**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**ORDER ON RECONSIDERATION**

**Adopted: May 27, 2004 Released: May 27, 2004**

By the Deputy Chief, Wireless Telecommunications Bureau:

# Introduction

1.  We have before us a Petition for Reconsideration,[^1] filed by Myers
    Lazrus Technology Law Group ("Myers Lazrus") requesting
    reconsideration of the Wireless Telecommunications Bureau's
    ("Bureau") letter[^2] that dismissed Instapage Network, Ltd's
    ("Instapage") request for retroactive bidding credits for a
    narrowband Personal Communications Service ("PCS") license.[^3] This
    license was originally won by Insta-Check Systems ("Insta-Check") in
    the regional narrowband PCS auction ("Auction No. 3") in 1994 and
    subsequently transferred to Instapage.[^4] For the reasons set forth
    below, we dismiss the Myers Lazrus Petition.[^5]

# Background

2.  Insta-Check Systems was the high bidder on one license in Auction
    No. 3, which concluded on November 8, 1994.[^6] At that time,
    Commission rules provided a 40 % bidding credit for women- and/or
    minority-owned businesses on 10 out of the 30 available
    licenses.[^7] Insta-Check, which qualified both as a small business
    and a minority-owned business, was the winning bidder on a license
    for which no bidding credit was offered, Southern Region, Market No.
    R002 (frequency block 5).[^8] At the close of Auction No. 3, women-
    and/or minority-owned entities won all of the ten licenses for which
    a bidding credit could be applied.[^9]

3.  In 1995, the Supreme Court decided *Adarand Constructors v.
    Pena*,[^10] in which it held that any federal program wherein the
    "government treats any person unequally because of his or her race"
    must satisfy the "strict scrutiny"[^11] constitutional standard of
    review. In response to the Court's holding, but without rendering a
    decision on the constitutionality of its designated entity rules,
    the Commission decided to refrain in the future from providing
    bidding credits to women- and/or minority-owned businesses until it
    developed a record that would provide the evidentiary support
    necessary to withstand strict scrutiny review. [^12]

4.  In its November 12, 1999, Request, Instapage sought a 40% reduction
    or remedial bidding credit for the license won by Insta-Check in
    Auction No. 3.[^13] In dismissing Instapage's Request as untimely
    according to our rules, the Bureau observed that Instapage did not
    file the Request until more than five years had passed since the
    Commission had promulgated the rules for the regional narrowband PCS
    auction, the auction had concluded, and the Commission had awarded
    the license to Insta-Check.[^14] The Bureau also found that
    Instapage had waived its challenge.[^15]

5.  Myers Lazrus contends in its Petition that the Commission failed to
    provide a remedy for the alleged constitutional violation of
    offering bidding credits to women- and/or minority owned businesses,
    that the Commission should give *Adarand* retroactive effect with
    respect to Auction No. 3 and provide a remedy,[^16] that the
    Commission erred in concluding that the doctrine of waiver applied
    against Instapage,[^17] and that the remedy requested by Myers
    Lazrus is also supported by contract doctrines.[^18]

# Discussion

6.  Myers Lazrus, a law firm filing on its own behalf, requests
    reconsideration of the *Bureau* *Letter*. Although Myers Lazrus did
    not previously participate in the Instapage matter, it asserts
    standing to participate in the reconsideration under Section
    1.106(b)(1) of the Commission's rules and, alternatively, under the
    third party standing doctrine.[^19] As we explain below, Myers
    Lazrus has failed to establish standing under Section 1.106(b) and
    its alternative third party standing argument is inapplicable in
    this instance.

7.  To establish standing to file its Petition under Section 1.106(b)(1)
    of the Commission's rules, Myers Lazrus 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.[^20] To determine if a party's interests have been
    adversely affected, 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.[^21]

8.  Myers Lazrus bases its claim of standing on the Bureau's description
    of the Commission's grant of a retroactive bidding credit in the
    218-219 MHz service as non-remedial.[^22] Myers Lazrus alleges this
    description has injured it by affecting the contractual relationship
    between the law firm and its client, the Ad Hoc Coalition.
    Specifically, Myers Lazrus alleges that its compensation for
    services was based on the achievement of a remedial action in the
    218-219 MHz service.[^23] Myers Lazrus asserts that it has private,
    substantive legally protected interests in its contingency fees with
    its clients, and argues that the Bureau's characterization of the
    retroactive bidding credit as something other than remedial and the
    product of Myers Lazrus' efforts on behalf of its clients undermines
    and interferes with the law firm's contingency fee agreements.[^24]
    Myers Lazrus also alleges that the *Bureau* *Letter* interferes with
    its ability to develop contingency fee agreements with prospective
    narrowband PCS clients.[^25]

9.  The issues raised by Myers Lazrus stem from a fee dispute between an
    attorney and its client. This is not a matter regulated by the
    Commission and therefore does not form a redressable injury for
    which the Commission may provide relief.[^26] The Commission has a
    long-standing practice of not addressing matters related to private
    contractual agreements and this matter does not present any
    extenuating circumstances that would make it an exception to
    Commission practice.[^27] The Commission has previously observed,
    "private disputes are beyond our regulatory jurisdiction and must be
    resolved in a local court of competent jurisdiction."[^28] Myers
    Lazrus does not establish any of the elements for standing under
    Section 1.106(b)(1) because it fails to articulate how its interests
    have been adversely affected by the Commission in a cognizable
    manner.[^29]

10. With respect to the third party standing alternative argument, we
    note that it has been generally disfavored by the Commission.[^30]
    This is not surprising because third party standing contravenes a
    basic prudential principle that a party "generally must assert his
    own legal rights and interests, and cannot rest his claim to relief
    on the legal rights or interests of third parties."[^31] Moreover,
    to assert third party standing, Myers Lazrus must demonstrate the
    existence of some hindrance to Instapage's ability to protect its
    own interest.[^32] Myers Lazrus does not claim that Instapage
    suffers from any hindrance to its ability to protect its interest in
    this matter. Clearly nothing has prevented Instapage from pursuing
    the particular claim at issue here although such claims are now
    untimely.[^33] Myers Lazrus has failed to provide a basis to diverge
    from this principle here. Thus, it would be inappropriate to
    recognize third party standing in this instance.

11. In essence, Myers Lazrus is using the Petition for Reconsideration
    of the *Bureau* *Letter* as an opportunity to re-argue the issues
    raised by its request for a determination that it is entitled to a
    "common fund award" in connection with the 218-219 MHz service and
    the regional and nationwide narrowband PCS services.[^34] The
    request was denied initially, the Bureau affirmed on
    reconsideration, and the Commission denied an application for
    review.[^35] Subsequently, Myers Lazrus filed a petition for
    reconsideration challenging the Commission's order and at the same
    time filed a petition for review with the Court of Appeals for the
    District of Columbia Circuit.[^36] Clearly, a petition for
    reconsideration of the *Bureau* *Letter* is an inappropriate vehicle
    for a collateral attack on the *Common Fund Orders*.[^37] We,
    therefore, dismiss the Myers Lazrus Petition for lack of
    standing.[^38]

# ORDERing clauseS

12. Accordingly, for the foregoing reasons, IT IS ORDERED that the
    Petition for Reconsideration filed by Myers Lazrus Technology Group
    on August 7, 2002, IS HEREBY DISMISSED.

13. This action is taken pursuant to authority delegated by Section
    0.331 of the Commission\'s Rules, 47 C.F.R. § 0.331.

14. It is FURTHER ORDERED that copies of this Order on Reconsideration
    will be sent to Myers Lazrus Technology Law Group by certified mail,
    return receipt requested.

FEDERAL COMMUNICATIONS COMMISSION

Peter Tenhula

Acting Deputy Chief

Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration, filed by Myers Lazrus Technology Law
    Group on August 7, 2002 ("Petition").

[^2]: Letter to Thomas Gutierrez, Esquire, from Kathleen O'Brien Ham,
    Deputy Chief, Wireless Telecommunications Bureau, 17 FCC Rcd 13,289
    (2002) (*Bureau* *Letter*).

[^3]: "Informal Request for Remedial Bidding Credit," filed by Thomas
    Gutierrez on November 12, 1999 ("Request"). Since the filing of the
    Request, Instapage's license automatically terminated due to its
    failure to meet the construction notification requirement and the
    minimum coverage benchmarks pursuant to sections 1.946(c) and
    1.955(a)(2) of the Commission's Rules. Instapage Network, Ltd.,
    *Order*, 16 FCC Rcd 14,029 (2001), *aff'd on recon*, Instapage
    Network, Ltd., *Order on Reconsideration*, 17 FCC Rcd 19,083 (2002);
    *see also* Letter to Mr. Thomas Gutierrez, Esq., Attorney for
    Instapage, from Margaret W. Wiener, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, 16 FCC Rcd
    14,728 (2001) (Instapage's request for a grace period dismissed as
    moot after its licenses automatically canceled) (reconsideration
    pending).

[^4]: Insta-Check was the original licensee for the Southern Region,
    Market No. R002 (frequency block 5). "Announcing the High Bidders in
    the Auction of 30 Regional Narrowband (PCS) Licenses; Winning Bids
    Total \$490,901,787," *Public Notice*, PNWL 94-27 (rel. Nov. 9,
    1994) ("*Regional Narrowband PCS Closing PN*"). On February 14,
    1997, the Bureau approved the transfer and assignment of the Channel
    16 southern regional license from Insta-Check to Instapage. Wireless
    Telecommunications Bureau Commercial Wireless Service Information,
    Report No. LB-97-19, *Public Notice* (rel. Feb. 14, 1997).

[^5]: Petitioner's argument is nearly identical to the argument
    presented in another petition for reconsideration filed by Myers
    Lazrus that was previously dismissed for lack of standing. Weblink
    Wireless, Inc. Request for a Remedial Bidding Credit, *Order*, 16
    FCC Rcd 9420 (2001); *aff'd on recon*, Weblink Wireless, Inc.
    Request for a Remedial Bidding Credit, *Memorandum Opinion and*
    *Order*, 17 FCC Rcd 24,642, 24,647 ¶ 13 (2001) ("*Weblink MO&O*").
    *See* n.26, *infra*.

[^6]: *Regional Narrowband PCS Closing Public Notice*, PNWL 94-27 (rel.
    Nov. 9, 1994).

[^7]: Implementation of Section 309(j) of the Communications Act \--
    Competitive Bidding and Amendment of the Commission's Rules to
    Establish New Narrowband Personal Communication Services, PP Docket
    No. 93-253, *Third Memorandum Opinion and Order and Further Notice
    of Proposed Rulemaking*, 10 FCC Rcd 175, 201 ¶ 58, 215-16 ¶ 87
    (1994).

[^8]: *Regional Narrowband PCS Closing Public Notice;* 47 C.F.R. §
    24.309(b)(2) (1994).

[^9]: *Regional Narrowband PCS Closing Public Notice*; *November 29^th^
    News Release.*

[^10]: *Adarand v. Pena*, 515 U.S. 200 (1995).

[^11]: "\[A\]ll racial classifications, imposed by whatever federal,
    state, or local governmental actor, must be analyzed by a reviewing
    court under strict scrutiny. In other words, such classifications
    are constitutional only if they are narrowly tailored measures that
    further compelling governmental interests." *Id*. at 227.

[^12]: Implementation of Section 309(j) of the Communications Act --
    *Competitive Bidding, Tenth Report and Order*, 11 FCC Rcd 19,974,
    19,975-19,977, ¶¶ 1-3 (1996) ("*Competitive Bidding Tenth Report and
    Order*"); *see* Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, *Sixth Memorandum Opinion
    and Order and Further Notice of Proposed Rulemaking*, 11 FCC Rcd
    19,341, 19,369 ¶ 67 (1996) (proposed rules for the then-planned
    second IVDS auction)

[^13]: Request.

[^14]: *Bureau* *Letter*, 17 FCC Rcd at 13,290-91.

[^15]: Under the doctrine of waiver, a party with sufficient opportunity
    to raise a challenge in a timely manner, but who fails to do so, is
    deemed to have waived the challenge and is precluded from waiving it
    in subsequent proceedings. *Adelphia Communications Corp. v. FCC*,
    88 F.3d 1250, 1256 (D.C. Cir. 1996); *Northwestern Indiana Telephone
    Co., Inc. v. FCC*, 872 F.2d 465, 470 (D.C. Cir. 1989); In the Matter
    of Community Teleplay, Inc., et. al., *Order*, 13 FCC Rcd 12,426,
    12,428 ¶ 5 (WTB 1998) ("*Community Teleplay"*); *Jerome Thomas
    Lamprecht*; 7 FCC Rcd 6794, 6794 (1992).

[^16]: Petition at 13-19.

[^17]: *Id*., at 19-24.

[^18]: *Id*., at 24.

[^19]: Petition at 1-6. In order to assert third party standing: (1) the
    litigant must have suffered injury in fact, thus giving him or her
    sufficiently concrete interest in outcome of issue in dispute; (2)
    the litigant must have close relation to the third party; and (3)
    there must exist some hindrance to third party\'s ability to protect
    his or her own interests**.** *Powers v. Ohio*, 499 U.S. 400, 411
    (1991).

[^20]: 47 C.F.R. § 1.106(b)(1) provides that "any party to the
    proceeding, or any other person whose interests are adversely
    affected by any action taken by the Commission or by the designated
    authority, may file a petition requesting reconsideration of the
    action taken."

[^21]: *See* AT&T Corp., Complainant, v. Business Telecom, Inc.,
    Defendants, *Order on Reconsideration*, 16 FCC Rcd 21,750,
    21,753-21,754 ¶ 7 (2001); Chris C. Hudgins, *Order on
    Reconsideration*, 16 FCC Rcd 7941 (2001).

[^22]: Petition at 2-3. We note that the Court of Appeals for the D.C.
    Circuit recently affirmed the Commission's position that the
    retroactive bidding credit in the 218-219 MHz service was not a
    remedy for discrimination, but was instead crafted to address a
    "multi-faceted and complex set of regulatory issues." *Sioux Valley
    Rural Television, Inc. v. FCC*, 349 F.3d 667, 676 (D.C. Cir. 2003),
    *cert. denied sub nom*. *Self Communications, Inc. v. Federal
    Communications Commission*, No. 03-1181, \-- U.S.\--, \-- S. Ct.
    \--, 2004 WL 335478 (U.S., Apr. 19, 2004).

[^23]: Petition at 2.

[^24]: *Id.*

[^25]: *Id.* at 3-4.

[^26]: We note that the Bureau held that Myers Lazrus did not have
    standing to seek reconsideration of the Bureau's order dismissing
    Weblink Wireless, Inc.'s request for retroactive bidding credits
    after Myers Lazrus presented the same argument to the Bureau in that
    matter that it presents in this instance. *Weblink MO&O*, 17 FCC Rcd
    24,642, 24,647 ¶ 13.

[^27]: *See Weblink MO&O*, 17 FCC Rcd at 24,647 ¶ 13.

[^28]: *State Street Bank and Trust Company v. Arrow Communications*,
    833 F.Supp. 41 (U.S.D.C. D.Mass. 1993) (citing In re: KMJC-FM,
    Clinton, Iowa, Assignment of License, File No. BALH-921008HF,
    *Letter Ruling* (Feb. 25, 1993); *see also* *Weblink MO&O*, 17 FCC
    Rcd at 24,647 ¶ 13.

[^29]: *Weblink MO&O*, 17 FCC Rcd at 24,647 ¶ 13.

[^30]: *Id*. at 24,647 ¶ 14.

[^31]: *Warth v. Seldin*, 422 U.S. 490, 499 (1975); *Weblink MO&O*, 17
    FCC Rcd at 24,647 ¶ 14.

[^32]: *Lepelletier v. Federal Deposit Insurance Corporation*, 164 F.3d
    37, 43 (D.C. Cir. 1999) (citing *Powers v. Ohio*, 499 U.S. 411
    (1991).

[^33]: In the *Weblink MO&O*, the Commission dismissed as untimely a
    similar claim of third-party standing by Myers Lazrus. *Weblink
    MO&O*, 17 FCC Rcd at 24,647 ¶ 14.

[^34]: *See* Petition for Order to Declare a Common Fund, filed by Hill
    & Welch and Myers Keller Communications Law Group on March 8, 2000;
    *compare with* Petition.

[^35]: Hill and Welch and Myers Keller Communications Law Group, Request
    for Attorney Fees in Connection with 218-219 MHz Service Proceeding
    and Regional Narrowband PCS Service, *Order*, 15 FCC Rcd 2432
    (2000), *aff'd on recon*, Hill and Welch and Myers Keller
    Communications Law Group, Request for Attorney Fees in Connection
    with 218-219 MHz Service Proceeding and Regional Narrowband PCS
    Service, *Order on Reconsideration*, 16 FCC Rcd 9485 (2001)
    ("*Common Fund Orders*"), *application for review denied*, Hill and
    Welch and Myers Keller Communications Law Group, Request for
    Attorney Fees in Connection with 218-219 MHz Service Proceeding and
    Regional Narrowband PCS Service, 18 FCC Rcd 6909 (2003).

[^36]: Hill and Welch and Myers Keller Communications Law Group, Request
    for Attorney Fees in Connection with 218-219 MHz Service Proceeding
    and Regional Narrowband PCS Service, Petition for Reconsideration,
    filed May 1, 2003; *Myers Lazrus Technology Law Group v. FCC*, No.
    03-1154 (D.C. Cir. June 30, 2003) (order holding case in abeyance
    pending conclusion of reconsideration proceedings).

[^37]: In this instance, the expense of time and resources to address
    what appear to be frivolous arguments is a detriment to the public
    interest.  We therefore put Myers Lazarus and any others similarly
    disposed on notice, that we are prepared to impose abuse of process
    remedies should meritless petitions be filed in the future.  *See*
    Commission Taking Tough Measures against Frivolous Pleadings,
    *Public Notice*, FCC No. 96-42, 11 FCC Rcd 3030 (1996).

[^38]: *See* Applications of No Wire, LLC, *Order on Reconsideration*,
    15 FCC Rcd 10,257 (2000).