Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of the Application | * | FCC File Nos. 9507932 and    |
| of                               | * | 9600033                      |
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| HiCap Networks, Inc.             | * |                              |
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| Request for Reinstatement *Nunc  |   |                              |
| Pro Tunc* and/or                 | * |                              |
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| Stay of Processing Action        | ) |                              |
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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:

# Introduction

1.  This *Order* addresses two requests filed by HiCap Networks, Inc.
    (HiCap) on October 1, 1999[^1] to reinstate *nunc pro tunc* the
    above-captioned applications or, in the alternative, stay the
    dismissal[^2] of the application. For the reasons set forth below,
    we deny the request.

# Background

2.  *Harrisburg Application*. On May 24, 1995, two applications filed by
    WinStar Wireless, Inc. (WinStar) seeking authorization to operate a
    point-to-point microwave station on the 38.6-40.0 GHz (39 GHz) band
    in the Harrisburg, Pennsylvania area were placed on public
    notice.[^3] On June 6, 1995, TCO Network Services filed an
    application seeking authorization to operate a point-to-point
    microwave station on the 39 GHz band in the Harrisburg, Pennsylvania
    area.[^4] On July 24, 1995, HiCap Networks, Inc. (HiCap) filed an
    application seeking authorization to operate a point-to-point
    microwave station on the 39 GHz band in the Harrisburg, Pennsylvania
    area.[^5] On July 25, 1995, No Wire. L.L.C. filed an application for
    authorization to operate a point-to-point microwave station in the
    39 GHz band in the Harrisburg, Pennsylvania area. Each of the
    applications were mutually exclusive with one another.

3.  *Palm Springs Application*. On February 15, 1995, an application
    filed by GHz Equipment Company (GEC) seeking authorization to
    operate a point-to-point microwave station on the 39 GHz band in the
    area of Palm Springs, California was placed on public notice.[^6]
    The cut off-date for competing applications was April 17, 1995. On
    October 2, 1995, HiCap filed an application for authorization to
    operate a point-to-point microwave station in the 39 GHz band in the
    area of Palm Springs, California.[^7] A portion of the HiCap Palm
    Springs application sought authorization to operate on facilities in
    the 39150-39200 MHz band which overlapped with GEC's application.
    The other portion of the HiCap Palm Springs application sought
    authorization to operate on facilities in the 39850-39900 MHz band.

4.  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.[^8] 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."[^9] 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."[^10] 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.[^11]

5.  On September 8, 1999, the Public Safety and Private Wireless
    Division (Division) released an *Order* dismissing HiCap's
    Harrisburg application because it was mutually exclusive with
    applications filed by WinStar, No Wire and TCO and the mutual
    exclusivity was not resolved as of December 15, 1995.[^12] On
    October 19, 1999, the Division's Licensing and Technical Analysis
    Branch (Branch) dismissed HiCap's Palm Springs application.[^13] The
    mutually exclusive portion of the Palm Springs application had been
    filed after the sixty-day cut-off period created by the GEC
    application, thus, pursuant to Section 101.45(b) of the Commission's
    Rules, it was untimely.[^14] The remaining portion of the
    application was dismissed because that portion had not satisfied the
    thirty-day public notice requirement as of November 13, 1995.[^15]

# Discussion

6.  HiCap's requests make similar arguments, so we shall address them
    collectively. HiCap notes that it has filed an appeal seeking
    judicial review of the Commission's 39 GHz orders.[^16] HiCap 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."[^17]
    HiCap argues that, given the pendency of an appeal raising issues
    determinative to the resolution of his application, the application
    should be reinstated or, in the alternative, the dismissal should be
    stayed.[^18] HiCap 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."[^19]

7.  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.[^20] 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."[^21] We are not persuaded that the
    types of injuries HiCap mentions are sufficient to warrant a stay.
    Anticipated economic loss "does not, in and of itself, constitute
    irreparable harm."[^22] Likewise, HiCap 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.[^23] Therefore, we find that HiCap has not shown
    any injury warranting a stay.[^24]

8.  In addition, we find HiCap's alternate request that we reinstate its
    applications until its judicial appeal is resolved effectively to be
    a restatement of his request for a stay, so we deny that request, as
    well. Moreover, reinstating HiCap's applications 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."[^25] Further, we believe that the Bureau addressed this
    matter in its November 23, 1999, decision.

# Ordering Clauses

9.  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 9507932 filed on
    October 1, 1999, by HiCap Networks, Inc. IS DENIED.

10. IT IS FURTHER 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 9600033 filed on
    October 1, 1999, by HiCap Networks, Inc. IS DENIED.

11. 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]: *See* Letter from Walter H. Sonnenfeldt, counsel for HiCap
    Networks, Inc., to D'wana R. Terry, Chief, Public Safety and Private
    Wireless Division regarding FCC File No. 9507932 (filed Oct. 1,
    1999) (Harrisburg Request); Letter from Walter H. Sonnenfeldt,
    counsel for HiCap Networks, Inc., to Mary M. Shultz, Chief,
    Licensing and Technical Analysis Branch, Public Safety and Private
    Wireless Division regarding FCC File No. 9600033 (filed Oct. 1,
    1999) (Palm Springs Request).

[^2]: *See* No Wire, L.L.C, *Order on Reconsideration*, 14 FCC Rcd 15275
    (1999) (*Harrisburg Order*); Letter from Mary M. Shultz, Chief,
    Licensing and Technical Analysis Branch, Public Safety and Private
    Wireless Division to HiCap Networks, Inc. (August 27, 1999) (Palm
    Springs Dismissal Letter).

[^3]: FCC File No. 9504888, 9504865. *Public Notice*, Report No. 1136
    (rel. May 24, 1995).

[^4]: FCC File No. 9506013. *Public Notice*, Report No. 1140 (rel. June
    21, 1995).

[^5]: FCC File No. 9507932. *Public Notice*, Report No. 1147 (rel. Aug.
    9, 1995).

[^6]: FCC File No. 9501317. *Public Notice*, Report No. 1122 (rel. Feb.
    15, 1995).

[^7]: FCC File No. 9600033.

[^8]: 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*).

[^9]: *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*).

[^10]: 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*).

[^11]: *Id.* at 12450-12452 ¶ 44.

[^12]: *See Harrisburg Order*, 14 FCC Rcd at 15277-78 ¶ 6.

[^13]: Palm Spring Dismissal Letter at 1.

[^14]: 47 C.F.R. § 101.45(b).

[^15]: Palm Springs Dismissal Letter at 1.

[^16]: *See Bachow Communications, Inc.* *v. FCC*, Case No. 99-1346
    (consolidating Case Nos. 99-1361 and 99-1362) (D.C. Cir. 1999).

[^17]: See Harrisburg Request at 2; Palm Springs Request at 2.

[^18]: *Id*.

[^19]: *Id.*

[^20]: *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).

[^21]: 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).

[^22]: *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").

[^23]: *See* 47 U.S.C. § 402(h).

[^24]: 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.

[^25]: *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.