*Pages 1--3 from  Microsoft Word - 3640.doc*
 Federal  Communications  Commission  FCC  00-  328 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of  Application  of 
 WIRELESS  TELCO 
 Request  for  Reinstatement  Nunc  Pro  Tunc 
 and/  or  Stay  of  Processing  Action 


 ) 
 ) 
 ) 
 ) 
 ) 
 ) 


 FCC  File  No.  9510603 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  August  25,  2000  Released:  September  15,  2000 
 By  the  Commission: 
 1.  The  Commission  has  before  it  an  Application  for  Review  filed  by  Wireless  Telco  on  May 
 1,  2000.  Wireless  Telco  requests  reconsideration  of  a  March  30,  2000  Order  1  by  the  Wireless 
 Telecommunications  Bureaus  (Bureau)  Public  Safety  and  Private  Wireless  Division  dismissing  the  above-captioned 
 application  for  authorization  to  provide  service  in  the  38.  6  to  40.  0  GHz  (39  GHz)  band.  2  In  the 
 alternative,  Wireless  Telco  requests  a  stay  of  the  Order,  3  pending  the  completion  of  a  multi-  party  appeal  of 
 the  39  GHz  policies  currently  before  the  D.  C.  Circuit.  4 


 2.  We  have  analyzed  the  Application  for  Review  and  find  that  the  Commission  staff  properly 
 decided  the  matters  raised.  The  Commission  has  established  and  affirmed  a  processing  policy  concerning 
 39  GHz  channels  that  includes  the  dismissal  of  (a)  applications  that  failed  to  meet  the  thirty-  day  public 
 notice  requirement  as  of  November  13,  1995;  (b)  all  new  applications,  major  modification  applications  and 
 amendments  filed  on  or  after  November  13,  1995;  and  (c)  applications  whose  mutual  exclusivity  was  not 
 resolved  by  December  15,  1995  and  amendments  resolving  mutual  exclusivity  that  were  filed  on  or  after 
 December  15,  1995.  5  In  addition,  the  Commissions  Rules  provide  for  the  dismissal  of  mutually  exclusive 


 1  See  Wireless  Telco  Request  for  Reinstatement  Nun  Pro  Tunc  and/  or  Stay  of  Processing  Action,  Order,  15  FCC 
 Rcd  10078  (WTB  PSPWD  2000)  (March  30  th  Order). 
 2  See  Wireless  Telco,  Application  for  Review  (filed  May  1,  2000). 


 3  Id. 
 4  See  Bachow  Communications,  Inc.  v.  FCC,  Case  No.  99-  1346  (consolidating  Case  Nos.  99-  1361  and  99-  1362). 
 5  See  Amendment  of  the  Commissions  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,  18639-  45    83- 
 97  (1997),  affd,  Amendment  of  the  Commissions  Rules  Regarding  the  37.0-  38.6  GHz  and  38.6-  40.0  GHz  Bands, 
 Memorandum  Opinion  and  Order,  14  FCC  Rcd  12428,  12440-  51    19-  44  (1999). 
1
 Federal  Communications  Commission  FCC  00-  328 
 2 
 applications  and  late-  filed  competing  applications.  6  As  explained  in  the  March  30  th  Order,  on  September 
 27,  1999,  the  Public  Safety  and  Private  Wireless  Division,  Licensing  and  Technical  Analysis  Branch 
 (Branch)  dismissed  Wireless  Telcos  initial  application.  7  The  Branch  found  that  Wireless  Telcos 
 application  was  untimely  filed  because  it  conflicted  with  the  Bay  Area  application,  which  had  established  a 
 cut-  off  period  of  March  31,  1992.  8  The  Branch  therefore  dismissed  the  application  in  accordance  with 
 Section  1.  934(  f)  of  our  Rules.  9  We  now  affirm  this  decision. 


 3.  In  the  alternative,  Wireless  Telco  requests  a  stay  of  the  March  30  th  Order  10  pending  the 
 outcome  of  related  proceedings  before  the  United  States  Court  of  Appeals  for  the  District  of  Columbia.  11 
 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.  12  Wireless  Telco  argues  that 
 a  stay  of  the  March  30th  Order  would  serve  the  public  interest  by  eliminating  the  need  for  duplicative 
 litigation  and  remove  uncertainties  as  to  the  availability  of  the  subject  frequency  assignments  with  respect 
 to  the  conflicting  license  rights  that  may  attach  as  a  result  of  the  39  GHz  auction.  13  We  disagree. 


 4.  First,  the  plain  language  of  the  test  to  receive  a  stay  of  a  Commission  action  provides  that 
 a  stay  request  shall  be  granted  only  upon  a  finding  that  all  four  conditions  are  satisfied.  14  Thus,  where  any 
 one  of  the  four  conditions  is  not  satisfied,  the  subject  stay  request  will  not  be  granted.  Wireless  Telco  fails 
 to  address  the  first  three  prongs  of  this  test.  As  a  result,  Wireless  Telco  cannot  satisfy  the  requirements  for 
 a  stay. 


 5.  Second,  Wireless  Telco  argues  that  the  public  interest  benefits  support  the  grant  of  a  stay 
 in  this  matter.  Again,  we  disagree.  We  are  not  persuaded  that  Wireless  Telcos  alleged  injuries  are 
 sufficient  to  warrant  a  stay.  In  this  connection,  we  note  that  consolidating  this  matter  with  the  related 
 proceedings  before  the  court  would  not  be  duplicative.  Moreover,  if  Wireless  Telco  wholly  prevails  in  its 
 judicial  appeal  of  the  Commission's  decision,  then  we  would  forthwith  give  effect  thereto.  15  Finally,  we 


 6  See  47  C.  F.  R.    21.31  (b)(  2)(  i)  (1995);  47  C.  F.  R.    101.45(  b)(  2)(  i)  (disposition  of  mutually  exclusive 
 applications).  See  also  47  C.  F.  R.    1.934  (dismissal  of  defective  applications). 
 7  March  30  th  Order,  15  FCC  Rcd  at  10079    4  (citing  Letter  from  Mary  Shultz,  Chief,  Licensing  and  Technical 


 Analysis  Branch,  Public  Safety  and  Private  Wireless  Division,  to  Wireless  Telco  (Sept.  27,  1999)). 
 8  Id. 


 9  See  47  C.  F.  R.    1.934(  f)  (providing  for  dismissal  of  early-  or  late-  filed  applications). 
 10  Application  for  Review  at  2,  5. 
 11  See  Bachow  Communications,  Inc.  v.  FCC,  Case  No.  99-  1346  (Consolidating  Case  Nos.  99-  1361-  1362)  (D.  C. 
 Cir.  1999). 
 12  See  Virginia  Petroleum  Jobbers  Association  v.  FPC,  259  F.  2d  291  (D.  C.  Cir.  1958),  as  revised  by  Washington 


 Metropolitan  Area  Transit  System  v.  Holiday  Tours,  Inc.,  559  F.  2d  841  (D.  C.  Cir.  1977). 
 13  Application  for  Review  at  6-  7. 


 14  See  Washington  Gas  Co.  v.  FERC,  758  F.  2d  669  (D.  C.  Cir.  1985). 
 15  See  47  U.  S.  C.    402(  h). 
2
 Federal  Communications  Commission  FCC  00-  328 
 3 
 believe  that  reinstating  Wireless  Telcos  application  would  frustrate  the  goals  underlying  the  39  GHz 
 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."  16 


 6.  In  light  of  the  above,  we  find  that  Wireless  Telco  has  not  shown  an  injury  warranting 
 injunctive  relief.  17  Accordingly,  we  deny  Wireless  Telcos  request  for  a  stay  of  the  March  30  th  Order. 


 7.  We  have  analyzed  the  Application  for  Review  and  find  that  the  Commission  staff  properly 
 decided  the  matters  raised.  Therefore,  we  uphold  the  staff  decision  for  the  reasons  stated  therein.  There  is 
 no  reason  to  disturb  it. 


 8.  Finally,  Wireless  Telco  argues  that  although  it  believes  that  the  Divisions  March  30,  2000 
 Order  is  a  ministerial  extension  of  full  Commission  orders,  it  had  to  file  this  application  for  review  to 
 preserve  its  rights  of  review.  Section  5(  c)(  7)  of  the  Communications  Act  of  1934,  as  amended,  bars  direct 
 judicial  appeal  of  delegated  authority  action.  18  Thus,  we  agree  that  the  filing  of  the  application  for  review 
 was  required  to  preserve  Wireless  Telcos  rights  of  review. 


 9.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Sections  4(  i)  and  5(  c)(  5)  of  the 
 Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  155(  c)(  5),  and  Section  1.115(  g)  of  the 
 Commission's  Rules,  47  C.  F.  R.    1.115(  g),  the  Application  for  Review  filed  by  Wireless  Telco  on  May  1, 
 2000  IS  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Magalie  Roman  Salas  Secretary 


 16  July  29  MO&  O,  14  FCC  Rcd  at  12437-  38;  Amendment  of  the  Commissions  Rules  Regarding  the  37.0-  38.6 
 GHz  and  38.6-  40.0  GHz  Bands,  Memorandum  Opinion  and  Order,  12  FCC  Rcd  2910,  2917    15  (1997); 
 Amendment  of  the  Commissions  Rules  Regarding  the  37.0-  38.6  GHz  and  38.6-  40.0  GHz  Bands,  Notice  of 
 Proposed  Rule  Making  and  Order,  11  FCC  Rcd  4930,  4988-  89    121-  124  (1996). 


 17  Washington  Gas  Co.  v.  FERC,  758  F.  2d  at  669. 


 18  See  47  U.  S.  C.    5(  c)(  7). 
3