Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of the Application | * | FCC File No. 9503087         |
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| CAmbridge partners, inc.         | * |                              |
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| Request for Reinstatement *Nunc  |   |                              |
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**ORDER**

**Adopted: April 7, 2000 Released: April 10, 2000**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

1.  *Introduction*. This *Order* addresses a request filed by Cambridge
    Partners, Inc. (Cambridge) on February 18, 2000,[^1] to reinstate
    *nunc pro tunc* the above-captioned application or, in the
    alternative, stay the dismissal[^2] of the application. For the
    reasons set forth below, we deny the request.

2.  *Background*. On April 5, 1995, an application filed by Cambridge
    seeking authorization to operate a point-to-point microwave station
    on the 38.6-40.0 GHz (39 GHz) band in the Orlando, Florida area was
    placed on public notice.[^3] On May 25, 1995, Commco, L.L.C.
    (Commco) filed an application for authorization to operate a
    point-to-point microwave station in the 39 GHz band in the Melbourne
    Palm, Florida area.[^4] Cambridge's application was mutually
    exclusive with Commco's application.

3.  On December 15, 1995, the Commission suspended the processing of
    pending mutually exclusive 39 GHz applications and the filing of
    amendments thereto, pending the outcome of a rulemaking proceeding
    affecting this service.[^5] In a *Report and Order and Second NPRM*,
    released on November 3, 1997, the Commission stated that it would 1)
    "dismiss without prejudice all pending mutually exclusive
    applications, unless the mutual exclusivity was resolved by an
    amendment of right filed before December 15, 1995," and 2) "dismiss
    without prejudice all applications that had not been placed on
    public notice or completed the 60-day cut-off period as of November
    13, 1995."[^6] On July 29, 1999, the Commission affirmed its license
    processing rules in a *Memorandum Opinion and Order* and reiterated
    that it would "dismiss all amendments, filed on or after December
    15, 1995, including those intended to resolve mutual exclusivity
    among pending 39 GHz applications."[^7] The Commission further
    decided to dismiss as unripe "those applications for which the
    30-day public notice period was not completed by the November 13,
    1995 *Freeze Order*" date.[^8]

4.  On January 12, 2000, the Public Safety and Private Wireless
    Division, Licensing and Technical Analysis Branch (Branch) dismissed
    Cambridge's application.[^9] The application was mutually exclusive
    with Commco's application and the mutual exclusivity was not
    resolved as of December 15, 1995. [^10]

5.  *Discussion*. Cambridge notes that it has filed an appeal seeking
    judicial review of the Commission's 39 GHz orders.[^11] Cambridge
    states that one of the issues in that case is the Commission's
    treatment regarding the "the rights of applicants to resolve mutual
    exclusivity conflicts that existed after December 15, 1995."[^12]
    Cambridge argues that, given the pendency of an appeal raising
    issues determinative to the resolution of its application, the
    application should be reinstated or, in the alternative, the
    dismissal should be stayed.[^13] Cambridge contends that granting
    the requested relief would serve the public interest, convenience
    and necessity by "eliminating the need for additional duplicative
    litigation" and helping to "remove uncertainties as to the
    availability of the subject frequency assignments with respect to
    the contemplated competitive bidding process."[^14]

6.  To receive a stay of an administrative action, a party must show
    that: 1) it will suffer irreparable harm if the stay is not
    granted, 2) it is likely to prevail on the merits of its appeal, 3)
    the grant of a stay will not harm other interested parties, and 4)
    the grant would serve the public interest.[^15] As the Wireless
    Telecommunications Bureau (Bureau) explained in a recent *Order*
    denying a motion for stay of dismissals in the 39 GHz band, a vague
    assertion of irreparable harm is insufficient to justify injunctive
    relief, as is fails to demonstrate an injury that is "certain and
    great. . . not theoretical."[^16] We are not persuaded that the
    types of injuries Cambridge mentions are sufficient to warrant a
    stay. Anticipated economic loss "does not, in and of itself,
    constitute irreparable harm."[^17] Likewise, Cambridge has not
    demonstrated that the purported harm is irreparable. In this
    connection, we note that if it was to prevail in its judicial appeal
    of the Commission's order regarding the dismissal of the subject
    application, we anticipate that such relief would address the
    ultimate disposition of the application.[^18] Therefore, we find
    that Cambridge has not shown any injury warranting a stay.[^19]

7.  In addition, we find Cambridge's alternate request that we reinstate
    its application until its judicial appeal is resolved effectively to
    be a restatement of its request for a stay, so we deny that request,
    as well. Moreover, reinstating Cambridge's application would
    frustrate the goals underlying this proceeding and "could lead to
    results inconsistent with our intent . . . to update the regulatory
    structure of the 39 GHz band in light of contemporary market
    conditions."[^20] Further, we believe that the Bureau addressed this
    matter in its November 23, 1999, decision.

8.  Accordingly, IT IS ORDERED that, pursuant to Sections 154(i) and 405
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    405, and Sections 1.41 and 1.106 of the Commission's Rules, 47
    C.F.R. §§ 1.41, 1.106, the Request for Reinstatement *Nunc Pro Tunc*
    and/or Stay of Processing Action for File Number 9503087 filed on
    February 18, 2000, by Cambridge Partners, Inc. IS DENIED.

9.  This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission's Rules, 47 C.F.R. §§ 0.131,
    0.331.

    FEDERAL COMMUNICATIONS COMMISSION

D'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: Letter from Walter H. Sonnenfeldt, counsel for Cambridge Partners,
    Inc., to Mary M. Shultz, Chief, Licensing and Technical Analysis
    Branch, Public Safety and Private Wireless Division (filed Feb. 18,
    2000) (Request).

[^2]: Letter from Mary M. Shultz, Chief, Licensing and Technical
    Analysis Branch, Public Safety and Private Wireless Division to
    Cambridge Partners, Inc. (Jan. 12, 2000) (Dismissal Letter).

[^3]: FCC File No. 9503087. *Public Notice*, Report No. 1129 (rel. Apr.
    5, 1995).

[^4]: FCC File No. 9505566. *Public Notice*, Report No. 1139 (rel. Jun.
    14, 1995).

[^5]: Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz
    and 38.6-40.0 GHz Bands, *Notice of Proposed Rule Making and Order*,
    ET Docket No. 95-183, 11 FCC Rcd 4930, 4988-4989 ¶ 123 (1995) (*NPRM
    and Order*).

[^6]: *See* Amendment of the Commission's Rules Regarding the 37.0-38.6
    GHz and 38.6-40.0 GHz Bands*, Report and Order and Second Notice of
    Proposed Rulemaking*, ET Docket No. 95-183, 12 FCC Rcd 18600, 18605
    ¶ 3 (1997) (*Report and Order and Second NPRM*).

[^7]: Amendment of the Commission's Rules Regarding the 37.0-38.6 GHz
    and 38.6-40.0 GHz Bands, *Memorandum Opinion and Order*, ET Docket
    No. 95-183, 14 FCC Rcd 12428, 12440-12448 ¶ 37 (1999) (*July 29
    MO&O*).

[^8]: *Id.* at 12450-12452 ¶ 44.

[^9]: Dismissal Letter at 1.

[^10]: *Id.*

[^11]: *See Bachow Communications, Inc.* *v. FCC*, Case No. 99-1346
    (consolidating Case Nos. 99-1361 and 99-1362) (D.C. Cir. 1999).

[^12]: Request at 2.

[^13]: *Id*.

[^14]: *Id.*

[^15]: *See Virginia Petroleum Jobbers Association v. FPC*, 259 F.2d 291
    (D.C. Cir. 1958) (*Virginia Petroleum)*, *as revised by Washington
    Metropolitan Area Transit System v. Holiday Tours, Inc*., 559 F.2d
    841 (D.C. Cir. 1977).

[^16]: Amendment of the Commission's Rules Regarding the 37.0--38.6 GHz
    and 38.6--40.0 GHz Bands, *Order*, ET Docket No. 95-183, RM-8553, DA
    99-2632, ¶ 2 (WTB rel. Nov. 23, 1999) (citation omitted).

[^17]: *Wisconsin Gas Co. v. FERC*, 758 F.2d 669, 674 (D.C. Cir. 1985)
    (*Wisconsin Gas*); *see also* *Virginia Petroleum*, 259 F.2d at 925
    ("mere injuries, however substantial, in terms of money, time and
    energy necessarily expended in the absence of a stay, are not
    enough").

[^18]: *See* 47 U.S.C. § 402(h).

[^19]: Where, as here, petitioner fails to show that it will suffer
    irreparable harm in the absence of injunctive relief, we need not
    consider the other requirements for a stay. *Wisconsin Gas*, 758
    F.2d at 674.

[^20]: *July 29 MO&O,* 14 FCC Rcd at 12437-38; *Report and Order and
    Second NPRM,* 12 FCC Rcd at 2917 ¶ 15; *NPRM and Order*, 11 FCC Rcd
    at 4988-89 ¶¶ 121-124.