Before the
               FEDERAL COMMUNICATIONS COMMISSION
                     Washington, D.C.  20554
In the Matter of                        )
                                   )
Emergency Motion of the Wireless Cable       )    GN Docket No. 96-228
Association International, Inc. for a Stay        )
of the Wireless Communications Service       )
Auction and Associated Rules            )

                              ORDER
     Adopted:   March 31, 1997               Released:   April 1, 1997


By the Commission:

     1.   We have before us an Emergency Motion for Stay filed by the Wireless Cable Association
International, Inc. (WCA) on March 10, 1997 ("Stay Request").  WCA seeks to stay the auction
of 128 Wireless Communications Service ("WCS") licenses scheduled to begin on April 15, 1997. 
WCA relies on the four prong test for issuance of a stay set forth in Virginia Petroleum Jobbers
Ass'n v. FPC, as modified in Washington Metropolitan Area Transit Comm'n v. Holiday Tours,
Inc.  For the reasons discussed below, we hereby deny the Stay Request.

     2.   Background.  The Omnibus Consolidated Appropriations Act, 1997 directs the
Commission to reallocate the use of frequencies at 2305-2320 MHz and 2345-2360 MHz to
wireless services that are consistent with international agreements concerning spectrum
allocations, and to assign the use of such frequencies by competitive bidding pursuant to Section
309(j) of the Communications Act of 1934.  The Appropriations Act also requires the
Commission to commence the competitive bidding for the assignment of the frequencies no later
than April 15, 1997, and to conduct the competitive bidding in a manner that ensures that all
proceeds of the bidding are deposited no later than September 30, 1997.  Pursuant to the
directives of the Appropriations Act, on February 19, 1997, the Commission adopted a Report
and Order reallocating 30 megahertz of spectrum in the 2.3 GHz band and setting forth a
competitive bidding plan designed to make the spectrum available, via simultaneous multiple
round electronic auction, for any fixed, mobile, radiolocation and broadcasting-satellite (sound)
use.  The Commission also has announced that applications to participate in the WCS auction
will be due on March 25, 1997, and that competitive bidding for the WCS licenses will
commence on April 15, 1997.

     3.   The Multipoint Distribution Service ("MDS") and the Instructional Television
Fixed Service ("ITFS") operate in the 2150-2162 and 2500-2690 MHz bands.  After the
comment period for the WCS proceeding had closed, several parties filed ex parte statements
expressing concern that WCS transmissions would interfere with MDS/ITFS receiving
installations and generally requesting that the Commission limit WCS radiated power to 20 watts
equivalent isotropically radiated power ("EIRP"), unless the WCS licensee obtains an interference
consent agreement from the existing MDS and ITFS licensees.  Noting that the interference
impact of WCS operations on MDS/ITFS is unclear without a clear sense of what particular
services WCS licensees will provide and how soon these will be operational, the Commission
believed it would be premature at the time of the Report and Order to consider specific
interference protection for MDS/ITFS.  The Commission also observed that the record on this
issue was incomplete in that concerns of the MDS/ITFS community were first raised in late filed
ex parte comments and thus no potential WCS applicants had a full opportunity to respond to
those comments.  The Commission further noted that the conversion by the MDS/ITFS industry
to newer downconverters, a process that has already begun, might obviate WCS interference
problems.  The Commission therefore declined to impose any technical restrictions on WCS
licensees aimed at protecting the MDS/ITFS services unless or until it had a more precise
understanding of the nature and extent of problems that might actually arise.

     4.   On March 10, 1997, WCA filed its Stay Request, together with a Petition for
Expedited Reconsideration of the Report and Order.  The Stay Request seeks that the
Commission stay "the rules and policies adopted in the Commission's Report and Order . . . , as
well as the April 15, 1997 commencement date for the auction of [the WCS licenses], until such
time as the Commission has issued a decision on WCA's contemporaneous Petition for Expedited
Reconsideration ("Petition") of the Report and Order."  WCA's Petition seeks the imposition of
a 20 watt EIRP limit on WCS licensees prior to auction of the WCS licenses.

     5.   Discussion.  Upon examination of the Stay Request, we find that we cannot grant
WCA's motion because of the strictures imposed by the Appropriations Act.  In essence, WCA
requests that we defer the commencement date of the WCS auction -- a date that has been
statutorily prescribed.  The Appropriations Act indicates that "[t]he Commission shall commence
the competitive bidding for the assignment of the frequencies . . . no later than April 15, 1997." 
Where congressional intent is clear, the Commission has no discretion to depart from that intent. 
We believe that Congress has spoken on the precise issue in question -- the commencement date
of the WCS auction -- and the Appropriations Act does not afford us discretion to defer the
commencement of the WCS auction beyond that date.  We therefore deny WCA's Stay Request.

     6.   Conclusion.  We are unable to grant WCA the relief that it seeks because the
Appropriations Act does not afford the Commission the authority to defer the commencement
date of the WCS auction.  For this reason, WCA's Emergency Motion for Stay IS DENIED.


                              FEDERAL COMMUNICATIONS COMMISSION

                              William F. Caton
                              Acting Secretary