[Federal Register Volume 61, Number 86 (Thursday, May 2, 1996)]
[Notices]
[Pages 19620-19622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10615]
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FEDERAL COMMUNICATIONS COMMISSION
[FCC 96-140]
Applications for A and B Block Broadband PCS Licenses
AGENCY: Federal Communications Commission.
ACTION: Determination or application for review.
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SUMMARY: The Commission released this Memorandum Opinion and Order
(MO&O) to address an Application for Review filed by the National
Association of Black Owned Broadcasters, Percy E. Sutton, and the
National Association for the Advancement of Colored People. This MO&O
denies the application. The MO&O is necessary to answer the issues
addressed in the application. The intended affect of this action is to
resolve the issues set forth in the application.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT: John Greenspan, (202) 418-0620,
Wireless Telecommunications Bureau, Commercial Wireless Division.
SUPPLEMENTARY INFORMATION: This is the text of the MO&O, adopted March
28, 1996, released April 1, 1996. This order is available for
inspection and copying during normal business hours at the Commercial
Wireless Division Legal
[[Page 19621]]
Branch, Room 7130, 2025 M Street, N.W., Washington, D.C., and also may
be purchased from the Commission's copy contractor, International
Transcription Service, at (202) 857-3800, 2100 M Street, N.W., Suite
140, Washington, D.C. 20037.
Memorandum Opinion and Order
I. Introduction
1. The Commission has before it an Application for Review filed on
July 21, 1995 by the National Association of Black Owned Broadcasters,
Percy E. Sutton, and the National Association for the Advancement of
Colored People (collectively ``Petitioners''), and an erratum filed by
Petitioners on August 24, 1995, seeking review of an Order by the
Chief, Wireless Telecommunications Bureau (the ``Bureau'') granting the
applications filed by the auction winners of 99 broadband Personal
Communications Services (``PCS'') licenses for the A and B block
frequencies. In a separate pleading, Petitioners seek review of a
Bureau Order that declined to stay the licensing of the A and B block
winners until the licensing of the ultimate winners of the C block
auction. See Deferral of Licensing of MTA Commercial Broadband PCS,
Memorandum Opinion and Order, DA 95-1410, 1995 WESTLAW 379480 (Wireless
Telecom. Bur. June 23, 1995). We address that by a separate order
adopted today; in this Order, we deal exclusively with Petitioners'
Application for Review of the A and B Block Order.
II. Background
2. On May 12, 1995, Petitioners filed a Petition to Deny the
applications of the eighteen winning bidders in the A and B block
auction. Petitioners alleged that the Commission violated Section
309(j) of the Communications Act, 47 U.S.C. Sec. 309(j), by failing to
provide adequate opportunities for minorities to acquire PCS licenses
in the A and B blocks. Petitioners further alleged that this failure to
provide incentives has allowed a few dominant carriers to divide A and
B block PCS licenses in an unlawful territorial allocation in violation
of the antitrust laws. Petitioners contended that the distribution of
licenses in the top markets indicated a pattern of collusion by these
carriers to ``dominate the wireless telephone industry, both PCS and
cellular.''
3. The Bureau dismissed the Petition to Deny. First, the Bureau
concluded that Petitioners had failed to demonstrate standing under
Section 309(d)(1) of the Communications Act and applicable Commission
precedent. Then, treating the petition as an informal objection, the
Bureau further held that Petitioners had failed to show that a grant of
the A and B block licenses would be inconsistent with the public
interest. It rejected Petitioners' contention that the Commission had
failed to comply with 47 U.S.C. Sec. 309(j) and deemed that contention
``a belated attempt to revisit the Commission's auction rules for
licensing of the A and B blocks.'' The Bureau also rejected
Petitioners' argument that the major bidders colluded to allocate
territory among themselves.
III. Contentions of the Parties
4. Petitioners present the same contentions before the Commission
that were previously rejected by the Bureau. They allege that the
Commission has failed to comply with its statutory mandate to provide
adequate opportunities for minorities to bid for PCS licenses.
Petitioners also repeat their allegation that the Commission ``appears
to have allowed the dominant carriers to divide the PCS licenses in an
unlawful territorial allocation.'' Petitioners further dispute the
Bureau's conclusion that Petitioners' lacked standing to raise the
issues presented in its Petition to Deny.
5. In opposition, Western PCS Corporation (``Western'') alleges
that Petitioners' Application for Review is procedurally defective
because it does not specify the factors that warrant Commission review.
Further, Wirelessco, L.P. and Phillieco, L.P. argue that Petitioners
lacked standing. Several parties asserted that Petitioner's petition
claimed no acts of misconduct by them and that the petition should,
therefore, not affect their license grant. Pacific Telesis Mobile
Services (``Pacific Telesis'') accuses Petitioners of improperly
seeking reconsideration of prior rulemaking proceedings. Pacific
Telesis also argues that the Commission fully complied with its
statutory mandate by providing for the rapid deployment of services
without undue administrative delay. Finally, several parties contend
that the Bureau properly rejected Petitioners' claims of collusion.
IV. Discussion
6. We agree with Western that Petitioners' Application for Review
is procedurally defective and must be dismissed. Section 1.115(b)(2) of
the Commission's rules, 47 CFR Sec. 1.115(b)(2), requires Applications
for Review to: Specify with particularity, from among the following,
the factors which warrant Commission consideration of the questions
presented:
(i) The action taken pursuant to delegated authority is in conflict
with statute, regulation, case precedent, or established Commission
policy.
(ii) The action involves a question of law or policy which has not
previously been resolved by the Commission.
(iii) The action involves application of precedent or policy which
should be overturned or revised.
(iv) An erroneous finding as to an important or material question
of fact.
(v) Prejudicial procedural error. Petitioners' pleading is
defective because it fails to ``specify with particularity'' any of the
above subsections as grounds for granting its Application for Review.
See Chapman S. Root Revocable Trust, 8 FCC Rcd 4223, 4224 (1993).
(``Chapman''). The Commission held in Chapman that a party that fails
to identify one of the above factors in support of an application for
review will have its application dismissed. Accordingly, we are
dismissing Petitioners' Application for Review because it does not
comply with 47 CFR Sec. 1.115(b)(2). Although we are dismissing
Petitioners' pleading, we briefly will address the issues raised
therein.
7. The Bureau held that Petitioners lacked standing to challenge
the A and B Block licensees on a blanket basis as it seeks to do here.
We agree. To establish standing to file a petition to deny, the
petitioners must allege sufficient facts to demonstrate that grant of
the subject application would cause them to suffer a direct injury.
AmericaTel Corporation, 9 FCC Rcd 3993, 3995 (1994) (citing Sierra Club
v. Morton, 405 U.S. 727, 733 (1972)). The premise of Petitioners'
standing argument is that the award of licenses to the A and B block
applicants threatens their interests (or those of their members) as
potential C block licensees as well as the interests of the public. We
find, as did the Bureau, that these allegations are too contingent and
speculative to support the required finding of a direct injury causally
linked to the challenged action. First, there is no certainty that
Petitioners or any of their members will in fact participate in the C
block auction or that they will win licenses if they do. Both of these
events must occur for any injury to even be possible. Second, we have
previously held that the mere fact that a petitioner has applied to be
a licensee in the same service does not confer standing. See Pittsburgh
Partners, L.P., 10 FCC Rcd 2715 (1994), para. 4 (mere status as
applicant in one proceeding in the FM broadcast service does not confer
[[Page 19622]]
standing as a party in interest in another proceeding in the FM
broadcast service ); WIBF Broadcasting, 17 FCC 2d 876, 877 (1969)
(same).
8. In their Application for Review, Petitioners rely on the holding
in United Church of Christ v. FCC, 359 F.2d 994, 1005 (D.C. Cir. 1966)
(``UCC''). for the proposition that they have standing as
representatives of the public interest. As Pacific Telesis points out,
in UCC there were specific allegations by the party filing the petition
to deny that the broadcast station in question was ignoring the needs
of a major segment of the listening audience. In this case, Petitioners
make no allegations and no party has submitted any evidence that the A
and B block licensees will fail to provide adequate service to any
segment of the population. Petitioners' major complaint appears to be
that they would have preferred entities other than the successful
bidders to have received the A and B block licenses. This is not
sufficient to support a petition to deny. Petitioners fail to
demonstrate how they will be harmed, either as consumers or potential
bidders, by the granting of licenses to the A and B block winners.
Accordingly, we conclude, as did the Bureau, that Petitioners have not
alleged sufficient facts in this case to demonstrate that it has
standing to challenge the A and B block licenses. We agree with the
Bureau that a potential PCS bidder could allege facts sufficient to
establish standing to challenge another PCS application by showing that
grant of that application would cause them demonstrable injury. See A &
B Block Order at 5.
9. Petitioners repeat the argument previously made to the Bureau
that the Commission failed to adopt specific provisions in the A and B
block auction, which Petitioners contend is a violation of Section
309(j) of the Act. Pacific Telesis points out in opposition that
Petitioners fail to address the Bureau's holding that this argument
constitutes an untimely petition for reconsideration of the
Commission's broadband PCS auction rules rather than a valid basis for
a petition to deny. We agree. The Bureau properly concluded that the
purpose of the petition to deny process is to assess challenges to
applicants' qualifications to be Commission licensees. Petitioners'
statutory argument does not address licensee qualifications, however,
but challenges the structure of the A and B block auction itself. We
agree with the Bureau that Petitioners' argument was not a valid
petition to deny, but was instead a belated attempt to revisit the
Commission's auction rules for licensing of the A and B blocks. In the
Fifth Report and Order in Docket No. 93-253, 59 FR 37566 (July 22,
1994), the Commission decided against making special provisions for
designated entities on the A and B blocks. We determined that this
approach fully complied with Section 309(j) and affirmed this
conclusion on reconsideration more than ten months before Petitioners
filed their petition. Petitioners' attempt to challenge the rules again
through the petition to deny process is therefore untimely and
procedurally improper.
10. Petitioners also reiterate their allegation that the dominant
carriers have divided the PCS licenses in an unlawful territorial
allocation. We agree with the Bureau that Petitioners have failed to
provide evidence supporting this allegation or otherwise to demonstrate
that a grant of the A and B block applications would be inconsistent
with the public interest. Under Section 309(d)(1) of the Communications
Act, 47 U.S.C. Sec. 309 (d)(1), parties filing a petition to deny must
make specific allegations of fact sufficient to show that a grant of
the application would be prima facie inconsistent with the public
interest, convenience, and necessity. Except where official notice may
be taken, such allegations must be supported by affidavits of persons
with personal knowledge of the facts alleged. Section 309(d)(2) states
that if the pleadings and affidavits fail to raise substantial and
material questions of fact and the Commission concludes that grant of
the application would be in the public interest, the Commission shall
deny the petition. 47 U.S.C. Sec. 309(d)(2).
11. In support of their claim of territorial allocation both before
the Bureau and now before the Commission, Petitioners allege only that
three companies--AT&T Wireless PCS, PCS Primeco, and WirelessCo--won
61% of the A and B block licenses. Petitioners suggest that this
constitutes ``circumstantial evidence'' that is not only enough to
support a petition to deny, but ``a jury verdict finding a conspiracy
which violates antitrust laws.'' A petition to deny must ``contain
specific allegations of fact sufficient to show * * * that a grant of
the application would be prima facie inconsistent with [the public
interest].'' Where the Commission finds that such a showing has not
been made, it may refuse the petition to deny on the basis of ``a
concise statement of the reasons for denying the petition, which
statement shall dispose of all substantial issues raised by the
petition.'' In this instance, we find that petitioners' allegation of
territorial allocation does not constitute a showing that the grant to
the A and B block winners was prima facie inconsistent with the public
interest. We agree with the Bureau that Petitioners have failed to
raise a substantial or material question of fact based on these
allegations. First, Petitioners offer no grounds for denying the
applications of the fifteen auction winners other than AT&T, PCS
Primeco, and WirelessCo. Second, with respect to these latter three
applicants, Petitioners fail to provide any factual evidence of
collusion. Contrary to Petitioners' contention that the Bureau
improperly required a ``smoking gun,'' we agree with the Bureau's
conclusion that Petitioners must provide a modicum of a factual showing
that collusion occurred--particularly in an auction that lasted over
three months and resulted in aggregate winning bids of nearly $8
billion by 18 different parties. Petitioners introduce no evidence
showing that AT&T, PCS Primeco, WirelessCo, or any other A or B block
winner has violated any of the Commission's rules, including the
collusion rules or the rules regarding aggregation of PCS spectrum. We
also agree with Western that the bidding patterns were determined to a
large degree by the desire of individual applicants to acquire national
wireless footprints and/or to acquire markets complementing their
existing telecommunications holdings. We therefore find Petitioners'
allegation of collusion to be without merit.
V. Conclusion
12. For the reasons discussed above, we are dismissing Petitioners'
Application for Review for failure to comply with Section 1.115(b)(2)
of our rules. Although our action renders further discussion
unnecessary, we agree with the Bureau's disposition of the issues
Petitioners raised in their original Petition to Deny.
V. Ordering Clause
13. Accordingly, it is ordered pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. Sec. 154(i), and
Section 1.115(b)(2) of the Commission's Rules, 47 CFR Sec. 1.115(b)(2),
that the Application for Review filed by Petitioners on July 21, 1995,
is denied.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-10615 Filed 5-01-96; 8:45 am]
BILLING CODE 6712-01-P
