Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the matter of                 | *  |                              |
|                                  | *) |                              |
| Applications of Alaska Native    | ** |                              |
| Wireless, L.L.C.                 |    |                              |
|                                  | *  |                              |
| File Nos. 0000364320 and         | *) |                              |
| 0000363827                       | ** |                              |
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| Auction No. 35 -- C & F Block    | *  |                              |
| Broadband PCS                    | *) |                              |
|                                  | ** |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**Order**

**Adopted: May 23, 2003 Released: June 3, 2003**

By the Commission:

# Introduction

1.  On April 3, 2002, TPS Utilicom, Inc. ("TPS Utilicom") filed an
    Application for Review ("April 3 Application for Review") requesting
    that the Commission reverse the decision of the Wireless
    Telecommunications Bureau ("Bureau") dismissing TPS Utilicom's
    Petition to Deny ("Petition") the above-captioned applications
    ("Applications") of Alaska Native Wireless, L.L.C. ("Alaska Native
    Wireless")[^1] and grant the Petition or, in the alternative, remand
    the proceeding to the Bureau with instructions to grant the
    Petition. Also before the Commission is an additional Application
    for Review, filed by TPS Utilicom on April 10, 2002 ("April 10
    Application for Review"), challenging the Bureau's subsequent grant
    of fifteen C and F Block Broadband Personal Communications Services
    ("PCS") licenses to Alaska Native Wireless.[^2] For the reasons
    stated herein, we dismiss both the April 3 Application for Review
    and the April 10 Application for Review (collectively, "Applications
    for Review") for lack of standing.

# Background

2.  When the Commission instituted competitive bidding, as directed by
    Congress,[^3] it wanted to ensure that small businesses would be
    provided an opportunity to participate in the wireless market.[^4]
    To ensure such participation, the Commission set aside certain PCS
    licenses for businesses satisfying the entrepreneurial eligibility
    criteria.[^5] These C and F block PCS licenses are auctioned in
    closed bidding only to applicants that demonstrate that they,
    together with their affiliates and controlling interests, have gross
    revenues of less than \$125 million in each of the previous two
    years and total assets of less than \$500 million at the time such
    applicants file their short-form applications (Form 175).[^6]
    Additionally, the Commission offers bidding credits to discount the
    price of licenses acquired through open bidding to applicants
    meeting the designated entity criteria.[^7] In Auction No. 35, the
    Commission made available bidding credits of fifteen and twenty-five
    percent for small and very small businesses, respectively.[^8] To
    qualify as a very small business, an applicant had to certify that
    it, together with its affiliates and controlling interests, had
    average gross revenues not exceeding \$15 million for the previous
    three years.[^9]

3.  In Auction No. 35, Alaska Native Wireless applied for
    entrepreneurial eligibility status and participated in closed
    bidding. Alaska Native Wireless also applied for bidding credits as
    a very small business designated entity in open bidding markets.
    Alaska Native Wireless was the high bidder for forty-four markets in
    Auction No. 35, which closed on January 26, 2001.[^10] Alaska Native
    Wireless filed two long-form applications (Form 601), each dated
    February 12, 2001,[^11] which contained exhibits regarding its
    compliance with the Commission's entrepreneurial eligibility and
    designated entity rules.[^12] The exhibits contained information
    concerning Alaska Native Wireless' current assets and gross
    revenues.[^13] The Applications were placed on the Accepted for
    Filing Public Notice, dated February 27, 2001, which announced that
    petitions to deny had to be filed no later than March 9, 2001.[^14]

4.  TPS Utilicom filed the Petition, dated March 9, 2001, requesting
    that the Commission deny Alaska Native Wireless' Applications. TPS
    Utilicom argued that: (1) Alaska Native Wireless failed to include
    the gross revenues and assets of AT&T Wireless PCS Interests, L.L.C.
    ("AT&T Wireless") in its calculations to determine eligibility for
    designated entity status and closed bidding licenses and inclusion
    of such gross revenues and assets would make Alaska Native Wireless
    ineligible for designated entity status and closed bidding licenses
    \[small business designation\];[^15] and (2) Alaska Native Wireless'
    failure to report AT&T Wireless' assets and gross revenues
    constitutes lack of candor disqualifying Alaska Native Wireless as a
    licensee.[^16] Alaska Native Wireless filed an Opposition to the
    Petition to Deny, dated March 21, 2001, to which TPS Utilicom
    responded by filing a Response to Opposition to Petition to Deny,
    dated March 28, 2001.

5.  On March 4, 2002, the Bureau released an Order dismissing the
    Petition on the grounds that TPS Utilicom did not have standing to
    file a petition to deny against Alaska Native Wireless'
    Applications.[^17] Moreover, the Bureau stated that even if it were
    to address the Petition on the merits, TPS Utilicom failed to raise
    any facts demonstrating that Alaska Native Wireless was ineligible
    for the licenses for which it was the high bidder in Auction No. 35
    or that it acted with a lack of candor in filing its
    Applications.[^18] TPS Utilicom argues in the April 3 Application
    for Review that: (1) the Bureau's dismissal of the Petition for lack
    of standing was erroneous and contrary to federal case law and the
    Commission's rules; (2) the Bureau's finding that the Petition was
    an untimely challenge to a prior rulemaking is erroneous as it
    brings a new application of the Commission's rules to light; and (3)
    the Alaska Native Wireless Applications are in violation of the
    Communications Act of 1934, as amended ("Communications Act"),[^19]
    and the Commission's rules. Alaska Native Wireless filed an
    Opposition to the April 3 Application for Review, dated April 18,
    2002, to which TPS Utilicom responded by filing a Reply to
    Opposition to Application for Review, dated April 29, 2002.

6.  The Bureau granted fifteen licenses to Alaska Native Wireless on
    March 11, 2002.[^20] On April 10, 2002, TPS Utilicom filed an
    additional Application for Review. TPS Utilicom claims in the April
    10 Application for Review that the Bureau erred in issuing the
    fifteen licenses to Alaska Native Wireless, because Alaska Native
    Wireless is not an entrepreneur or very small business under the
    Commission's rules.[^21] TPS Utilicom states that it submitted the
    April 10 Application for Review as a "protective measure in order to
    assure the preservation of its arguments" that the fifteen licenses
    were improperly granted,[^22] and admits that "the arguments
    presented in the \[April 10 Application for Review\] are essentially
    identical to those already pending before the Commission in \[TPS
    Utilicom's April 3\] Application for Review of the Bureau's
    Order."[^23] TPS Utilicom suggests that the Commission can
    consolidate the April 3 Application for Review and the April 10
    Application for Review and "dispose of both in a single
    decision."[^24]

7.  On May 1, 2002, Alaska Native Wireless filed a letter regarding the
    April 10 Application for Review.[^25] Alaska Native Wireless states
    that it first learned of the April 10 Application for Review on
    April 29, 2002, during a telephone conversation with TPS Utilicom's
    counsel.[^26] Alaska Native Wireless argues that: (1) there was
    insufficient service of the April 10 Application for Review; (2) it
    is a redundant and frivolous pleading as the arguments are identical
    to those raised in the April 3 Application for Review; (3) to the
    extent that TPS Utilicom attempts to raise any new arguments, it is
    forbidden from doing so by the Commission's rules, and TPS Utilicom
    cannot enhance its earlier filing by submitting another application
    for review that would be untimely under the Commission's rules;
    and (4) an application for review of the grant of the licenses is
    prohibited by the Commission's rules because the Bureau did not have
    an opportunity to review this issue first.

8.  On November 14, 2002, the Commission announced that it would allow
    eligible winners in Auction No. 35 the option to request the
    dismissal of their pending applications for C and F block PCS
    licenses for spectrum that previously had been licensed to NextWave
    Personal Communications Inc., NextWave Power Partners Inc., or
    UrbanComm-North Carolina, Inc.[^27] Alaska Native Wireless filed a
    request that its pending applications for twenty-nine C and F block
    PCS licenses be dismissed.[^28] The Bureau reviewed Alaska Native
    Wireless' request and granted the dismissal of the remaining pending
    applications.[^29] As Alaska Native Wireless elected to dismiss its
    applications for the other twenty-nine licenses, TPS Utilicom's
    challenge of these applications is now moot. Thus, we consider TPS
    Utilicom's April 3 Application for Review only as it pertains to the
    fifteen licenses granted on March 11, 2002.

# Discussion

## Standing

9.  TPS Utilicom argues that its Petition should not have been dismissed
    for lack of standing. Specifically, TPS Utilicom alleges that: (1)
    the Bureau misconstrued the decision of the United States Court of
    Appeals for the District of Columbia Circuit ("D.C. Circuit") in
    *High Plains Wireless, L.P. v. FCC*;[^30] and (2) the Bureau should
    have determined that TPS Utilicom has standing to challenge Alaska
    Native Wireless' Applications pursuant to section 1.1202(d)(1) of
    the Commission's Rules.[^31] We disagree.

10. To have standing under Section 309(d)(1) of the Communications Act
    to file a petition to deny, an entity must demonstrate that it is a
    "party in interest."[^32] A petitioner must make specific
    allegations of fact sufficient to demonstrate that grant of the
    challenged application would cause the petitioner to suffer a direct
    injury.[^33] The petitioner also must establish a causal link
    between the claimed injury and the challenged action by
    demonstrating that the injury can be traced to the challenged
    action.[^34] Additionally, it must be likely, as opposed to merely
    speculative, that the injury would be prevented or redressed by the
    relief requested.[^35]

11. In addition to those general requirements for establishing standing,
    the Commission and the D.C. Circuit have discussed standing
    requirements specifically in the context of the Commission's
    auctions of spectrum.[^36] While a bidder in a government auction
    has a "right to a legally valid procurement process,"[^37] a
    disappointed bidder, to have standing to challenge the auction
    outcome, must demonstrate "that it was able and ready to bid and
    that the decision of the Commission prevented it from doing so on an
    equal basis."[^38] Accordingly, an entity that was not qualified to
    bid in particular markets in an auction has no standing to file a
    petition to deny the winning bidders' applications in those
    markets.[^39] Additionally, a disappointed bidder must prove that
    its injury is redressable by demonstrating that it is "ready,
    willing, and able" to participate in a new auction should it
    prevail.[^40]

12. TPS Utilicom makes no attempt to explain how it satisfies the
    general requirements for demonstrating standing -- *e.g.*, how it
    would be directly injured by the grant of Alaska Native Wireless'
    Applications and how denying Alaska Native Wireless licenses for
    which TPS Utilcom did not bid would redress the injury that TPS
    Utilicom alleges it suffered in the bidding for other licenses that
    Alaska Native Wireless did not win and all but four of which were
    won by entities other than TPS Utilicom. Instead, TPS Utilicom
    asserts that participation in the bidding for a particular license
    is not determinative in finding standing to challenge the high
    bidder of that license.[^41] Commission rules, however, allow
    auction participants to bid only in those markets for which they
    apply in their short-form applications (Form 175) that are filed
    prior to the auction.[^42] TPS Utilicom in its short-form
    application did not apply for any of the markets in which Alaska
    Native Wireless was the winning bidder and therefore was not
    qualified to bid in those markets.[^43] Thus, TPS Utilicom cannot
    demonstrate, as it must, "that it was able and ready to bid"[^44] on
    the licenses for which Alaska Native Wireless was the winning
    bidder, because it never applied for them, and therefore, was
    precluded from bidding for them. Similarly, TPS Utilicom cannot
    demonstrate, as it also must, "that the decision of the \[Bureau\]
    prevented it from \[bidding\] on an equal basis,"[^45] because TPS
    Utilicom itself chose not to seek to qualify to bid for the licenses
    won by Alaska Native Wireless.

13. TPS Utilicom also challenges the Bureau's determination that TPS
    Utilicom failed "to demonstrate that the award of the \[Alaska
    Native Wireless\] licenses would somehow deprive it of a valid
    auction process with respect to the markets for which it did
    bid."[^46] TPS Utilicom notes that it was eligible to participate in
    the auction of twenty-three licenses and alleges that Alaska Native
    Wireless forced the bids to increase in all of the markets in which
    TPS Utilicom was bidding.[^47] We are not persuaded by TPS
    Utilicom's arguments in this regard.

14. TPS Utilicom does not explain how awarding Alaska Native Wireless
    licenses for which TPS Utilicom was not eligible to bid would affect
    the auction process for licenses that Alaska Native Wireless did not
    win. TPS Utilicom instead appears to be arguing that Alaska Native
    Wireless' mere participation in the bidding for different licenses,
    even though ultimately unsuccessful, deprived TPS Utilicom of a
    valid auction process so as to provide it standing to challenge the
    licenses that Alaska Native Wireless did win but for which TPS
    Utilicom did not compete.

15. In each of the twenty-three markets in which TPS Utilicom was
    eligible to bid, there were multiple auction participants, not just
    Alaska Native Wireless. As we have stated, Alaska Native Wireless
    was not the winning bidder in any of those markets, and in nineteen
    of those markets, an entity other than TPS Utilicom was the winning
    bidder. Moreover, as to those nineteen markets, Commission records
    show that in each market in which both Alaska Native Wireless and
    TPS Utilicom placed bids, TPS Utilicom continued bidding against
    other participants after Alaska Native Wireless placed its last bid
    or that entities other than or in addition to Alaska Native Wireless
    continued to place bids after TPS Utilicom submitted its last bid.
    TPS Utilicom, therefore, ultimately was outbid for the licenses not
    by Alaska Native Wireless but by other auction participants whose
    eligibility TPS Utilicom, with one exception, has not challenged.
    [^48] TPS Utilicom does not suggest, as it could not do reasonably,
    that the Commission should deny the unchallenged winning bidders
    their licenses so that a new auction could be held.[^49]
    Accordingly, denying Alaska Native Wireless' Applications for other
    markets would not redress any alleged injury suffered by TPS
    Utilicom in bidding for licenses that it did not win, because those
    licenses were won by other auction participants.

16. For similar reasons, we also are not persuaded that TPS Utilicom was
    deprived of a valid auction process in the four markets in which it
    was the high bidder.[^50] Again, Commission records show that in
    each of those four markets, TPS Utilicom continued bidding against
    other participants after Alaska Native Wireless placed its last bid.
    To be the high bidder for those licenses, therefore, TPS Utilicom
    ultimately had to outbid not Alaska Native Wireless but other
    auction participants whose eligibility TPS Utilicom has not
    challenged. Thus, regardless of whether Alaska Native Wireless bid
    in earlier rounds of the auction, other entities continued to
    compete against TPS Utilicom until prices reached a level at which
    those entities were not willing to bid higher. [^51] Moreover, if
    TPS Utilicom thought that the bidding of an ineligible bidder was
    raising the price of a license beyond what it was willing to pay for
    the license, its remedy was to stop bidding and challenge the
    unqualified bidder if it won the license, through a petition to deny
    the license in that market. The remedy was not to continue bidding
    beyond what it was willing to pay for the license and later attempt
    to renegotiate the price.[^52]

17. TPS Utilicom further asserts that it is ready, willing and able to
    bid in a new auction and that "the Commission is aware of TPS
    Utilicom's financial ability as it currently holds a significant sum
    of money in trust for TPS Utilicom as a result of TPS Utilicom's
    upfront payment and selective down payments for two of four licenses
    upon which it was the high bidder."[^53] As TPS Utilicom fails to
    demonstrate that it was able and ready to bid on the licenses won by
    Alaska Native Wireless and that Alaska Native Wireless'
    participation in markets in which TPS Utilicom was eligible to
    participate directly injured it or deprived it of a valid auction
    process, TPS Utilicom's alleged ability to participate in a new
    auction of those licenses would not by itself be sufficient, even if
    proven, to provide TPS Utilicom with standing in this matter.[^54]
    Moreover, money held by the Commission to cover the default payment
    assessed against TPS Utilicom for defaulting on its FCC Auction No.
    35 obligations[^55] does not constitute indicia of TPS Utilicom's
    financial ability to participate in any future auction held by the
    Commission.

18. The second argument raised by TPS Utilicom in support of its
    contention that it has standing is that it is a party with standing
    under section 1.1202(d)(1) of the Commission's rules.[^56] First, we
    note that this argument is improperly raised, because the Bureau was
    not afforded an opportunity to evaluate the merits of this argument
    prior to Commission review.[^57] Even if we were to ignore the
    procedural defect and address this argument, however, we would find
    it to be without merit. Section 1.1202(d)(1) of the Commission's
    rules does not define who is a party in interest for purposes of
    determining standing; instead, it defines who is a party under the
    Commission's *ex parte* rules.[^58] Thus, the definition of a party
    in section 1.1202(d)(1) would not demonstrate that TPS Utilicom is a
    party in interest for the purpose of establishing standing.[^59]

## April 10 Application for Review

19. In its May 1, 2002 letter, Alaska Native Wireless claims that it was
    not properly served with the April 10 Application for Review and
    only learned of its existence during a telephone conversation with
    TPS Utilicom's counsel on April 29, 2002.[^60] Accordingly, due to
    the failure of service, we will accept the May 1, 2002 Alaska Native
    Wireless Letter, even though it was not filed as a timely opposition
    to the April 10 Application for Review.[^61]

20. For the same reasons that we found that TPS Utilicom fails to
    establish standing to file the April 3 Application for Review, we
    find that TPS Utilicom lacks standing to file the April 10
    Application for Review, which reiterates the same arguments as the
    April 3 Application for Review. We accordingly dismiss the April 10
    Application for Review for lack of standing.

# Conclusion

21. In conclusion, for the reasons discussed above, we dismiss both the
    April 3 Application for Review and the April 10 Application for
    Review for lack of standing. In any event, we have been presented
    with no basis for sustaining a challenge to Alaska Native Wireless'
    qualifications to hold its C and F block PCS licenses.

# Ordering Clause

22. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) and
    309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 309(d)(1), and sections 1.115, 1.2108 and 24.830 of the
    Commission's Rules, 47 C.F.R. §§ 1.115, 1.2108, 24.830, the
    Applications for Review filed by TPS Utilicom, Inc. on April 3, 2002
    and April 10, 2002 are hereby DISMISSED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: *See* Applications of Alaska Native Wireless, L.L.C. File Nos.
    0000364320 and 0000363827, *Order*, 17 FCC Rcd. 4231 (2002) ("March
    4, 2002 Order").

[^2]: *See* Wireless Telecommunications Bureau Grants Fifteen C and F
    Block Broadband Personal Communications Services (PCS) Licenses to
    Alaska Native Wireless, L.L.C., *Public Notice*, 17 FCC Rcd. 4563
    (2002) ("March 11, 2002 Public Notice").

[^3]: *See* Omnibus Budget Reconciliation Act of 1993 § 6002(a), 47
    U.S.C. 309(j).

[^4]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding, *Second Report and Order*, PP Docket No.
    93-253, 9 FCC Rcd. 2348, 2349, 2350, 2388-89, ¶¶ 3, 6, 227-30 (1994)
    ("*Second Report and Order*"); *see also* 47 U.S.C. § 309(j)(3)(B)
    (objectives of competitive bidding include participation of small
    businesses); 309(j)(4)(D) (regulations promulgated by the Commission
    must ensure that small businesses are provided an opportunity to
    participate in competitive bidding).

[^5]: *See Second Report and Order*, 9 FCC Rcd. at 2392, ¶¶ 245-48; *see
    also* Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, PP Docket No. 93-253, *Fifth Report and Order*,
    9 FCC Rcd. 5532, 5539, 5584-88, ¶¶ 14, 118-27 (1994) ("*Fifth Report
    and Order*") (adopting competitive bidding rules for the award of
    Broadband PCS licenses).

[^6]: *See* 47 C.F.R. § 24.709(a).

[^7]: *See Second Report and Order*, 9 FCC Rcd. at 2391-92, ¶¶ 241-42;
    *see also Fifth Report and Order*, 9 FCC Rcd. at 5539, 5589-91, ¶¶
    15, 130-33.

[^8]: *See* 47 C.F.R. §§ 24.712(a), 24.717(a) (small businesses),
    24.712(b), 24.717(b) (very small businesses); *see also* Amendment
    of the Commission's Rules Regarding Installment Payment Financing
    for Personal Communications Services (PCS) Licenses*,* WT Docket No.
    97-82, *Sixth Report and Order and Order on Reconsideration*, 15 FCC
    Rcd. 16,266, 16,287-88, ¶¶ 43-45 (establishing the bidding credit
    amount available to designated entities for PCS licenses acquired
    through open bidding and eliminating bidding credits for licenses
    acquired through closed bidding).

[^9]: *See* 47 C.F.R*.* §§ 24.720(b)(2), 1.2110(f)(2)(ii).

[^10]: *See* C and F Block Broadband PCS Auction Closes, *Public
    Notice*, 16 FCC Rcd. 2339, 2339, 2356-66 (2001).

[^11]: The above-captioned applications originally were filed on
    February 12, 2001, but have been amended and supplemented since the
    initial filing. Alaska Native Wireless filed two long-form
    applications in order to separate those markets for which it was not
    applying for tribal lands bidding credits (file no. 0000364320) from
    the seventeen markets for which it was seeking tribal lands bidding
    credits (file no. 0000363827). Alaska Native Wireless later reduced
    the number of markets for which it was seeking tribal lands bidding
    credits from seventeen to five. *See* Alaska Native Wireless,
    L.L.C., Request for Partial Waiver, filed Aug. 7, 2001; *see also*
    Alaska Native Wireless Application No. 0000363827, filed Aug. 16,
    2001. Alaska Native Wireless subsequently withdrew its request for
    tribal lands bidding credits in the remaining markets. *See* Letter
    from Conrad N. Bagne, Arctic Slope Regional Corp., *et al*. to
    Thomas Sugrue, Chief, Wireless Telecommunications Bureau, dated Oct.
    11, 2001; *see also* Alaska Native Wireless Application No.
    0000363827 at Schedule B (filed Oct. 12, 2001).

[^12]: *See* 47 C.F.R. §§ 24.709 (entrepreneurial eligibility rules),
    1.2110, 24.712, 24.717, 24.720(b) (designated entity rules); *see
    also* Alaska Native Wireless Application, ULS No. 0000363320, at
    Exhibits C, Minor Amendment to Exhibit C, D (filed Aug. 3, 2001);
    Alaska Native Wireless Application, ULS No. 0000363827, at Exhibits
    C, Minor Amendment to Exhibit C, D (filed Oct. 10, 2001)
    ("Applications").

[^13]: *See* Applications at Exhibits C, Minor Amendment to Exhibit C,
    D.

[^14]: *See* C and F Block Broadband Personal Communications Services
    (PCS) Auction; Applications Accepted for Filing, *Public Notice*, 16
    FCC Rcd. 4742, 4742 (2001); *see also* 47 C.F.R. § 1.2108
    (requirements for petitions to deny).

[^15]: *See* Petition at 1-5.

[^16]: *See* Petition at 5-6.

[^17]: *See* March 4, 2002 Order, 17 FCC Rcd. at 4235-36, ¶¶ 8-9.

[^18]: *Id.* at 4236, ¶ 10.

[^19]: 47 U.S.C. § 151 *et seq.*

[^20]: *See* March 11, 2002 Public Notice at 1. The licenses granted
    were WPUI366 (C Block, BTA063 -- Burlington, VT), WPUI367 (C Block,
    BTA064 -- Butte, MT), WPUI368 (C Block, BTA077 -- Cheyenne, WY),
    WPUI369 (C Block, BTA188 -- Helena, MT), WPUI370 (F Block, BTA192 --
    Honolulu, HI), WPUI371 (C Block, BTA241 -- Lansing, MI), WPUI372 (C
    Block, BTA259 -- Logan, WV), WPUI373 (C Block, BTA341 -- Paris, TX),
    WPUI378 (C Block, BTA004 -- Ada, OK), WPUI379 (C Block, BTA045 --
    Bismarck, ND), WPUI380 (C Block, BTA136 -- Fairbanks), WPUI381 (C
    Block, BTA221 -- Juneau-Ketchikan, AK), WPUI382 (C Block, BTA224 --
    Kalispell, MT), WPUI383 (C Block, BTA299 -- Minot, ND), and WPUI384
    (F Block, BTA425 -- Spokane, WA).

[^21]: *See* April 10 Application for Review at 1; *see also* 47 C.F.R.
    §§ 1.2110(f)(2), 24.709, 24.712, 24.717, 24.720(b).

[^22]: April 10 Application for Review at 2.

[^23]: *Id*.

[^24]: *Id.* at 2-3.

[^25]: Letter from Michele C. Farquhar and Angela E. Giancarlo, Counsel
    for Alaska Native Wireless, L.L.C., to Marlene H. Dortch, Secretary,
    Federal Communications Commission (May 1, 2002) ("May 1, 2002 Alaska
    Native Wireless Letter").

[^26]: May 1, 2002 Alaska Native Wireless Letter at 1.

[^27]: *See* Disposition of Down Payment and Pending Applications by
    Certain Winning Bidders in Auction No. 35, Requests for Refunds of
    Down Payments Made in Auction No. 35, *Order and Order on
    Reconsideration*, FCC 02-311 (rel. Nov. 14, 2002).

[^28]: *See* Applications, Dismissal Request (filed Nov. 27, 2002).

[^29]: *See* Wireless Telecommunications Bureau Grants Dismissal
    Requests of Eligible Auction No. 35 Winners and Dismisses
    Applications for 156 C and F Block Broadband Personal Communications
    Services (PCS) Licenses, *Public Notice*, DA 02-3340, at 1,
    Attachment A (rel. Dec. 3, 2002).

[^30]: *See* April 3 Application at 3-5 (citing 276 F.3d 599 (D.C. Cir.
    2002)).

[^31]: *See* April 3 Application at 5 (citing 47 C.F.R. 1.1202(d)(1)).

[^32]: 47 U.S.C. § 309(d)(1). *See* Minnesota PCS Limited Partnership,
    *Order*, 17 FCC Rcd. 126, 128, ¶ 6 (CWD 2002) ("*Minnesota PCS*");
    Black Crow Wireless, L.P., *Order*, 16 FCC Rcd. 15643, 15644-45, ¶ 4
    (CWD Policy and Rules Br. 2001) ("*Black Crow*"); Applications of
    ABC Wireless, L.L.C., *Order*, 15 FCC Rcd. 6787, 6789, ¶ 4 (CWD
    Policy and Rules Br. 1999) ("*ABC Wireless*"); Application of Los
    Angeles Cellular Telephone Company, *Order*, 13 FCC Rcd. 4601,
    4603-04, ¶ 5 (CWD 1998) ("*Los Angeles Cellular*").

[^33]: *See Minnesota PCS*, 17 FCC Rcd. at 128, ¶ 6; *Black Crow*, 16
    FCC Rcd. at 15644-45, ¶ 4; *ABC Wireless*, 15 FCC Rcd. at 6789, ¶ 4;
    *Los Angeles Cellular*, 13 FCC Rcd. at 4603-04, ¶ 5; Americatel
    Corporation, *Memorandum Opinion, Order, Authorization and
    Certificate*, 9 FCC Rcd. 3993, 3995, ¶ 9 (1994) ("*Americatel
    Corporation*"); *see also High Plains*, 276 F.3d at 605; U.S.
    Airwaves, Inc. v. FCC, 232 F.3d 227, 231-32 (D.C. Cir. 2000);
    DIRECTV v. FCC, 110 F.3d 816, 829 (D.C. Cir. 1997); Omnipoint
    Corporation v. FCC, 78 F.3d 620, 628 (D.C. Cir. 1996); U.S. v. Hays,
    515 U.S. 737, 743 (1995); Lujan v. Defenders of Wildlife, 504 U.S.
    555, 560-61 (1992); Duke Power Co. v. Carolina Environmental Study
    Group, Inc. 438 U.S. 59, 73-74 (1978); Sierra Club v. Morton, 405
    U.S. 727, 733 (1972).

[^34]: *See Americatel Corporation*, 9 FCC Rcd. at 3995, ¶ 9; *Black
    Crow*, 16 FCC Rcd. at 15645, ¶ 4; *ABC Wireless*, 15 FCC Rcd. at
    6789, ¶ 4; *Los Angeles Cellular*, 13 FCC Rcd. at 4603-04, ¶ 5; *see
    also High Plains*, 276 F.3d at 605; *U.S. Airwaves*, 232 F.3d at
    231-32; *DIRECTV*, 110 F.3d at 829; *Omnipoint*, 78 F.3d at 628;
    *Hays*, 515 U.S. at 743; *Lujan*, 504 U.S. at 560-61; *Duke*, 438
    U.S. at 72, 74, 78, 81.

[^35]: *See Americatel Corporation*, 9 FCC Rcd. at 3995, ¶ 9; *Black
    Crow*, 16 FCC Rcd. at 15645, ¶ 4; *ABC Wireless*, 15 FCC Rcd. at
    6789, ¶ 4; *Los Angeles Cellular*, 13 FCC Rcd. at 4603-04, ¶ 5; *see
    also High Plains*, 276 F.3d at 605; *U.S. Airwaves*, 232 F.3d at
    231-32; *DIRECTV*, 110 F.3d at 829; *Omnipoint*, 78 F.3d at 628;
    *Hays*, 515 U.S. at 743; *Lujan*, 504 U.S. at 560-61; *Duke*, 438
    U.S. at 72, 74, 78, 81.

[^36]: *See High Plains*, 276 F.3d at 605.

[^37]: *High Plains*, 276 F.3d at 605. *See also* *U.S. Airwaves*, 232
    F.3d at 232; *DIRECTV*, 110 F.3d at 829.

[^38]: *High Plains*, 276 F.3d at 605; *U.S. Airwaves*, 232 F.3d at 232;
    *DIRECTV*, 110 F.3d at 829-30 (citing Northeastern Florida Chapter
    of the Associated Gen. Contractors of America v. City of
    Jacksonville, 508 U.S. 656, 666 (1993)).

[^39]: *See* *High Plains*, 276 F.3d at 605. The D.C. Circuit found in
    that case that an auction participant, High Plains Wireless, L.P.
    ("High Plains"), that did not bid on some of the licenses it was
    petitioning did not have standing to challenge the award of the
    thirty-one challenged licenses on which High Plains did not bid and
    that were won by another entity, Mercury PCS II, LLC ("Mercury").
    *See also U.S. Airwaves*, 232 F.3d at 232.

[^40]: *High Plains*, 276 F.3d at 605; *U.S. Airwaves*, 232 F.3d at 232.

[^41]: April 3 Application at 3-4.

[^42]: *See* 47 C.F.R. § 1.2105(a); *see also* C and F Block Broadband
    PCS Spectrum Auction Scheduled for December 12, 2000, *Public
    Notice*, 15 FCC Rcd. 19,485, 19,531 (2000).

[^43]: *See* TPS Utilicom, Inc., Form 175 Application (Nov. 28, 2000);
    *see also* Auction of Licenses for the C and F Block Broadband PCS
    Spectrum, *Public Notice*, DA 00-2725, at Attachment B, 24 (rel.
    Dec. 1, 2000).

[^44]: *High Plains*, 276 F.3d at 605.

[^45]: *High Plains*, 276 F.3d at 605.

[^46]: April 3 Application at 4 (citing March 4, 2002 Order, 17 FCC Rcd.
    at 4235-36, ¶ 9). *See High Plains,* 276 F.3d at 605 (giving as an
    additional reason for denying High Plains standing to challenge the
    licenses won by Mercury that High Plains did not "allege that the
    award of those licenses somehow deprived it of a valid auction
    process with respect to the lots for which it did bid").

[^47]: April 3 Application at 4-5. TPS Utilicom states that of the
    twenty-three licenses for which they applied, fifteen were open
    bidding licenses and eight were closed bidding licenses. *See id.*
    at 4.

[^48]: The only winning bidder in those markets whose eligibility TPS
    Utilicom challenged was DCC. *See* DCC PCS, Inc., File No.
    0000365171, FCC Auction No. 35, Petition to Deny, filed by TPS
    Utilicom, Inc. (Mar. 9, 2001).

    Commission records of the bidding in Auction No. 35 show the
    following information for each market in which both TPS Utilicom and
    Alaska Native Wireless were qualified to bid. CWB007C3 -- TPS
    Utilicom's last bid was in round fourteen. Six auction participants
    continued bidding for the license after TPS Utilicom stopped
    bidding. Leap Wireless International, Inc. was the high bidder in
    round 29. CWB007C4 -- TPS Utilicom's last bid was in round ten.
    Eight auction participants continued bidding for the license after
    TPS Utilicom stopped bidding. Northcoast Communications, L.L.C
    ("Northcoast") was the high bidder in round 28. CWB007C5 -- TPS
    Utilicom's never placed a bid for this license. Ten auction
    participants bid for the license. Cellco Partnership, d/b/a Verizon
    Wireless ("Cellco") was the high bidder in round 34. CWB043C2 -- TPS
    Utilicom's last bid was in round 65. Cellco was the high bidder in
    round 66. Alaska Native Wireless' last bid was in round 23. CWB127C2
    -- TPS Utilicom's last bid was in round 71. Cellco was the high
    bidder in round 72. Alaska Native Wireless' last bid was in round
    37. CWB208C1 -- TPS Utilicom's last bid was in round 38. Northcoast
    was the high bidder in round 39. Alaska Native Wireless' last bid
    was in round 23. CWB215C4 -- TPS Utilicom's last bid was in round
    75. Cellco was the high bidder in round 78. Alaska Native Wireless'
    last bid was in round 20. CWB215C5 -- TPS Utilicom's last bid was in
    round 77. Salmon PCS, LLC ("Salmon") was the high bidder in round
    80. Alaska Native Wireless' last bid was in round 16. CWB330C4 --
    TPS Utilicom's last bid was in round 37. Cellco was the high bidder
    in round 45. Alaska Native Wireless' last bid was in round 11.
    CWB330C5 -- TPS Utilicom's last bid was in round 46. Two auction
    participants continued bidding for the license after TPS Utilicom
    stopped bidding. Salmon was the high bidder in round 76. CWB333C1 --
    TPS Utilicom's last bid was in round 63. Northcoast was the high
    bidder in round 64. Alaska Native Wireless' last bid was in round
    13. CWB333C2 -- TPS Utilicom's last bid was in round 61. Cellco was
    the high bidder in round 62. Alaska Native Wireless' last bid was in
    round 11. CWB352C3 -- TPS Utilicom's last bid was in round 16. Six
    auction participants continued bidding for the license after TPS
    Utilicom stopped bidding. Devtel, LLC was the high bidder in round
    28. CWB352C4 -- TPS Utilicom's last bid was in round 16. Four
    auction participants continued bidding for the license after TPS
    Utilicom stopped bidding. Polycell Communications, Inc. was the high
    bidder in round 36. CWB352C5 -- TPS Utilicom's last bid was in round
    16. Four auction participants continued bidding for the license
    after TPS Utilicom stopped bidding. NTCH, Inc. ("NTCH") was the high
    bidder in round 23. CWB352F -- TPS Utilicom's last bid was in round
    16. Three auction participants continued bidding for the license
    after TPS Utilicom stopped bidding. PCS Partners, L.P. was the high
    bidder in round 54. CWB438C1 -- TPS Utilicom's last bid was in round
    12. Three auction participants continued bidding for the license
    after TPS Utilicom stopped bidding. DCC PCS, Inc. ("DCC") was the
    high bidder in round 18. CWB463C1 -- TPS Utilicom's last bid was in
    round 12. Five auction participants continued bidding for the
    license after TPS Utilicom stopped bidding. MCG PCS II, Inc. was the
    high bidder in round 42. CWB563C2 -- TPS Utilicom's last bid was in
    round 12. Six auction participants continued bidding for the license
    after TPS Utilicom stopped bidding. NTCH was the high bidder in
    round 43.

[^49]: As noted above, *supra* note 48, TPS Utilicom filed a petition to
    deny DCC's application. TPS Utilicom's challenge of DCC's
    eligibilty, however, even if it were granted, would not establish
    TPS Utilicom's standing to challenge Alaska Native Wireless'
    Applications.

[^50]: TPS Utilicom was not granted any of the four licenses for which
    it was the high bidder in Auction No. 35, because it defaulted on
    its obligation to submit the down payment necessary to bring its
    total deposits up to twenty percent of its high bids by February 12,
    2001. *See* TPS Utilicom, Inc., *Order*, 16 FCC Rcd. 14,835 (CWD
    Policy and Rules Br., 2001) (denying a request for waiver of the
    Commission's rules requiring a down payment and assessing initial
    default payments, obligations, and procedures), *Order on
    Reconsideration*, DA 03-480 (WTB, rel. Feb. 21, 2003) ("TPS Utilicom
    Order on Reconsideration"); *see also* 47 C.F.R. § 1.2107(b).

[^51]: Commission records of the bidding in Auction No. 35 show the
    following information for the four markets in which TPS Utilicom was
    the high bidder. Alaska Native Wireless concluded active bidding in
    each of those markets in the early rounds. Thereafter, TPS Utilicom
    competed with many other auction participants before being
    determined the high bidder: CWB043C1 -- Alaska Native Wireless' last
    bid was in round 19 and TPS Utilicom submitted the high bid for the
    license in round 67. CWB127C1 -- Alaska Native Wireless' last bid
    was in round 23 and TPS Utilicom submitted the high bid for the
    license in round 73. CWB215C3 -- Alaska Native Wireless' last bid
    was in round 25 and TPS Utilicom submitted the high bid for the
    license in round 79. CWB330C3 -- Alaska Native Wireless' last bid
    was in round 13 and TPS Utilicom submitted the high bid for the
    license in round 75.

[^52]: TPS Utilicom Order on Reconsideration, DA 03-480, at ¶ 18.

[^53]: April 3 Application at 3.

[^54]: *See supra* text accompanying notes 37-40 (required showings for
    standing in auctions context).

[^55]: *See supra* note 50 (discussing TPS Utilicom's default).

[^56]: 47 C.F.R. § 1.1202(d)(1). *See* April 3 Application for Review at
    5.

[^57]: *See* 47 C.F.R. § 1.115(c).

[^58]: *See* 47 C.F.R. §§ 1.1200-16. "The fact that a person is deemed a
    party for purposes of this subpart does not constitute a
    determination that such person has satisfied any other legal or
    procedural requirements, such as the operative requirements for
    petitions to deny or requirements as to timeliness. Nor does it
    constitute a determination that such person has any other procedural
    rights, such as the right to intervene in hearing proceedings."
    *Id.* § 1.1202, Note 3 to paragraph (d).

[^59]: TPS Utilicom further argues that section 1.1202(d)(1) is
    applicable because the Bureau recognized Alaska Native Wireless'
    applications and TPS Utilicom's Petition as a proceeding under
    section 1.1208 of the Commission's rules. 47 C.F.R. § 1.1208
    (prohibiting "*ex parte* presentations . . . to or from Commission
    decision-making personnel" in restricted proceedings). Again,
    application of the Commission's *ex* *parte* rules does not
    establish standing for purposes of a petition to deny.

[^60]: *See* May 1, 2002 Alaska Native Wireless Letter at 1-2.

[^61]: *See* 47 C.F.R. § 1.115(d) (stating that oppositions to an
    Application for Review should be filed fifteen days after the
    Application for Review is filed).