# August 26, 2002

# **DA 02-2089**

Office of the Chief Technology Officer

Government of the District of Columbia

441 4^th^ Street, N.W., Suite 930

## Washington, DC 20001

Attn: Mr. A. Richard Burke

Executive Manager, Special Wireless Projects

Dear Mr. Burke:

This order denies the request filed by the Office of the Chief
Technology Officer of the Government of the District of Columbia
("OCTO") for waiver of the Auction No. 44 short-form filing
deadline.[^1]

**Background.** On March 8, 2002, OCTO filed a petition for
reconsideration[^2] of the Commission's report and order, released
January 18, 2002, adopting allocation and service rules for the Lower
700 MHz Band.[^3] In its petition, OCTO argued that, pursuant to the
public safety radio services auction exemption of Section 309(j)(2)(A)
of the Communications Act, as amended,[^4] it should be permitted to
obtain Lower 700 MHz band licenses without competing in an auction.[^5]
On March 20, 2002, the Wireless Telecommunications Bureau ("Bureau")
released a public notice announcing the procedures, including the May 8,
2002, short-form filing deadline, for Auction No. 44, an auction of
licenses in the Lower 700 MHz band.[^6] On June 4, 2002, OCTO filed the
instant waiver request, seeking permission to file a short-form
application for Auction No. 44 after the short-form filing deadline.[^7]
On June 14, 2002, the Commission released a memorandum opinion and
order, which, *inter alia*, denied OCTO's petition for
reconsideration.[^8]

**Discussion.** It its waiver request, OCTO explains that its failure to
meet the May 8 short-form filing deadline "occurred due to \[OCTO's\]
expectation that the Commission would respond to its \[petition for
reconsideration\] in advance of the registration deadline passing."[^9]
OCTO explains further that when it realized that this expectation would
not be fulfilled, it determined that "its best interest, as well as that
of the citizens of the District of Columbia . . . would be best served
if OCTO participated as a direct bidder in \[Auction No. 44\]."[^10]

To obtain a waiver of the Commission's competitive bidding rules, an
applicant must show: (i) that the underlying purpose of the rule would
not be served, or would be frustrated, by its application in this
particular case, and that grant of the requested waiver would be in the
public interest; or (ii) that the unique facts and circumstances of the
particular case render application of the rule inequitable, unduly
burdensome, or otherwise contrary to the public interest, or that the
applicant has no reasonable alternative.[^11]

OCTO has failed to show why enforcing the short-form filing deadline
would frustrate the deadline's underlying purpose or how grant of the
waiver would be in the public interest. As the Commission has stated,
strict enforcement of the short-form filing deadline "is necessary to
ensure that applicants are treated fairly and equally; in addition, a
strict standard permits the Commission, at a specific time, to begin
processing a given, defined group of applications without the specter of
facing numerous waiver requests."[^12]

Nor has OCTO demonstrated how unique circumstances would make
enforcement of the short-form filing deadline inequitable in this case.
The lack of any attempt by OCTO to meet the short-form filing deadline
indicates that OCTO believed not just that the Commission would address
OCTO's petition for reconsideration in advance of the deadline, but also
that the Commission would grant its petition. There is no reasonable
basis for these expectations. In the *Auction No. 44 Procedures Public
Notice*, released several weeks before the short form filing deadline,
the Bureau cautioned potential bidders that pending administrative and
judicial proceedings concerning Auction No. 44 might not be resolved by
the time of the auction.[^13] Moreover, the possibility always exists
that the Commission will deny any given petition, as it eventually did
OCTO's. We do not regard OCTO's unfounded expectations as unique
circumstances that warrant waiver of the filing deadline.

Further, we note that under the Auction Reform Act of 2002,[^14] OCTO is
not eligible to participate in Auction No. 44. Among other things, the
Auction Reform Act required that the Commission alter the auction
schedule for Lower 700 MHz band licenses.[^15] For the rescheduled
auction of the C and D block licenses in that band, the Auction Reform
Act defines the entities that are eligible to bid:

The entities that shall be eligible to bid in the auction of the C-block
and D-block licenses . . . shall be those entities that were qualified
entities, and that submitted applications to participate in auction 44,
by May 8, 2002, as part of the original auction 44 short form filing
deadline.[^16]

Pursuant to this language, the Bureau announced that previously
identified qualified bidders among the entities that submitted
applications to participate in Auction No. 44 by May 8, 2002, would be
the only parties eligible to participate in the rescheduled Auction No.
44.[^17] OCTO failed to submit a short-form application by May 8, and
did not become a qualified bidder. Accordingly, OCTO is not eligible to
participate in Auction No. 44.

**Conclusion.** For the above reasons, OCTO's waiver request is denied.
This action is taken pursuant to authority delegated by Section 0.331 of
the Commission's rules, 47 C.F.R. § 0.331.

Sincerely,

Margaret W. Wiener, Chief

Auctions and Industry Analysis Division

Wireless Telecommunications Bureau

[^1]: Request for Waiver of Rules for Auction No. 44, Office of the
    Chief Technology Officer, Government of District of Columbia, filed
    via electronic mail on June 4, 2002 ("OCTO Waiver Request").

[^2]: Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52-69), GEN Docket No. 01-74, Petition for
    Reconsideration or Clarification of the Office of the Chief
    Technology Officer, Government of the District of Columbia, filed
    March 8, 2002 ("OCTO Petition").

[^3]: Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52-69), GN Docket No. 01-74, *Report and
    Order*, 17 FCC Rcd 1022 (2002).

[^4]: 47 U.S.C. § 309(j)(2)(A).

[^5]: OCTO Petition.

[^6]: Auction of Licenses in the 698-746 MHz Band Scheduled for June 19,
    2002, Notice and Filing Requirements, Minimum Opening Bids, Upfront
    Payment and Other Auction Procedures, *Public Notice*, 17 FCC Rcd
    4935 (2002) ("*Auction No. 44 Procedures Public Notice*"). In
    response to the enactment of relevant Federal legislation, this
    public notice was updated on June 26, 2002; however, the June 26
    public notice did not alter the already-passed short-form filing
    deadline. *See* Auction No. 44, Revised Schedule, License Inventory,
    and Procedures, *Public Notice*, DA 02-1491, 2 (rel. June 26, 2002).

[^7]: OCTO refers to this deadline as the registration deadline.

[^8]: Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52-69), GN Docket No. 01-74, *Memorandum
    Opinion and Order*, 17 FCC Rcd 11,613 ¶¶ 2, 32-39 (2002).

[^9]: OCTO Waiver Request at 1.

[^10]: *Id.* at 2.

[^11]: 47 C.F.R. § 1.925.

[^12]: First Auction of Interactive Video and Data Service (IVDS)
    Licenses, *Memorandum Opinion and Order*, 11 FCC Rcd 1134, 1135 ¶ 7
    (1996) (quoting the lower Wireless Telecommunications Bureau order).
    While earlier filing of OCTO's waiver request would not have changed
    our decision, we note that OCTO waited almost a month after the
    short-form filing deadline before filing its request.

[^13]: *Auction No. 44 Procedures Public Notice*, 17 FCC Rcd 4935,
    4948-49 (2002).

[^14]: Pub. L. No. 107-195, 116 Stat. 715 (2002) ("Auction Reform Act")
    (codified in part at 47 U.S.C. § 309(j)(15)).

[^15]: *See* Auction No. 44 Revised Schedule, License Inventory, and
    Procedures, *Public Notice*, DA 02-1491 (rel. June 26, 2002)
    ("*Auction No. 44 Revised Schedule Public Notice*").

[^16]: 47 U.S.C. § 309(j)(15)(C)(ii).

[^17]: *Auction No. 44 Revised Schedule Public Notice* at 2.