Jul 5, 2006 5:29 PM, By Donny Jackson

A federal appeals court yesterday ruled that the FCC can auction 90 MHz of advanced wireless spectrum as planned beginning Aug. 9, rejecting a petition from small businesses to delay the auction until the commission change new rules regarding regulations affecting smaller bidders.

On June 28, a three-judge panel of the Third Circuit Court of Appeals heard oral arguments in a request from three small businesses to stay the auction. The petition was filed because the small businesses claim that new FCC rules designed to keep smaller bidders from acting as agents for large carriers undermines the FCC’s “designated entity” program designed to encourage small-carrier participation in auctions.

Last week's court order rejected the notion that the auction should be delayed.

“We are pleased the advanced wireless auction will proceed on schedule furthering the goal of providing new and better wireless services to American consumers,” FCC spokesman David Fiske said in a prepared statement.

In the August auction, the FCC will receive bids for licenses in the 1710-1755 MHz band and the 2110-2155 MHz band. Among existing carriers, spectrum-needy T-Mobile is expected to be the most aggressive bidder, according to most industry analysts. In addition to existing carriers, many well-known newcomers to the wireless space—Google, Time Warner and Microsoft are names being mentioned in the media—may choose to participate.

Although the court declined to approve the stay request, it will rule on the FCC’s new designated-entity rules when the merits of the case are heard at a later time, according to an FCC source.

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