Federal Communications Commission DA 11-1846
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
County of Genesee, New York
and
Sprint Nextel Corp.
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WT Docket No. 02-55
Mediation No. TAM-43102
ORDER
Adopted:  November 3, 2011 Released: November 3, 2011
By the Deputy Chief, Policy and Licensing Division, Public Safety and Homeland Security Bureau:
1. By this Order, we dismiss the Motion for Leave to Intervene (Motion), filed October 11, 
2011 by Oakland County, Michigan (Oakland).1 Oakland seeks intervenor status in the captioned 
proceeding pursuant to Section 1.106(b)(1) of the Commission’s rules.2 We also dismiss Oakland’s 
petition for reconsideration of the Public Safety and Homeland Security Bureau’s (Bureau) Memorandum 
Opinion and Order in the Genesee County, New York, proceeding.3
I. BACKGROUND
2. On September 9, 2011, the Bureau released a Memorandum Opinion and Order in the 
captioned proceeding in which it determined that the County of Genesee, New York (Genesee) received 
“comparable facilities” when the 800 MHz Transition Administrator (TA) assigned Genesee replacement 
frequencies separated by less than 1 MHz from the lower edge of the ESMR Band.4 Oakland argues that 
it is similarly situated to Genesee to the extent it is an 800 MHz public safety licensee located in the 
Canada border area and the TA has assigned Oakland replacement frequencies separated by less than 1 
MHz from the lower edge of the ESMR band.  Oakland submits, therefore, that it meets the 
“aggrieved/adversely affected” test for standing.5 Oakland asserts that it is entitled to intervention 
because “[t]he Commission has a long history of granting intervention requests when a third party is 
adversely affected by a Commission decision.”6
  
1 Sprint Nextel Corp. filed an opposition to the Oakland Motion on Oct. 21, 2011 (Opposition).  
2 47 C.F.R. § 1.106(b)(1).   As noted infra the appropriate rule for Motions to Intervene is 47 C.F.R. § 1.223.
3 County of Genesee, New York and Sprint Nextel, Memorandum Opinion and Order, 26 FCC Rcd 12772 
(PSHSB 2011).
4 Both Oakland and Genesee are located in the Canada Border Region which lacks the 1 MHz guard band that 
exists in non-border areas of the United States. 
5 Motion at 3 citing Aspen FM, Inc., Memorandum Opinion and Order, 12 FCC Rcd 17852 (1997) (Aspen FM).
6 Id. citing RCN Telecom Services of California, Order on Reconsideration, 15 FCC Rcd 9438 (CSB 2000) (RCN); 
Caloosa Television Corp., Letter, 19 FCC Rcd 19556 (MMB 2004); Midwest Bell Communications, Order on 
Reconsideration, 15 FCC Rcd 11005 (WTB 2000); Pacific B’cstg of Missouri, LLC, Memorandum Opinion and 
Order, 19 FCC Rcd 10950 (2004).
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II. DISCUSSION
3. We disagree.  Section 1.223 of the Commission’s rules provides for petitions to intervene 
only in cases that have been designated for hearing.  Of the four cases cited by Oakland for the 
proposition that the Commission has a “long history” of granting intervention requests, only one – the 
staff level decision in RCN – addresses a request to intervene in a non-hearing proceeding.  That staff 
level case was effectively overruled by JNE Investments where the Commission affirmed that 
intervention requests are permitted only in hearing proceedings.7 Neither the Genesee nor Oakland 
proceedings are in hearing status.  Thus, Oakland’s motion is subject to dismissal.  However, we exercise 
our discretion to treat Oakland’s pleading, under Section 1.41 of the Commission’s rules,8 as an informal 
request to accept its Petition for Reconsideration of the Genesee Memorandum Opinion and Order.  We 
conclude that Oakland lacks standing to submit such a petition.
4. Aspen FM cited by Oakland as authority for its being aggrieved/adversely affected by the 
Genesee Memorandum Opinion and Order is inapposite here.  The facts are not remotely the same.  
Standing in Aspen FM was conferred because, and only because, the petitioner for reconsideration was a 
broadcaster that would compete with a proposed broadcast assignee for listeners in the Aspen, Colorado 
market.9 Here, however, Oakland’s only claim for standing is its apprehension that the precedent 
established by the Genesee Memorandum Opinion and Order may affect disposition of Oakland’s case 
should it come before the Public Safety and Homeland Security Bureau for de novo review.  The 
controlling Commission case here is Texas Cable and Telecommunications Assoc. v. GTE Southwest, 
Inc.,10 in which the Commission held that a party’s apprehension that its case would be adversely 
affected by precedent was not sufficient to confer standing to submit a petition for reconsideration.11
III. DECISION
5. When evaluating standing, the Commission applies “the same test that courts employ in 
determining whether a person has standing under Article III to appeal a court order: the person must 
  
7 JNE Investments, Inc. Memorandum Opinion and Order, 23 FCC Rcd 623, 627 (2008) (“The Commission's 
Rules do not provide for petitions to intervene in non-hearing cases.  Accordingly, [movant’s] motion is 
dismissed.”) (Footnote omitted.) 
8 47 C.F.R. § 1.41.
9 Aspen FM, 12 FCC Rcd at 17855, citing FCC v. Sanders Bros., 309 U.S. 470 (1940).
10 Texas Cable and Telecommunications Assoc. v. GTE Southwest, Inc., Order, 17 FCC Rcd 6261 (2002).
11 Id. at 6264, citing Shipbuilders Council of America v. United States, 868 F.2d 452, 456 (D.C. Cir. 1989) (“[W]e 
know of no authority recognizing that the mere potential precedential effect of an agency action affords a bystander 
to that action a basis for complaint.”); Boston Tow Boat Co. v. United States, 321 U.S. 632, 633 (1944) (interest in 
precedential effect not sufficient to confer standing).  See also AirTouch Paging v. FCC, 234 F.3d 815, 819 (2d Cir. 
2000), quoting Sea Land Service, Inc., 137 F.3d 640, 648 (D.C. Cir. 2008) (“mere precedential effect within an 
agency is not, alone, enough to create Article III standing, no matter how foreseeable the future litigation”); Ottawa 
County, Ohio and Sprint Nextel, Order, 26 FCC Rcd 2205 (PSHSB 2011).  (Procedurally defective petition for 
reconsideration dismissed.  Parties advised “that the expense of preparing and filing procedurally barred pleadings is 
not recoverable from Sprint as a prudent and necessary rebanding cost.”); City of Boston, Mass. and Sprint Nextel 
Corp., Order, 22 FCC Rcd 2361 (PSHSB 2007) (Boston Order).
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show (a) a personal injury ‘in fact’; (b) that the injury is fairly traceable to the challenged action; and 
(c) that it is likely, not merely speculative, that the requested relief will redress the injury.”12
6. Oakland fails all three prongs of the conjunctive test for standing.  It has not shown that it 
would suffer an injury in fact if its Motion is not granted.  If Oakland is unable to reach agreement with 
Sprint and the matter is referred to the Bureau for de novo review, Oakland’s case will be decided on its 
own facts and merits.  As Sprint points out, the Bureau disposed of a similar issue in the City of Boston
case where it dismissed third party petitions on standing grounds because “the Boston Order is limited to 
the facts presented in the record of that proceeding and does not adversely affect Petitioners.”13  
Likewise, an adverse decision, should Oakland pursue de novo review, would not be fairly traceable to 
the Genesee decision because Oakland’s case would be decided on the Oakland record; not Genesee’s. 
Finally, it is unlikely, indeed speculative, that grant of Oakland’s Motion would redress the injury that 
Oakland perceives.  Were we to grant Oakland’s motion we would have to consider an Oakland petition 
for reconsideration that does little more than reprise arguments made in a petition for reconsideration 
submitted, by the same counsel, in the Genesee proceeding.14 Considering such a petition would be an 
unnecessary drain on Commission resources. 
7. The law of the case in these de novo review proceedings is that the perceived precedential 
effect of decisions on de novo review does not create standing for third parties to submit petitions for 
reconsideration no matter how foreseeable it may be that similar issues will arise in the petitioner’s own 
case.  We so held in the Boston case, and reaffirm that principle here.  Should third parties, in the future, 
seek to petition for reconsideration on the basis that a decision on de novo review may prejudice their 
own case, such petitions will be deemed frivolous and will summarily be dismissed.  The associated costs 
in preparing such frivolous pleadings will not be Sprint’s responsibility, and the Bureau will consider 
whether such a filing was made in good faith.   
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED, that the Motion to Intervene, filed October 11, 2011 by 
Oakland County, Michigan, considered as such, IS DISMISSED.
9. IT IS FURTHER ORDERED that the Motion to Intervene, filed October 11, 2011 by 
Oakland County, Michigan, treated as a request for informal Commission action pursuant to Section 1.41 
of the Commission’s rules, IS DENIED.
10. IT IS FURTHER ORDERED that the Petition for Reconsideration filed October 11, 2011 by 
Oakland County, Michigan IS DISMISSED.
  
12 AT&T Corp. v. Business Telecom, Inc., Order on Reconsideration, 16 FCC Rcd 21750, 21751-52 (2001).
13 Sprint Opposition at 1-2, quoting Boston Order, 22 FCC Rcd at 2361.
14 Id. at 2.
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11. This action is taken under delegated authority pursuant to Sections 0.191 and 0.392 of the 
Commission’s rules, 47 C.F.R. §§ 0.191, 0.392.
FEDERAL COMMUNICATIONS COMMISSION
Michael J. Wilhelm
Deputy Chief - Policy and Licensing Division
Public Safety and Homeland Security Bureau