**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | WT Docket 02-55              |
|                                  | *) |                              |
| Improving Public Safety          | ** | ET Docket No. 00-258         |
| Communications in the 800 MHz    |    |                              |
| Band                             | *  | RM-9498                      |
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| Consolidating the 800 and 900    | ** | RM-10024                     |
| MHz Industrial/Land              |    |                              |
| Transportation and Business Pool | *  | ET Docket No. 95-18          |
| Channels                         | *) |                              |
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| Amendment of Part 2 of the       |    |                              |
| Commission's Rules to Allocate   | *  |                              |
| Spectrum Below 3 GHz for Mobile  | *) |                              |
| and Fixed Services to Support    | ** |                              |
| the Introduction of New Advanced |    |                              |
| Wireless Services, Including     | *  |                              |
| Third Generation Wireless        | *) |                              |
| Systems                          | ** |                              |
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| Petition for Rulemaking of the   | *  |                              |
| Wireless Information Networks    | *) |                              |
| Forum Concerning the Unlicensed  | ** |                              |
| Personal Communications Service  |    |                              |
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| Petition for Rulemaking of UT    | *) |                              |
| Starcom, Inc., Concerning the    | ** |                              |
| Unlicensed Personal              |    |                              |
| Communications Service           | *  |                              |
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| Amendment of Section 2.106 of    | ** |                              |
| the Commission's Rules to        |    |                              |
| Allocate Spectrum at 2 GHz for   | *  |                              |
| Use by the Mobile Satellite      | *) |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: January 13, 2005 Released: January 14, 2005**

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

# INTRODUCTION

1.  In this *Order*, we deny the Motion for Partial Stay of Decision
    Pending Appellate Review, filed jointly by Mobile Relay Associates
    (MRA) and Skitronics, LLC (collectively, Movants).[^1] Movants seek
    a partial stay of the Commission\'s July 8, 2004 *Report and Order*
    addressing interference to public safety communications in the 800
    MHz Band (*800 MHz R&O*).[^2] In pertinent part, the *800 MHz R&O*
    established rules to spectrally separate the mix of incompatible
    technologies that is the underlying root cause of interference to
    public safety communications.[^3] For the reasons discussed below,
    we conclude that Movants have not met the legal standard for a stay.

# BACKGROUND

2.  On July 8, 2004, the Commission adopted technical and procedural
    measures designed to address the ongoing and growing problem of
    interference to public safety communications in the 800 MHz
    band.[^4] Under the terms of the *800 MHz R&O*, the Commission
    undertook steps to expeditiously reconfigure the 800 MHz band to
    separate public safety, critical infrastructure industry (CII), and
    other non-cellular systems from Enhanced Specialized Mobile Radio
    (ESMR)[^5] systems characterized by the use of high-density cellular
    architecture.[^6] To this end, the *800 MHz R&O* requires public
    safety, CII, and other non-cellular licensees to operate in the
    lower portion of the 800 MHz band, and for ESMR carriers that
    utilize high-density cellular architecture to operate in the upper
    portion of the 800 MHz band.[^7] To the extent necessary to
    effectuate band reconfiguration, non-cellular carriers in the lower
    portion of the band, which will be used by relocated public safety
    licensees, will be relocated to comparable facilities[^8] elsewhere
    in the non-cellular portion of the band immediately above the new
    public safety segment. All relocation expenses will be paid for by
    Nextel Communications, Inc. (Nextel).[^9] Thus, the Commission has
    established a transition mechanism to minimize disruption to the
    operations of all affected 800 MHz incumbents during band
    reconfiguration, and required all associated reconfiguration costs
    to be paid for by Nextel with payment secured by a \$2.5 billion
    letter of credit.[^10] Subsequent to release of the *800 MHz R&O*,
    Movants filed a Motion for Partial Stay of Decision Pending
    Appellate Review of the Commission's *800 MHz R&O*.[^11] Several
    public safety organizations, as well as Nextel, opposed the
    Motion.[^12] []{#_Ref92687719 .anchor}

3.  On December 22, 2004 the Commission released a *Supplemental Order
    and Order on Reconsideration* (*800 MHz Supplemental Order*)
    clarifying and modifying certain aspects of the *800 MHz R&O*.[^13]
    Of particular relevance to Movants' Motion, the Commission reversed
    its earlier determination that incumbent licensees operating at
    809-809.75 MHz / 854-854.75 MHz (former channels 121-150) had to be
    relocated.[^14] We note that all of Skitronics' site-based and
    Economic Area (EA) facilities are located in this portion of the 800
    MHz band and thus need not be relocated. Moreover, the *800 MHz
    Supplemental Order* affords non-ESMR EA licensees, such as
    Skitronics, the option to relocate their EA licenses to the ESMR
    band contingent on their using cellular technology.[^15] We also
    note that some, but not all, of MRA's facilities operate on former
    channels 121-150 and thus do not have to be relocated. In the *800
    MHz Supplemental Order,* the Commission reaffirmed that interference
    to public safety and CII licensees compelled restructuring the 800
    MHz band to spectrally segregate incompatible technologies.[^16] We
    therefore address Movants' stay request to the extent that,
    notwithstanding the *800 MHz Supplemental Order*, Movants continue
    to seek relief from the Commission's actions in this proceeding.

# Movant's claims

4.  Currently Movants operate non-cellular systems in the portion of the
    800 MHz band that the *800 MHz R&O* designated for non-cellular
    operations. As noted above, Skitronics does not have to relocate its
    facilities.[^17] MRA, however, must relocate some of its facilities
    because these facilities are in the lower portion of the
    non-cellular band that has been designated for relocated public
    safety[^18] systems.[^19] Thus, MRA must relocate certain of its
    non-cellular facilities to other spectrum in the non-cellular
    portion of the 800 MHz band immediately above the public safety
    segment. Movants argue that requiring them to relocate to other
    channels in the "non-cellular" portion of the band[^20] would
    "confiscate Movants' existing spectrum and replace it with far less
    valuable spectrum...."[^21] According to Movants, the *800 MHz R&O*
    would foreclose the ability of Movants to expand and change their
    technology to digital technology (which we interpret to mean
    cellular technology, because the *800 MHz R&O* does not preclude the
    use of digital technology) at some future time of their
    choosing.[^22] Movants allege that this reduced flexibility
    decreases the value of Movants' spectrum, notably in the secondary
    market.[^23] Movants also aver that under the rules in effect prior
    to the *800 MHz Report and Order*, their incumbent site-based
    licenses in certain metropolitan and close-in suburban markets had
    potential value to other licensees, namely to geographic area
    (Economic Area) licensees that purchased the overlay "white space"
    spectrum[^24] in those markets at auction. Because their channels
    might, at some undefined time, be sold to the geographic licensee,
    Movants claim they have a vested right to remain on their current
    channels.[^25] Movants further claim that if they had known that the
    Commission would deprive them of this "vested right" by
    "confiscating" their spectrum,[^26] they would have acted
    differently in previous auctions. Thus, Movants claim, the
    Commission has engaged in retroactive rulemaking that will cause
    them economic harm.[^27]

5.  Movants also contend that the *800 MHz R&O* confers a spectrum
    windfall on Nextel and SouthernLINC[^28] because they will obtain
    unencumbered ESMR spectrum when 800 MHz band reconfiguration is
    completed.[^29] The "windfall" argument hinges on Movants' claim
    that the Commission underestimated the value of the ESMR spectrum.

6.  Furthermore, the *800 MHz R&O* would require Movants to retune or,
    in some instances, replace the mobile and portable units used by
    their subscribers. Movants claim that this would disrupt their
    operations to such an extent that they would lose customers.[^30]
    They also assert that during the retuning process, Nextel would
    launch an aggressive marketing campaign to acquire Movants'
    customers. Movants believe that Nextel would not incur a similar
    disruption of service to its customers when Nextel retunes its
    facilities to the ESMR portion of the band.[^31] They aver that the
    *800 MHz R&O* fails to compensate them for this alleged loss of
    customers, that band reconfiguration would give Nextel near monopoly
    power in the dispatch services market, and that Movants therefore
    would suffer irreparable economic harm.[^32]

# Discussion

7.  The Commission evaluates petitions for stay under well-settled
    precedent. To warrant a stay, a petitioner must demonstrate
    that: (1) it is likely to prevail on the merits; (2) it will suffer
    irreparable harm if a stay is not granted; (3) other interested
    parties will not be harmed if the stay is granted; and (4) the
    public interest favors granting a stay.[^33] We find that the
    Movants have not satisfied any of these criteria.

## Movants Have Not Shown They Would Prevail on the Merits.

8.  Movants have failed to show that they would likely prevail on
    judicial review of the *800 MHz Report and Order.* The actions the
    Commission has taken to abate interference to public safety and CII
    licensees---for the reasons stated in the *800 MHz R&O* and the *800
    MHz Supplemental Order---*are fully within the Commission's
    authority and are amply supported by a comprehensive record.[^34]
    Movants participated in the rule making proceeding that led to the
    *800 MHz R&O* and the *800 MHz Supplemental Order* and their
    arguments, many of which are repeated in their Motion, were fully
    considered but rejected as inconsistent with the Commission's
    interference abatement goals.[^35]

9.  Further, Movants substantially overstate the effect that band
    reconfiguration would have on their operations. As an initial
    matter, the *800 MHz R&O* was crafted to allow licensees, such as
    Movants, maximum flexibility consistent with ensuring the integrity
    of public safety and CII communications. Thus, Movants may convert
    to low density cellular technology, which from an interference
    perspective is much more compatible with public safety systems.[^36]
    As to Skitronics, the *800 MHz Supplemental Order* affords EA
    licensees the option to remain on their current spectrum and operate
    a low-density cellular system on a non-interference basis or
    relocate their EA licenses to the ESMR portion of the band, thus
    allowing them to provide what Movants characterize as "digital,"
    *i.e.,* cellular architecture service.[^37] In affording this latter
    option to non-ESMR EA licensees, the Commission preserved licensees'
    expectancies to the extent possible consistent with abatement of
    interference to public safety and CII licensees. Finally, although
    MRA---a site-based licensee---argues that the *800 MHz R&O*
    precludes it from offering cellular-architecture services, it has
    not claimed, much less demonstrated, that it has sufficient spectrum
    holdings at the present time to initiate a cellular architecture
    system or has any plan to do so.[^38]

10. Precedent makes clear that the *800 MHz R&O* does not retroactively
    confiscate Movants' spectrum, and that they have no "vested right"
    to remain on what they regard as more lucrative spectrum. A
    retroactive rule forbidden by the Administrative Procedure Act (APA)
    is one that alters the past legal consequences of past actions.[^39]
    Although Movants claim that they would have bid differently in prior
    auctions of geographic area licenses had they "known the Commission
    was prevaricating and would be forcing them to migrate off the
    spectrum in favor of the auction licensee,"[^40] a new rule "is not
    retroactive 'merely because it\...upsets expectations based on prior
    law.'"[^41] Many agency rulemakings affect expectations based on
    prior law, but such an effect does not, by itself, render a rule
    invalid.[^42] Commission licensees, in particular, have no vested
    right to an unchanged regulatory framework throughout their license
    term.[^43]

11. Movants' argument that band reconfiguration confers an undeserved
    windfall on Nextel is also unavailing. The *800 MHz R&O* contains a
    detailed set of calculations, to be applied at the conclusion of
    band reconfiguration, to assure equipoise between the expenses
    incurred by Nextel during band reconfiguration, the value of 800 MHz
    spectrum surrendered by Nextel, and the value of the 800 MHz and 1.9
    GHz spectrum rights that Nextel will receive.[^44] In any event,
    Nextel is uniquely qualified to assist the Commission in curing the
    interference problem.[^45] Notwithstanding Nextel's considerable
    contributions, financial and otherwise, to resolving interference,
    the *800 MHz R&O* ensures that Nextel, other licensees and the
    public are treated equitably.[^46] Finally, Movants have merely
    alleged that the Commission's spectrum valuation was defective, but
    have not pointed to either error in our methodology or defects in
    the data employed.

12. In expanding on the "prevailing on the merits" prong of the
    *Virginia Petroleum* test, courts have focused on the requisite
    "strong showing" burden imposed on a party seeking a stay. Thus,
    even when a court may believe that a party would eventually prevail
    on the merits, it requires more, *i.e.,*"that the record before us
    is of such order of probability as to mandate the stay."[^47]
    Movants' unsupported arguments on the merits fail to meet this
    standard.

## Movants Will Not Suffer Irreparable Injury

13. Movants have also failed to show that they will suffer irreparable
    injury if a stay is not granted. The standards for demonstrating
    irreparable injury are clear: "A party moving for a stay is required
    to demonstrate that the injury claimed is 'both certain and
    great.'"[^48] As is the case with injunctive relief, a stay "will
    not be granted against something merely feared as liable to occur at
    some indefinite time"; rather, the party seeking a stay must show
    that "\[t\]he injury complained of \[is\] of such imminence that
    there is a 'clear and present' need for equitable relief to prevent
    irreparable harm."[^49] Bare allegations of what is likely to occur
    are of no value since the court must decide whether the harm will in
    fact occur."[^50]

14. The basis of Movants' irreparable injury claim is that band
    reconfiguration will cause their spectrum to have less value, and
    that they would lose customers to Nextel during the band
    reconfiguration process, especially if Nextel were to initiate a
    vigorous marketing program encouraging customers to change services.
    This argument fails with respect to Skitronics, which need not be
    relocated to implement band reconfiguration.[^51] These speculative
    contentions, moreover, are wholly insufficient to support a claim of
    certain and irreparable harm, and they ignore the steps taken by the
    Commission to prevent incumbents from being harmed by band
    reconfiguration.[^52] The *800 MHz R&O* and *800 MHz Supplemental
    Order* preserve the ability of Movants to convert to newer
    technologies---although not ESMR operation---in the lower portion of
    the 800 MHz band. The *800 MHz Supplemental Order* permits
    Skitronics to remain on its current spectrum and continue serving
    its customers without any disruption whatsoever, or, should it so
    elect, to move its EA licenses to the ESMR portion of the band.
    Further, MRA's relocation will be conducted pursuant to
    long-established procedures[^53] combined with an additional layer
    of safeguards to minimize any disruption, perceived or actual, to
    MRA and its customers during the transition. Finally, although
    Movants aver that band reconfiguration will render their spectrum
    less valuable, to the extent it will not support ESMR operations
    once the band is reconfigured, we note that Movants are not ESMR
    providers and have submitted no evidence that they intended to
    convert to ESMR operation or sell their rights to another user in
    the foreseeable future. We therefore hold that Movants conjectural
    arguments regarding future lost spectrum value are inadequate to
    sustain an irreparable injury claim.

15. We also find Movants' prediction of a mass exodus from their systems
    to Nextel's when band reconfiguration is underway to be speculative
    and unpersuasive. Movants have provided no support for their
    conjecture that Nextel might conduct a marketing program that would
    succeed in attracting Movants' customers who otherwise would not
    switch carriers. As Nextel points out, Movants offer localized,
    low-cost, traditional SMR dispatch services to small, regional
    businesses, whereas Nextel's high-density cellular network offers a
    broad range of nationwide and international wireless communications
    services to the general public.[^54] Moreover, Movants have not
    shown that they would lose a substantial portion of their customer
    base when they relocate to new facilities. Thus, Movants have also
    failed the second prong of the *Virginia Petroleum* test because of
    their wholly speculative claims of irreparable injury.

## A Stay Would Injure Other Parties and is Contrary to the Public Interest

16. In the instant matter, the final two prongs of the *Virginia
    Petroleum* test are so interrelated as to merit treating them
    together. We find that grant of a stay would both harm other parties
    and be contrary to the public interest because it would prevent the
    Commission from achieving its core goal of abating interference to
    public safety and CII communications. The record in this proceeding
    overwhelmingly demonstrates that the interference problem is real,
    growing, and a threat, not only to the safety of first responders,
    but also to the citizens whose lives and property they are charged
    to protect. We note, but reject, Movants' claim that unacceptable
    interference may satisfactorily be abated during the pendency of an
    appeal by application of "Best Practices." Our *800 MHz R&O* made
    clear that experience with Best Practices showed them to be less
    than effective in many cases and that they had such high
    transactional costs as to render them unaffordable for public safety
    agencies, absent prompt reconfiguration of the 800 MHz band.[^55]
    Further, the Best Practices on which Movants rely are a reactive
    solution that addresses interference *after* it occurs.[^56] The
    Commission recognized that "it would be scant consolation for a
    public safety officer subjected to a life-threatening communications
    failure to know that he or she could report a problem so that
    technical fixes could be applied after the fact."[^57] Therefore,
    were a stay granted, there would be palpable -- even
    life-threatening -- harm to both public safety agencies and to the
    public as a whole resulting from continued and unabated interference
    to public safety and CII systems.

17. Movants also assert that high implementation costs associated with
    band reconfiguration and the supposed likelihood that the *800 MHz
    R&O* will be overturned by the courts on appeal militate in favor of
    a stay.[^58] Their theory is that if a court halted band
    reconfiguration in mid-course, the nation would be left with
    incompatible band plans in different areas of the country, thus
    exacerbating the interference problem.[^59] This theory, of course,
    hinges on Movants' claim that they likely would prevail on the
    merits in a judicial appeal, which we have rejected above. Moreover,
    Movants' argument is entirely speculative as to the remedy a court
    might fashion on appeal.

# conclusion

18. For the reasons explained above, we find that Movants have provided
    no sustainable reason for reversing the Commission's public interest
    findings. We believe granting a stay would only operate to delay the
    public interest benefits the Commission articulated in the *800 MHz
    R&O*, contravene the Commission's goals in this proceeding and
    undermine the Commission's accomplishment of its mandate to promote
    safety of life, health and property through radio communications
    under the Communications Act, as amended.[^60] Accordingly, as
    precedent dictates, we conclude that Movants have wholly failed the
    *Virginia Petroleum* test for grant of a stay and deny their *Motion
    for Stay Pending Appellate Review.*

# ORDERING CLAUSES

19. Accordingly, IT IS ORDERED pursuant to the authority of Section 4(i)
    of the Communications Act of 1934, as amended, 47 U.S.C. § 154(i),
    and sections 1.41 and 1.43 of the Commission's Rules, 47 C.F.R. §§
    1.41, 1.43 that the Motion for Partial Stay of Decision Pending
    Appellate Review submitted by Mobile Relay Associates and
    Skitronics, LLC, in the above-captioned proceeding on November 19,
    2004, IS DENIED.

20. IT IS FURTHER ORDERED, pursuant to the authority of Section 4(i) of
    the Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    sections 1.41, 1.43 and 1.45 of the Commission's Rules, 47 C.F.R. §§
    1.41, 1.43, 1.45 that the Reply to Opposition to Motion for Partial
    Stay of Decision Pending Appellate Review submitted by Mobile Relay
    Associates and Skitronics, LLC, in the above-captioned proceeding on
    December 7, 2004, IS DISMISSED.

21. 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](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS0.131&FindType=L&AP=&RS=WLW4.11&VR=2.0&FN=_top&SV=Split&MT=Westlaw),
    [0.331](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS0.331&FindType=L&AP=&RS=WLW4.11&VR=2.0&FN=_top&SV=Split&MT=Westlaw).

FEDERAL COMMUNICATIONS COMMISSION

Michael J. Wilhelm

Chief,

Public Safety and Critical Infrastructure Division

Wireless Telecommunications Bureau

[^1]: Mobile Relay Associates and Skitronics, LLC., Motion for Partial
    Stay of Decision Pending Appellate Review (filed Nov. 19, 2004)
    (Motion).

[^2]: *See* Improving Public Safety Communications in the 800 MHz Band,
    WT Docket 02-55, *Report and Order, Fifth Report and Order, Fourth
    Memorandum Opinion and Order, and Order*, 19 FCC Rcd 14969 (2004) as
    amended by Erratum, DA 04-3208, 19 FCC Rcd 19651 (2004), and
    Erratum, DA 04-3459, 19 FCC Rcd 21818 (2004) (*800 MHz R&O*).

[^3]: *See 800 MHz R&O*, 19 FCC Rcd at 15045-15079 ¶¶ 142-209.

[^4]: *Id*. at 15021-15045 ¶¶ 88-141.

[^5]: For a definition of ESMR, *see id*. at 15060-15061 ¶¶ 172-173.

[^6]: For an explanation of a high-density cellular architecture system
    *see id*. at 15060-15061 ¶¶ 172-174.

[^7]: Public safety, CII, and other non-cellular licensees will operate
    below 817/862 MHz and ESMR systems will operate on spectrum above
    817/862 MHz.

[^8]: To further minimize disruption to relocating incumbents, the *800
    MHz R&O* provides that all relocating licensees shall be relocated
    to comparable facilities. *See 800 MHz R&O*, 19 FCC Rcd at 14977,
    14986, 15048, 15077 ¶¶ 11, 26, 148, 201. Comparable facilities are
    those that will provide the same level of service as the incumbent's
    existing facilities with transition to the new facilities as
    transparent as possible to the end user. *Id*. at 15077 ¶ 201.

[^9]: In exchange for Nextel's spectral and financial contributions to
    800 MHz band reconfiguration the Commission will modify Nextel's
    license to reflect ten megahertz of spectrum in the 1.9 GHz band.
    *Id*. at 14974-5 ¶ 5.

[^10]: *See id*. at 14987 ¶ 30. The Commission subsequently clarified
    that Nextel may secure its \$2.5 billion commitment to fund band
    reconfiguration by the use of a single letter of credit or multiple
    letters of credit. *See* note Error: Reference source not found
    *infra* *citing 800 MHz Supplemental Order* at para. 20.

[^11]: Specifically, Movants did not seek a stay of the effectiveness of
    rule changes pertaining to interference protection; nor the rule
    allowing 900 MHz Private Land Mobile Radio Service licensees to
    convert their licenses to Specialized Mobile Radio/Commercial Mobile
    Radio Service (*i.e.,* Part 22; revised Section 90.621(f); new
    Sections 90.672 through 90.675). However, Movants request that all
    Commission rules that require licensees, such as Movants, to move
    from their current frequencies, and the rules that restrict
    high-density cellular operations below 816 MHz be stayed pending
    appellate review. Motion at n.1.

[^12]: *See* The Association of Public-Safety Communications-Officials,
    International, Inc., International Association of Chiefs of Police,
    International Association of Fire Chiefs, Inc., Major Cities Chiefs
    Association, Major County Sheriff's Association, and National
    Sheriff's Association, Opposition to the Motion for Partial Stay,
    Nov. 24, 2004 (APCO Opposition); Nextel, Opposition to Motion for
    Partial Stay, Nov. 26, 2004 (Nextel Opposition). We also observe
    that Movants filed a Reply to Oppositions on Dec. 7, 2004. *See*
    Reply to Oppositions to Motion for Partial Stay of Decision Pending
    Appellate Review, filed by MRA and Skitronics (Dec. 7, 2004).
    Section 1.45(d) of the Commission's Rules, however, provides that
    "\[r\]eplies to oppositions \[to a request for stay of any order\]
    should not be filed and will not be considered." 47 C.F.R. §
    1.45(d). Movants have failed to show why the Commission should waive
    its rules to allow the filing of their reply. Accordingly, we
    dismiss the reply and, pursuant to Section 1.45(d) of the Rules, we
    will not consider the arguments raised therein.

[^13]: *See* Improving Public Safety Communications in the 800 MHz Band,
    WT Docket 02-55, *Supplemental Order and Order on Reconsideration*,
    FCC 04-294 (Dec. 22, 2004) (*800 MHz Supplemental Order*).

[^14]: *See* *id.* at ¶ 61 (providing that non-public safety and CII
    incumbents may remain on new channels 231-260, formerly channels
    121-150).

[^15]: *See id.* at ¶¶ 79-81.

[^16]: *See, e.g., id*. at ¶ 81.

[^17]: Skitronics is licensed to operate on former channels 121-150.
    These channels are not designated for NPSPAC licensees, hence
    Skitronics facilities need not be relocated. *See* *800 MHz
    Supplemental Order* at ¶ 61*.*

[^18]: These licensees currently occupy spectrum at 821-824 MHz /
    866-869 MHz, the so-called "NPSPAC Channels." *See* In the Matter of
    Development and Implementation of a Public Safety National Plan and
    Amendment of Part 90 to Establish Service Rules and Technical
    Standards for Use of the 821-824/866-869 MHz Bands by the Public
    Safety Services, GEN. Docket No. 87-112, *Report and Order*, 3 FCC
    Rcd 905 (1987).

[^19]: MRA and others currently occupy channels in the 806-809 MHz /
    851-854 MHz portion of the 800 MHz spectrum where the NPSPAC
    licensees will be relocated.

[^20]: Relocating licensees would be relocated to "non-cellular"
    channels in the 809-816 MHz / 854-861 MHz portion of the 800 MHz
    spectrum.

[^21]: Motion at 4.

[^22]: *Id*. at 2, 4-12, n.3. Movants contend that they will have to
    forever forgo implementing digital technology if reconfiguration is
    implemented. *Id*. at n.3.

[^23]: *Id*. at 4-5.

[^24]: "White space" spectrum refers to spectrum not occupied by
    incumbent licensees in a given market.

[^25]: *Id* at 10-11. By way of background, MRA holds site-based SMR
    licenses in certain markets and Skitronics holds site-based SMR and
    EA licenses in certain markets, not necessarily the same market. The
    Commission in Auction Nos. 34 and 36 auctioned geographic overlay
    (*e.g.*, EA) licenses in these markets. There are 176 U.S. Economic
    Areas. As a result, the auction winner, obtained "white space"
    spectrum, while incumbents, such as MRA, in the lower 230 SMR
    channels were grandfathered, thus precluding the geographic area
    (EA) licensee from relocating these incumbents. *Id*. at 6-12.

[^26]: *Id*. at 11.

[^27]: *Id*.

[^28]: SouthernLINC is a Nextel competitor operating in the Southeast
    United States.

[^29]: Motion at 6-10.

[^30]: *Id*. at 12-14. Without a stay Movants predict that they will
    lose approximately seventy-five percent of their customers and
    ultimately their business because they purportedly will have to
    relocate their operations twice: first under the terms of the *800
    MHz R&O* and again "when the Commission\'s Order is ultimately
    overturned." *Id*. Movants base their allegation of drastic customer
    turnover to MRA's previous relocation from the 800 MHz band to the
    470-512 MHz band in the competitive California dispatch market.
    *Id*. In this regard, we note MRA's previous relocation was a
    voluntary retuning and not occasioned by Commission action. In this
    regard we note that the Commission has previously mandated the
    relocation of 800 MHz incumbents, subject to certain procedural
    steps, without untoward effect to relocating incumbents. *See*
    *Public Safety Order*, 19 FCC Rcd 15048 ¶ 148. 47 C.F.R. § 90.699; ¶
    14, *infra*.

[^31]: *See* Motion at 12-14.

[^32]: *Id*. at 12.

[^33]: *Virginia Petroleum Jobbers Ass'n v. FPC*, 259 F.2d 921, 925
    (D.C. Cir. 1958) (*Virginia Petroleum)*; *see also Washington
    Metropolitan Transit Comm'n v. Holiday Tours, Inc*., 559 F.2d 841
    (D.C. Cir. 1977)

[^34]: *See 800 MHz R&O*, 19 FCC Rcd at 15010-15021 ¶¶ 62-87.

[^35]: *See, e.g.,* Comments of MRA/Skitronics (Dec. 2, 2004); Comments
    of MRA/Skitronics (Oct. 22, 2002); Comments of MRA/Skitronics (Feb.
    10, 2003); Comments of MRA/Skitronics (Sept 23, 2002); Comments of
    MRA/Skitronics (Aug. 7, 2002).

[^36]: *See 800 MHz R&O*, 19 FCC Rcd at 15060-61¶¶ 172-173.

[^37]: *See 800 MHz Supplemental Order* at ¶¶ 79-81. Licensees
    relocating to the ESMR portion of the band would have to use
    cellular technology; otherwise, allowing non-cellular operations in
    the ESMR band would subject non-cellular operators to severe levels
    of interference and would be inconsistent with the Commission's
    determination that spectral separation of cellular and non-cellular
    technology is essential to its interference abatement goals. *See
    id*. at ¶ 81.

[^38]: *See* Nextel Opposition at 10, n.26.

[^39]: *See Bowen v. Georgetown Univ. Hospital*, 488 U.S. 204,
    [219-220](http://web2.westlaw.com/find/default.wl?DB=780&SerialNum=1988157822&FindType=Y&ReferencePositionType=S&ReferencePosition=219&AP=&RS=WLW4.11&VR=2.0&FN=_top&SV=Split&MT=Westlaw)
    (1988) (J. Scalia concurring) (rules are retroactive if they \"alter
    the past legal consequences of past actions\" or \"change what the
    law was in the past,\" not simply because they \"affect\" past
    transactions (emphasis in original).

[^40]: Motion at 11.

[^41]: *DirectTV,* [*Inc. v. FCC*, 110 F.3d 816, 826 (D.C. Cir.
    1997)](http://web2.westlaw.com/find/default.wl?DB=506&SerialNum=1997086876&FindType=Y&ReferencePositionType=S&ReferencePosition=826&AP=&RS=WLW4.11&VR=2.0&FN=_top&SV=Split&MT=Westlaw)
    (quoting [*Landgraf* *v.* *USI Film Products*, 511 U.S. 244, 269,
    114 S. Ct. 1483, 1499
    (1994)](http://web2.westlaw.com/find/default.wl?DB=708&SerialNum=1994092115&FindType=Y&ReferencePositionType=S&ReferencePosition=1499&AP=&RS=WLW4.11&VR=2.0&FN=_top&SV=Split&MT=Westlaw)).
    "Even uncontroversially prospective statutes may unsettle
    expectations and impose burdens on past conduct: a new property tax
    or zoning regulation may upset the reasonable expectations that
    prompted those affected to acquire property; \...." *Id*. *quoting*
    *Landgraf*, 511 U.S. at 270 n.24.

[^42]: *See, e.g.*, *Chemical Manufacturers Ass'n v. EPA*, 869 F.2d
    1526, 1536 (D.C. Cir. 1989) ("It is often the case that a business
    will undertake a certain course of conduct based on the current law,
    and will then find its expectations frustrated when the law changes.
    This has never been thought to constitute retroactive rulemaking,
    and indeed most economic regulation would be unworkable if all laws
    disrupting prior expectations were deemed suspect.").

[^43]: *See FCC v. National Citizens Comm. for Broadcasting*, 436 U.S.
    775 (1978) (upholding prospective regulations limiting multi-media
    ownership under the FCC\'s general rulemaking powers, including
    requirement for divestiture as a condition for license renewal);
    *Committee for Effective Cellular Rules v. FCC*, 53 F.3d 1309,
    1316-17 (D.C. Cir. 1995) (in upholding FCC rules amending the
    technical standards for determining reliable cellular service,
    resulting in restrictions on the areas served by existing cellular
    providers, the court sustained the Commission\'s right to modify
    license provisions through a notice and comment rulemaking); *WBEN,
    Inc. v. United States*, 396 F.2d 601, *cert. denied*, 393 U.S. 914
    (1968) (upholding license modifications that limited predawn AM
    broadcasting rights of \"daytimer\" licensees that previously had
    some of the more ample privileges granted to \"fulltimer\"
    licensees).

[^44]: We note that, given the risks attendant on implementing band
    reconfiguration, Nextel may incur a net loss if the cost of band
    reconfiguration and clearance of the 1.9 GHz spectrum exceeds the
    value of the 1.9 GHz spectrum. *See 800 MHz R&O*, 19 FCC Rcd at
    15082 ¶ 214.

[^45]: *See id*. at 15081 ¶ 211. In addition Nextel is the only
    nationwide ESMR licensee with 800 MHz spectrum holdings sufficient,
    when surrendered, to provide public safety with additional 800 MHz
    spectrum for its expanded operations -- another important goal of
    the instant proceeding. *See id*. 14972, 14975 at ¶¶ 2, 5.

[^46]: *See id*. at 14575 ¶ 5.

[^47]: *North Atlantic Westbound Freight Ass\'n v. Federal Maritime
    Commission,* 397 F.2d 683, 685 (D.C. Cir. 1968).

[^48]: *Wisconsin Gas Co. v. FERC*, 758 F.2d 669, 674 (D.C. Cir. 1985)
    (A party attempting to show irreparable harm must show that the
    alleged harm is "both certain and great; \... actual and not
    theoretical....Bare allegations of what is likely to occur" are not
    sufficient, because the test is whether the harm "will in fact
    occur."). *Id*.

[^49]: *Id*., *citing Connecticut v. Massachusetts*, 282 U.S. 660, 674
    (1931) and *Ashland Oil, Inc. v. FTC*, 409 F. Supp. 297, 307
    (D.D.C.), *aff'd* 548 F.2d 977 (D.C. Cir. 1976.)

[^50]: *Id*.

[^51]: *See* para. [2](#_Ref92687719), n.Error: Reference source not
    found, *infra*.

[^52]: *See 800 MHz R&O* 19 FCC Rcd at 14972-3 ¶ 2, 15048 ¶ 148.

[^53]: *See* 47 C.F.R. § 90.699.

[^54]: *See* Nextel Opposition at 8-10.

[^55]: *800 MHz R&O*, 19 FCC Rcd at 14980-82 ¶¶ 17-18.

[^56]: *Id.* at 15027 ¶ 101.

[^57]: *Id.* at 15036 ¶ 119.

[^58]: Motion at 15-16.

[^59]: We recognized in the *800 MHz R&O* that piecemeal band
    reconfiguration was undesirable and therefore required Nextel to
    obtain a letter of credit to ensure that band reconfiguration would
    be accomplished, nationwide, regardless of any changes in Nextel's
    financial condition. *See 800 MHz R&O,* 19 FCC Rcd at 15067 ¶¶
    181-182.

[^60]: *See* 47 U.S.C. § 151.