FEDERAL COMMUNICATIONS COMMISSION ET AL.
v.
RADIOFONE, INC.
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The FCC sought to vacate a stay that the Court of Appeals had entered to prevent a nationwide electromagnetic spectrum auction pending resolution of Radiofone's challenge to FCC regulations barring it from bidding on certain licenses. Justice Stevens, acting as Circuit Justice, granted the FCC's application, holding that allowing the auction to proceed would not moot Radiofone's challenge or prevent the Court of Appeals from providing appropriate relief if Radiofone prevailed on the merits, and that the public harm from postponing the auction outweighed any potential harm to Radiofone.
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Justice Stevens,
Circuit Justice.
The Federal Communications Commission (FCC) has applied to me in my capacity as Circuit Justice for the Sixth Circuit to vacate a stay entered by the Court of Appeals on October 18,1995. The stay prevented the FCC from taking any action in furtherance of a nationwide auction of a portion of the electromagnetic spectrum. Apparently, the Court of Appeals feared that completion of the auction would moot a challenge pending before it to FCC regulations that prevent respondent from bidding for 3 of the 493 licenses available. I am persuaded, however, that allowing the national auction to go forward will not defeat the power of the Court of Appeals to grant appropriate relief in the event that respondent overcomes the presumption of validity that supports the FCC regulations and prevails on the merits. I am also persuaded that the harm to the public caused by a nationwide postponement of the auction would outweigh the possible harm to respondent. I should point out that because respondent has not filed an opposition to the application, my opinion is based on the factual representations in the FCC’s papers.
Accordingly, the application to vacate the stay is granted.