (ii) PSI will suffer irreparable harm, absent
    a stay; (iii) other interested parties will not be harmed if the
    stay is granted; and (iv) the public interest would favor a grant of
    the stay.[^65] Based on the facts and arguments presented, PSI has
    failed to meet the standard for a stay of the post auction
    proceedings. PSI has not demonstrated that it is likely to prevail
    on the merits, that it will be irreparably harmed, and that other
    parties will not be harmed if the auction is stayed. Moreover, the
    public interest does not favor a stay. In response to the Motion for
    Stay, the Common Entities filed their joint Opposition to Motion for
    Stay.[^66]

### Likelihood of Success 

16. As demonstrated above, PSI has failed to show that it will likely
    prevail on the merits of its argument that two commonly controlled
    entities should not be permitted to participate in the same auction.

### Irreparable Harm

17. An injury qualifies as "irreparable harm" only if it is both certain
    and great, it must be actual and not theoretical.[^67] Thus, to
    demonstrate irreparable harm, PSI must provide "proof indicating
    that the harm it alleges is certain to occur in the near
    future.[^68] PSI has supplied no such proof. PSI fully participated
    in Auction No. 57 and won an AMTS license. It knew the terms under
    which Consortium and Telesaurus structured their respective
    companies: joint ownership, management, and bidding arrangements.
    Moreover, PSI has not demonstrated any conduct by the Common
    Entities acting collectively or separately during the auction that
    disadvantaged PSI in its participation in Auction No. 57. Thus, we
    find that PSI has not met the second prong of the test to support
    its requested stay.[^69]

### Harm to Others 

18. PSI concedes, as it must, that the suspension of processing
    long-form applications will delay the ultimate authorization for use
    of the spectrum.[^70] Nevertheless, PSI argues that not resolving
    its Petition is the greater harm. PSI cites the uncertainty which it
    believes would hang over successful bidders if its Petition is not
    first resolved. As noted above, we have resolved the Petition by
    this order. We believe that any delay in the post-auction process
    would harm other successful bidders and will delay the rollout of
    AMTS services to customers.[^71] In light of the foregoing, the
    Bureau believes that the public would not be served by a stay of the
    post-auction licensing process.

### Public Interest Considerations 

19. As noted above, we find no basis for overturning the results of
    Auction No. 57. To do so, would not only undermine the public
    interest in the finality of the auction process, but potentially
    would embolden future disappointed bidders and applicants to seek
    similar relief.[^72] We firmly believe that the public interest is
    best served by continuing with the license assignment process. One
    of the primary goals of the Commission's auction program is to
    ensure the development and rapid deployment of new technologies,
    products, and services for the benefit of the public without delays,
    and promote the efficient and intensive use of the electromagnetic
    spectrum.[^73] These goals can best be met by moving forward with
    the post-auction licensing process. Thus, we find that the public
    interest would not be served by the grant of PSI's Motion.

# III. conclusion  {#iii.-conclusion .unnumbered}

20. 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), 309(j)(3) and the authority delegated
    pursuant to section 0.331 of the Commission\'s rules, as amended, 47
    C.F.R. §§ 0.131(c), 0.331, Petition for Reconsideration filed by
    Paging Systems, Inc. IS DENIED.

21. IT IS FURTHER ORDERED that the Motion to Stay Post-Auction No. 57
    proceedings IS ALSO DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Catherine W. Seidel

Acting Chief

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration by Paging Systems, Inc. (filed Oct.
    14, 2004) ("Petition").

[^2]: Motion for Stay by Paging Systems Inc. (filed Oct. 14, 2004).

[^3]: Motion for Stay at 1.

[^4]: "Auction of Automated Maritime Telecommunications System Spectrum
    Auction Scheduled for September 15, 2004, Comment Sought on Reserve
    Process or Minimum Opening Bids and Other Auction Procedures,"
    *Public Notice*, 19 FCC Rcd 6274 (2004) ("*Auction No. 57 Comment
    Public Notice*"); 47 U.S.C. § 309(j)(3)(E)(i).

[^5]: "Automated Maritime Telecommunications System Spectrum Auction
    Scheduled for September 15, 2004, Notice and Filing Requirements,
    Minimum Opening Bids, Upfront Payments, and Other Auction
    Procedures," *Public Notice,* 19 FCC Rcd. 9518 (2004) ("*Auction No.
    57 Procedures Public Notice*"); *see* 47 U.S.C. § 309(j)(3)(E)(i)
    (obligation of the Commission to "ensure that, in the scheduling of
    any competitive bidding under this subsection, an adequate period is
    allowed before issuance of bidding rules, to permit notice and
    comment on proposed auction procedures"))*.*

[^6]: "Automated Maritime Telecommunications System Spectrum Auction;
    Status of FCC Form 175 Applications to Participate in the Auction,"
    *Public Notice*, 19 FCC Rcd 14874 (2004) ("*Auction No. 57 Status
    Public Notice*"). The five applications were received from (i) AMTS
    Consortium, LLC; (ii) Telesaurus-VPC, LLC; (iii) Mobex; (iv) Thomas
    K. Kurian; and (v) Paging Systems, Inc. *See id.*

[^7]: *Id.* Applicants that had incomplete applications were provided
    with an opportunity to address the deficiencies with their
    applications. *See* 47 C.F.R. § 1.2105(b)(2).

[^8]: *See Auction No. 57 Status Public Notice,* 19 FCC Rcd 14874.

[^9]: *See* FCC Forms 175 of Telesaurus-VPC, LLC and AMTS Consortium,
    LLC for Auction No. 57 (filed July 19, 2004). Pursuant to Section
    1.2105(a)(2)(viii), each application disclosed a bidding arrangement
    with the other commonly controlled bidder. *See id.*, Exhibit B.

[^10]: *Auction No. 57 Status Public Notice*, 19 FCC Rcd at 14874-75,
    14880, Attachment B; *see also* 47 C.F.R. § 1.2105(b)(2), FCC Form
    175 resubmitted by Thomas K. Kurian on August 5, 2004 and FCC Form
    175 resubmitted by Paging Systems, Inc. on August 5, 2004.

[^11]: "Automated Maritime Telecommunications System Spectrum Auction,"
    *Public Notice*, 19 FCC Rcd 20452, 20459, Attachment A (rel. August
    27, 2004) ("*Auction No. 57 Qualified Bidders' Public Notice*").

[^12]: Mobex filed: (i) Motion for Stay -- Urgent Action Requested,
    Automated Maritime Telecommunications System, Auction #57, dated
    August 13, 2004 ("Motion to Stay Auction"); (ii) Request for
    Declaratory Ruling -- Urgent Action Requested, Automated Maritime
    Telecommunications System, Auction #57, dated August 13, 2004
    ("Request for Declaratory Ruling"); (iii) Motion for Stay -- Urgent
    Action Requested, Automated Maritime Telecommunications System,
    Auction #57, dated August 13, 2004 ("Motion to Stay Upfront Payment
    Date"); and (iv) Informal Request for Action -- Urgent Action
    Requested, Automated Maritime Telecommunications System, Auction
    #57, dated August 13, 2004 ("Motion to Dismiss").

[^13]: Request for Declaratory Ruling at 1.

[^14]: Motion to Dismiss at 1.

[^15]: Motion to Stay Upfront Payment Date at 1.

[^16]: Motion to Stay Auction at 1. Telesaurus VPC LLC, AMTS Consortium,
    and Warren Havens (the "Responders") filed pleadings in opposition,
    and Mobex responded. The Responders pleadings in opposition
    included: (i) Opposition to the Mobex § 1.41 Request to Dismiss the
    Applications of Telesaurus VPC LLC and AMTS Consortium LLC to
    Participate in Auction No. 57, dated September 8, 2004 ("Opposition
    to Motion to Dismiss"); (ii) Opposition to Request for Declaratory
    Ruling, AMTS Auction 57, dated September 7, 2004 ("Opposition to
    Request for Declaratory Ruling"); and (iii) Opposition to the Two
    Motions for Stay, AMTS Auction 57, dated September 7, 2004
    ("Opposition to Motions for Stay"). In response, Mobex filed: (i)
    Reply to Opposition to Request for Declaratory Ruling, Automated
    Maritime Telecommunications System, Auction No. 57, dated September
    14, 2004; (ii) Reply to Opposition to Motions for Stay, Automated
    Maritime Telecommunications System, dated September 14, 2004; and
    (iii) Reply to Opposition to Informal Request for Action, Automated
    Maritime Telecommunications System, dated September 14, 2004.
    Although it made this filing electronically with the Commission less
    than one day before the start of the bidding in Auction No. 57,
    Mobex chose to serve the other bidders via regular mail.

[^17]: *See* Letter from Audrey P. Rasmussen to Marlene H. Dortch (filed
    Sept. 14, 2004).

[^18]: *Auction No. 57 Qualified Bidders' Public Notice* at Attachment
    C.

[^19]: Motions for Stay of Auction No. 57 and Requests for Dismissal or
    Disqualification, *Order*, 19 FCC Rcd 20482 (2004) ("*Division
    Order*").

[^20]: *Id.,* 19 FCC Rcd at 20485 ¶ 8.

[^21]: *Id.,* 19 FCC Rcd at 20485-87 ¶¶ 9, 15.

[^22]: 47 C.F.R. §§ 1.2105 (a)(2)(viii-ix), 1.2105(c)(1).

[^23]: *See* Forms 175 of Telesaurus and Consortium, Exhibits A and B.

[^24]: "Automated Maritime Telecommunications System Spectrum Auction
    Closes, Winning Bidders Announced, Down Payments Due October 1,
    2004, FCC Forms 601 and 602 Due October 1, 2004, Ten-Day Petition to
    Deny Period," *Public Notice*, 19 FCC Rcd 18252, 18258 (2004)
    ("*Auction No. 57 Winning Bidders Public Notice*").

[^25]: Petition at 8; Motion at 2. With regard to PSI's request that the
    Bureau unwind the auction and limit participation in a reauction
    only to those entities that had qualified to participate in Auction
    No. 57, we note that short-form application filing deadlines are not
    "cut-off dates" that provide applicants with protection from
    additional competition in auctions or give protected status to
    applicants with accepted applications. *See* Elleron Oil Company*,
    Order*, 13 FCC Rcd 17246 (WTB 1998).

[^26]: Motion at 2.

[^27]: Opposition to Motion to Dismiss; Opposition to Request for
    Declaratory Ruling; Reply of Paging Systems, Inc. (filed Dec. 7,
    2004).

[^28]: Letter from Warren Havens to Howard Davenport, Auctions and
    Spectrum Access Division, WTB (dated March 7, 2005).

[^29]: Motion to Strike of Paging Systems, Inc. (dated March 10, 2005).
    We dismiss both Mr. Havens's March 7^th^ letter and PSI's Motion to
    Strike as untimely under Section 1.106 of the Commission's rules.
    *See* 47 C.F.R. § 1.106(f)-(h) (establishing deadlines for petitions
    for reconsideration and related pleadings).

[^30]: Petition at 4; *see also* Motion at 4.

[^31]: Petition at 4, Exh. 1.

[^32]: Petition at 5.

[^33]: Petition at 6.

[^34]: 47 C.F.R. § 1.937(d).

[^35]: Opposition to Petition for Reconsideration, filed October 27,
    2004 (Opposition to Petition).

[^36]: In light of our affirmation of the Division's *Order*, we need
    not address Mr. Haven's challenge to PSI's standing. We question
    whether PSI has standing here. Under section 1.106 of the
    Commission's rules, PSI must show that its interests are adversely
    affected by the action taken by the Bureau and that it did not have
    the opportunity to participate in the earlier stages of the
    proceeding. 47 C.F.R. § 1.106(b)(1). We note that in such inquiries
    the Commission frequently relies upon the three-pronged standing
    test under which a party must establish: (1) a distinct and palpable
    personal injury-in-fact that is (2) traceable to the respondent's
    conduct and (3) redressable by the relief requested. *See, e.g.,*
    AT&T Corp., *Order on Reconsideration*, 16 FCC Rcd 21,750,
    21,753-21,754 ¶ 7 (2001). PSI contends that it "became cautious,"
    and that Mobex declined to participate because of concerns that
    participation by the commonly controlled applicants would render the
    auction anticompetitive. Nevertheless, we note that PSI did
    participate in the auction, and while it indicated it intended to
    bid on seven of the B block licenses, PSI submitted an upfront
    payment sufficient to win either only one of the five most-populated
    licenses that it had selected or the two smallest licenses (in terms
    of population) it had selected. Ultimately PSI won the only license
    on which it bid and it had no bidding eligibility to bid on another
    license without withdrawing its high bid. Thus, PSI has not shown
    that it would satisfy the legal standard to establish standing.

[^37]: Opposition to Petition at 3-10.

[^38]: Opposition to Petition at 3, 8, n. 6; 47 C.F.R. § 80.385(c).

[^39]: Opposition at 4.

[^40]: Opposition to Petition at 6, 8.

[^41]: 47 C.F.R. § 1.106(b)(1); Opposition to Petition at 8.

[^42]: 47 C.F.R. § 1.937(d); Opposition to Petition at 10.

[^43]: Opposition to Petition at 5.

[^44]: PSI Reply to Opposition to Petition for Reconsideration, filed
    Nov. 5, 2004.

[^45]: Reply to Opposition to Petition for Reconsideration at 3.
    Finally, PSI disagrees that its Petition is of such a frivolous
    nature that it requires the imposition of sanctions. Reply to
    Opposition to Petition for Reconsideration at 6-8.

[^46]: *See* *Division Order*, 19 FCC Rcd 20482.

[^47]: Petition at 5.

[^48]: *Cf.* Cramton and Schwartz, "Collusive Bidding in the FCC
    Spectrum Auctions," *Contributions to Economic Analysis & Policy*,
    1:1 ("in simple settings with few goods and few bidders, bidders
    have the incentive to reduce demands.").

[^49]: *See* Amendment of Part 1 of the Commission's Rules --
    Competitive Bidding Procedures, *Seventh Report and Order*, 16 FCC
    Rcd 17546, 17550 ¶ 12 (2001) ("By requiring applicants to update
    pending applications to reflect ... prohibited collusive agreements
    and communications, the Commission has sought to ensure the
    integrity and transparency of its auction processes.").

[^50]: Petition, Exhibit 1 at 1.

[^51]: *See* Petition, Exhibit 1, n. 3 and p. 3-4. Dr. Morgan uses an
    auction model commonly referred to as a symmetric independent
    private values framework. *See, e.g.,* Wolfstetter, Elmar. *Topics
    in Microeconomics*, Cambridge University Press, 1999. This model
    assumes independent values and symmetry among bidders, which we
    regard as not representative of the current context. Absent these
    assumptions, such models can yield very different results. The
    Commission's rules permit participation by entities that have
    bidding or other agreements with each other as well as entities
    under common control, provided required disclosures are made.

[^52]: *See* 47 C.F.R. §§ 1.2105, 1.2112.

[^53]: We also note the inconsistency within Dr. Morgan's model between
    the assumption that the values of commonly controlled entities are
    independent (*see* note 51, *supra*) and the assumption that the
    controlling entity benefits fully and directly from bidding activity
    of the newly-created entity. Petition, Exhibit 1 at 5.

[^54]: *Auction No. 57 Winning Bidders Public Notice,* 19 FCC Rcd at
    18258.

[^55]: *See* Implementation of Section 309(j) of the Communications --
    Competitive Bidding, *Second Report and Order*, 9 FCC Rcd 2348,
    2388-2400 (1994) (establishing preferences for designated entities,
    including small businesses).

[^56]: *Division Order*, 19 FCC Rcd at 20486 ¶ 12 (discussing safeguards
    in Section 1.2104(g) of the Commission's rules and other procedures
    established by the Bureau prior to Auction No. 57 to protect against
    anticompetitive bidding behavior).

[^57]: *Id*., 19 FCC Rcd at 20485 ¶ 10.

[^58]: 47 C.F.R. §§ 1.2105 (a)(2)(viii-ix), 1.2105(c)(1).

[^59]: *Compare* Comments of Mobex Communications, Inc. (filed April 23,
    2004) (Mobex's statement prior to the short-form deadline suggesting
    Mobex's possible problems in securing financing to participate in
    Auction No. 57) *with* Reply to Opposition to Declaratory Ruling of
    Mobex (dated Sept. 14, 2004) (statement by Mobex after it failed to
    submit an upfront payment implying that Mobex chose not to
    participate on account of perceived unfairness in the auction
    process).

[^60]: Comments of Mobex Communications, Inc. (filed April 23, 2004)
    (suggesting problems in securing financing); *see also* *Auction No.
    57 Procedures Public Notice*, 19 FCC Rcd at 9528.

[^61]: Petition at 6.

[^62]: *See* Amendment of Section 1.937 of the Commission's Rules
    Concerning Repetitious or Conflicting Applications, *Report and
    Order*, 18 FCC Rcd 7190 ¶ 1 (2003). "Section 1.937 and its
    antecedents were adopted to achieve sound administrative process by
    barring applicants from immediately re-litigating matters already
    decided." *Id.*, 18 FCC Rcd at 7191 ¶ 2. *See also* 47 C.F.R. §
    1.907 (definition of "application").

[^63]: *See* Applications of Interactive Control Two, Inc, Wincom Corp.,
    U.S. Telemetry-New Brunswick, Inc., U.S. Telemetry-Lancaster, Inc.
    For Consent to the Assignment of Licenses for Stations KIVD0063 and
    KIVD0247 in the 218-219 MHz Service, *Order on Reconsideration*, 16
    FCC Rcd. 18948, 18953 (2001).

[^64]: *See Division Order*, 19 FCC Rcd at 20844 ¶ 9.

[^65]: *Washington Metropolitan Area Transit Commission v. Holiday
    Tours, Inc*., 559 F.2d 841, 843 (D.C. Cir. 1977).

[^66]: Opposition to Motion for Stay by the Common Entities, filed Oct.
    21, 2004.

[^67]: *Wisconsin Gas Company v. FERC*, 758 F.2d 669, 674 (D.C. 1985).

[^68]: *Id.*

[^69]: *Cf.* Motion of Ranger Cellular and Miller Communications, Inc.
    for a Stay of Auction No. 45, 17 FCC Rcd 9320 (WTB 2002).

[^70]: Motion to Stay at 5.

[^71]: *Cf.* Flexibility for Delivery of Communications By Mobile
    Satellite Service Providers in the 2 GHz Band, the L-band, and the
    1.6/2.4 GHz Bands, *Report and Order and Notice of Proposed Rule
    Making*, 18 FCC Rcd 1962, 2085-86 ¶ 258 (2003) (denying request to
    stay proceeding, the Commission stated:

    > a stay in this proceeding disserves the public interest by
    > delaying the introduction of new competition and services
    > contemplated by this order. Stay of this proceeding would also set
    > a precedent that pending proceedings could be easily stayed by the
    > filing of a petition for rulemaking, or a subsequent
    > reconsideration process if such a petition is denied, even when
    > the legal requirements for a stay have not been met. The
    > Commission cannot permit its processes to be paralyzed by filings
    > that make no attempt to meet the high burden of a stay.").

[^72]: *See id.*

[^73]: *See* 47 U.SC. § 309(j)(3)(A)and (D).