# **DA 01-170**

# 

# January 23, 2001

J. Jeffrey Craven, Esquire

Patton Boggs, LLP

2550 M Street, NW

Washington, DC 20037-1350

## Re: [Eligibility Status of IVIDCO, L.L.C. and Contingent Waiver Request]{.underline}

Dear Mr. Craven:

This letter responds to your correspondence on behalf of IVIDCO, L.L.C.
("IVIDCO")[^1] requesting reconsideration of the Auctions Finance and
Market Analysis Branch ("Branch") determination[^2] that IVIDCO is
ineligible to participate in the restructuring plan adopted in the
Commission's *218-219 MHz Order*.[^3] IVIDCO contends that it had either
a pending grace period or waiver request on file with the Commission
prior to its missed payment of March 31, 1997. As such, IVIDCO asserts
that its missed payment should not have resulted in its default and the
automatic cancellation of its licenses pursuant to section 1.2110 of the
Federal Communication Commission\'s ("Commission") rules.[^4] Thus,
IVIDCO contends that it should be eligible to participate in the 218-219
MHz Service restructuring plan. In the alternative, IVIDCO requests that
the Auctions and Industry Analysis Division ("Division") now grant a
waiver of the Commission's default and automatic license cancellation
rules and reinstate IVIDCO's licenses, making it eligible to participate
in the 218-219 MHz Service restructuring plan.[^5] In addition,
subsequent to the above referenced letters, IVIDCO requested access to
all grace period requests filed by every licensee in the 218-219 MHz
Service.[^6] For the reasons set forth below, we deny IVIDCO's request
to be determined eligible to participate in the restructuring plan and
deny its waiver request. However, we grant IVIDCO's request to have
access to the grace period requests filed by current and former 218-219
MHz Service licensees. As the documents requested contain financial
information particular to the current and former licensees, all
identifying information will be redacted from the documents.

### 1. Background

On September 10, 1999, the Commission issued the *218-219 MHz* *Order*
which modified the regulations governing the licensing of the 218-219
MHz Service (formerly known as IVDS) to maximize the efficient and
effective use of the band.[^7] The *218-219 MHz Order*, among other
things, modified service and technical rules for the band and extended
the license term from five to ten years.[^8] The *218-219 MHz Order*
also announced the Commission's decision to adopt a financial
restructuring plan for "Eligible Licensees." Eligible Licensees are
licensees that: (i) were current in installment payments as of March 16,
1998; (ii) were less than ninety days delinquent on the last payment due
before March 16, 1998; or (iii) had properly filed grace period requests
under the former installment payment rules.[^9] "Ineligible Entities"
are former licensees that made second down payments and: (i) made some
installment payments, but were not current in their installment payments
as of March 16, 1998, and did not have a grace period request on file in
conformance with the former rules; or (ii) entities that never made any
installment payments and did not have a timely filed grace period
request on file.[^10] Ineligible Entities are not entitled to
participate in the 218-219 MHz Service restructuring plan as they lost
their licenses through default.[^11] However, Ineligible Entities will
be granted debt forgiveness for any outstanding balances owed and will
be refunded their previously paid installment payments.[^12]

In January 2000, in accordance with the rules set forth in the *218-219
MHz Order*, current and former 218-219 MHz licensees were notified of
their eligibility status with regard to the restructuring plan. IVIDCO
was notified that it was an Ineligible Entity.[^13] IVIDCO acknowledges
that it failed to make the March 31, 1997 installment payment, making it
more than ninety days delinquent as of March 16, 1998.[^14] This missed
payment, in conjunction with the Commission's records reflecting
IVIDCO's failure to file a timely grace period request, informed the
Branch's determination of IVIDCO's eligibility status.

Upon notification of its ineligibility, IVIDCO sought reconsideration of
the Branch's decision.[^15] IVIDCO contends that it had either a pending
grace period or waiver request on file with the Commission before its
missed payment of March 31, 1997.[^16] IVIDCO relies upon the following
five documents to support its contention: (1) an April 18, 1996 Letter;
(2) a September 4, 1996 Rule Making Petition; (3) a November 18, 1996
Letter; (4) a February 10, 1997 Letter; and (5) a January 28, 1997 Rule
Making Petition Amendment.[^17] In the alternative, IVIDCO now requests
a waiver of the Commission's default and automatic license cancellation
rules, thereby reinstating IVIDCO's licenses and making it eligible to
participate in the restructuring plan.[^18]

### 2. IVIDCO Failed To File A Timely Grace Period Request

Grace periods were established by the Commission in order to protect
licensees utilizing the installment payment program that experience
temporary financial hardship from losing their license(s) through
default. In the *1995 IVDS Omnibus Order*[^19] and the *IVDS Grace
Period Public Notice*,[^20] licensees were cautioned that in accordance
with section 1.2110 of the Commission's rules, if a licensee
individually required financial assistance it should request a three- or
six-month grace period during the first ninety days following any missed
installment payments.[^21] Licensees were further cautioned that failure
to submit payment within ninety days of the due date, or file a timely
grace period request, would result in the default and automatic
cancellation of its license(s).[^22] However, if a licensee were granted
a grace period, it would not need to make installment payments during
the grace period.[^23]

IVIDCO contends that three documents in particular, the April 18, 1996
Letter, the September 4, 1996 Rule Making Petition, and the February 10,
1997 Letter, either individually or collectively constitute a grace
period request.[^24] As discussed below, however, IVIDCO's attempt to
re-characterize these three documents as a singular request for a grace
period is unavailing, as these documents (as well as the other two cited
documents) addressed altogether different matters.

The first document, the April 18, 1996 Letter, was a request that the
Commission accept IVIDCO's then late first installment payment.[^25]
This request was limited to a situation involving one payment in April
of 1996, and it did not relate to the critical missed March 31, 1997
payment.[^26] The Commission accepted IVIDCO's late payment without
penalty. Tellingly, the April 18, 1996 Letter made no mention of
financial difficulty and/or a need to be relieved of its pending or
future payment obligations, and there was nothing else that could
conceivably be construed to relate to IVIDCO's March 1997 payment
obligation.

The second document, the September 4, 1996 Rule Making Petition, was
filed by several IVDS licensees requesting a change in the licensing
terms for the 218-219 MHz Service. IVIDCO argues that the September 4,
1996 Rule Making Petition is a grace period request because it sought a
"restructured payment schedule," which is one element of section
1.2110(e)(4)(ii) of the Commission's rules addressing grace period
requests.[^27] The request for a restructured payment schedule, however,
was made in the context of a proposed rule change that would have
extended the license term of all 218-219 MHz Service licensees from five
years to ten years. Moreover, this rule making petition was clearly a
generalized request, making no mention of any specific factors relevant
to grace period requests such as a licensee's financial difficulties.
Furthermore, there is nothing in the September 4, 1996 Rule Making
Petition to link it to the March 31, 1997 installment payment deadline
that IVIDCO missed, not even a reference to any need to be relieved of
future installment payments (for any of the joint filers, including
IVIDCO). In sum, the jointly filed September 4, 1996 Rule Making
Petition was a request for a rule change, not a request for a grace
period. (Similarly, the January 28, 1997 Rule Making Petition Amendment
seeking a repeal of certain service rules, was also not a grace period
request.)

Finally, the third document, the February 10, 1997 Letter, does not even
mention IVIDCO, by name or license number, nor does it state a request
for a suspension of installment payments for any licensee. Rather, the
February 10, 1997 Letter was filed by an attorney on behalf of several
unnamed IVDS licensees, although IVIDCO attempts to link itself to the
letter by submitting a bill it received from this attorney, in which the
February 10, 1997 Letter is referenced.[^28] In fact, the letter simply
summarizes a meeting with a member of the FCC's staff regarding general
discussions about the grace period request rules. The February 10, 1997
Letter goes on to assert that a sentiment exists among IVDS licensees
that the Commission should generally suspend installment payment
obligations during the rulemaking process, thereby relieving licensees
of the need to seek individualized relief via the grace period request
process. Thus, the letter, on its face, distinguishes itself from a
request for a grace period.

These documents, either individually or collectively, do not constitute
a grace period request.[^29] It is apparent that at the time these
documents were filed IVIDCO did not consider them to be grace period
requests,[^30] and the substance of the documents does not support
IVIDCO's attempt to re-characterize the filings. Thus, we find that
IVIDCO failed to file a timely grace period request in anticipation of
the missed March 31, 1997 payment. We decline to accept IVIDCO's after
the fact rationalization that the above documents were intended as, or
amount to, pending grace period requests that shield IVIDCO from the
consequences of failing to meet its payment obligations.

### 3. IVIDCO Did Not Have A Pending Waiver Request On File

In addition to IVIDCO's contention that it had a grace period request on
file with the Commission, IVIDCO also characterized its filings as
pending waiver requests.[^31] As an initial matter, we note that a
waiver request is not equivalent to a grace period request; and, even if
IVIDCO had a waiver request on file with the Commission, it would not
render IVIDCO eligible for participation in the restructuring plan.
Grace periods were intended to protect licensees experiencing temporary
financial difficulty from default and automatic license cancellation by
suspending the licensee's payment obligation. In contrast, a waiver
request seeks an exception to specific Commission rules, and until the
Commission grants a waiver request, licensees are not relieved of the
obligation to comply, and/or the consequences of non-compliance, with
the Commission's rules.[^32] Unlike a grace period request, the mere act
of filing a waiver request does not suspend a licensee's installment
payment obligation.

As explained above, IVIDCO's attempt to recast the April 18, 1996
Letter, the September 4, 1996 Rule Making Petition and the February 10,
1997 Letter as grace period requests is unpersuasive. Any attempt to
portray these documents as a request for waiver of the installment
payment rules for the March 31, 1997 payment is similarly flawed. The
two filings not previously discussed in detail, the November 18, 1996
Letter and the January 28, 1997 Rule Making Petition Amendment, also
make no mention of a request for waiver of the installment payment
rules. The November 1996 Letter memorializes IVIDCO's attorneys' efforts
to schedule a meeting and the January 28, 1997 Rule Making Petition
Amendment requests the repeal of certain service rule sections,
unrelated to the installment payment rules. It is apparent that none of
the filings submitted by IVIDCO request, or state with any specificity,
the desire or need to waive the applicable Commission rules. As IVIDCO
did not request a waiver of the Commission's installment payment rules
in these documents, we reject IVIDCO's attempt to characterize its
filings as pending waiver requests.

### 4. IVIDCO Fails To Demonstrate Grounds For A Waiver Of The Default Rules

In its alternative argument, more than three years after the missed
March 1997 payment, IVIDCO now requests a waiver of the applicable
default and automatic license cancellation rules.[^33] In order for the
Commission to grant a waiver of its rules, one of two tests must be met.
The entity requesting a waiver must demonstrate that either (i) the
underlying purpose of the rule(s) would not be served or would be
frustrated by application in the instant case, and that a grant of the
requested waiver would be in the public interest; or (ii) in view of
unique or unusual factual circumstances in the instant case, application
of the rule(s) would be inequitable, unduly burdensome or contrary to
the public interest, or the applicant has no reasonable
alternative.[^34] IVIDCO's request does not meet either of these tests.

IVIDCO suggests that the underlying purpose of the Commission's rules
would not be served by enforcement in this instance; and, it contends
that enforcement would result in a further delay in service, contrary to
the public interest.[^35] Grant of IVIDCO's request would harm the
overall auction structure. The underlying purpose of the default and
automatic license cancellation rules, of which IVIDCO seeks a waiver, is
to encourage licensees to timely and fully comply with their payment
obligations, effectively utilize the spectrum, and ultimately maintain
the integrity of the auction process.[^36] Strict enforcement of the
Commission's payment rules enhances the integrity of the auction and
licensing process by ensuring that applicants have the necessary
financial qualifications and that spectrum is awarded to those qualified
bidders who value the spectrum most. An efficient auction process will
ultimately lead to the efficient assignment of licenses and speedy
deployment of services. Insisting that licensees demonstrate their
ability to pay as a condition to holding licenses is essential to a fair
and efficient licensing process, is fair to all participants in our
auctions, including those who won licenses in the auctions and those who
did not, and fosters the promotion of economic opportunity and
competition in the marketplace.[^37] For the reasons stated above, we
believe that IVIDCO has failed to demonstrate that the underlying
purpose of the applicable default and automatic license cancellation
rules would not be served by application in this instance, or that it
would serve the public interest to waive enforcement.

IVIDCO also alleges that the Commission's procedures with respect to the
payment notice and debt collection process, processing of requests for
clarification of the rules and changes in the grace period rules,
created confusion among licensees as to their payment obligations.
IVIDCO contends that this confusion constituted unique or unusual
circumstances that warrant granting a waiver to IVIDCO.[^38] However,
IVIDCO fails to demonstrate that it relied to its detriment on any of
the above noted allegations, or that these alleged circumstances had any
impact on IVIDCO's individual failure to comply with the Commission's
installment payment rules. IVIDCO has clearly demonstrated that it was
on notice and aware of its obligation to make the March 1997 installment
payment. IVIDCO was also aware of the means by which it might have been
excused from its payment obligation through the filing of a grace period
request. Furthermore, the Commission provided ample notice to 218-219
MHz licensees regarding the Commission's payment rules.[^39] Thus,
IVIDCO has failed to demonstrate that it experienced the alleged
confusion that it claims created unique or special circumstances
requiring special consideration of its failure to comply with the
installment payment rules as a result of unique or special circumstance
requiring special consideration. IVIDCO has failed to demonstrate that
it meets either of the two tests put forth in the Commission's waiver
rules. IVIDCO's waiver request is unsubstantiated and unpersuasive,
particularly after full consideration of all of the factors in the
*218-219 MHz Order* and Rule Making that culminated in relief for both
Eligible Licensees and Ineligible Entities.

IVIDCO also contends that grant of the waiver request would be
consistent with *Self Communications*,[^40] *Lancaster
Communications*,[^41] *TE-MCG*,[^42] and *Lakeland. Self Communications*
is inapposite.[^43] There, the Public Safety and Private Wireless
Division, Wireless Telecommunications Bureau, granted a request for
waiver of the Commission's rules establishing license renewal terms and
reinstated its license. The grace period or installment payment rules
were not at issue in *Self Communications*. In that case, although Self
Communications had expressed a desire to retain the license prior to the
expiration date, it failed to timely file a renewal application. Based
upon the totality of the circumstances, including the fact that Self
Communications had made efforts to construct the station, the waiver was
granted and the license reinstated.[^44] However, a Notice of Apparent
Liability was issued against Self Communications for willfully violating
the Commissions rules.[^45]

*Lancaster Communications*, *TE-MCG*, and *Lakeland* are equally
inapplicable. As explained in the *NextWave Order on Reconsideration*,
under the facts presented in *Lancaster Communications*, and *TE-MCG*,
the Commission constructively waived the installment payment
deadlines.[^46] In *Lakeland,* the Policy and Rules Branch, Commercial
Wireless Division, Wireless Telecommunications Bureau, found that
although late payment could not revive an automatically cancelled
license, the circumstances presented were consistent with previous
cases, where, as a result of administrative oversight, the Commission
has acknowledged that a constructive waiver of the installment payment
deadlines had occurred.[^47] Thus, the Policy and Rules Branch believed
it appropriate to afford Lakeland similar treatment. In this case, there
are no circumstances that could be construed as a constructive waiver of
the requirement to file a grace period request.[^48] Accordingly, IVIDCO
has failed to establish constructive waiver of the grace period rules.

**5. [Document Request]{.underline}**

IVIDCO requested[^49] access to all grace period requests filed by
current and former licensees in the 218-219 MHz Service.[^50] The
Division will make the requested documents available to IVIDCO. However,
as the documents requested contain financial information particular to
the current and former licensees, all identifying information will be
redacted from the documents.

### 6. Conclusion

For the reasons detailed above, we find that IVIDCO did not file a
timely grace period request and did not have a pending waiver request on
file. Nor has IVIDCO demonstrated facts sufficient to justify a waiver
of the Commission's default and automatic license cancellation rules.

For the reasons stated above, IVIDCO's petition for reconsideration of
the Branch's decision regarding IVIDCO's eligibility to participate in
the 218-219 MHz Service restructuring plan is DENIED.

For the reasons stated above, IVIDCO's February 2000 request for a
waiver of the Commission's rules governing the 218-219 MHz Service
restructuring plan to permit IVIDCO to become an Eligible Licensee is
DENIED.

For the reasons stated above, IVIDCO's July 24, 2000 request for access
to the grace period requests filed by 218-219 MHz licensees is GRANTED
to the extent specified herein.

This action is taken pursuant to sections 1, 4(i), 4(j), and 303(r) of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i),
154(j), 303(r), and the authority delegated pursuant to section 0.331 of
the Commission's Rules, 47 C.F.R. § 0.331.

> Sincerely,

Margaret Wiener

> Chief

Auctions and Industry Analysis Division

Wireless Telecommunications Bureau

[^1]: Letter to Rachel Kazan, Chief, Auctions Finance and Market
    Analysis Branch, Wireless Telecommunications Bureau, Federal
    Communications Commission, from J. Jeffrey Craven, Esq., dated Feb.
    4, 2000 ("February 4, 2000 Letter"); Letter to Rachel Kazan, Chief,
    Auctions Finance and Market Analysis Branch, Wireless
    Telecommunications Bureau, Federal Communications Commission, from
    J. Jeffrey Craven, Esq., dated May 2, 2000 ("May 2, 2000 Letter");
    and Letter to Margaret Wiener, Chief, Auctions and Industry Analysis
    Division, Wireless Communications Bureau, Federal Communications
    Commission, from J. Jeffrey Craven, Esq., dated January 11, 2001
    ("January 11, 2001 Letter").

[^2]: Letter to Marilyn F. Smith, IVIDCO, L.L.C., from Rachel Kazan,
    Chief, Auctions Finance and Market Analysis Branch, Wireless
    Telecommunications Bureau, Federal Communications Commission, dated
    January 6, 2000 ("*January 6, 2000 IVIDCO Ineligibility Letter*").

[^3]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service, WT Docket No.
    98-169, *Report and Order and Memorandum Opinion and Order*, FCC
    99-239, 15 FCC Rcd 1497 (1999) ("*218-219 MHz Order"*).

[^4]: 47 C.F. R. § 1.2110 (1994).

[^5]: *See generally* February 4, 2000 Letter.

[^6]: Letter to Amy Zoslov, Chief, Auctions and Industry Analysis
    Division, Wireless Telecommunications Bureau, Federal Communications
    Commission, from J. Jeffrey Craven, Esq., dated July 24, 2000 ("July
    24, 2000 Letter").

[^7]: *218-219 MHz Order*, 15 FCC Rcd at 1506 ¶ 15.

[^8]: *Id*. at 1517 ¶ 31.

[^9]: *Id*. at 1520 ¶ 37.

[^10]: *Id*. at 1520 ¶ 38.

[^11]: *Id.* at 1518 ¶ 33 (citing 47 C.F.R. § 1.2110 (1994)); *see also*
    Public Notice DA 00-49, Auction of C and F Block Broadband PCS
    Licenses, NextWave Personal Communications, Inc., and NextWave Power
    Partners, Inc., Petition for Reconsideration, Settlement Request
    Pursuant to DA 99-745 For Various Broadband PCS C Block Licenses,
    *Order on Reconsideration*, 15 FCC Rcd 17500 (2000) ("*NextWave
    Order on Reconsideration*"); *In re NextWave Personal
    Communications, Inc.,* 200 F.3d 43 (2^d^ Cir. 1999), *mandate
    enforced by* 217 F.3d 125 (2^d^ Cir. 2000), *cert. denied*, 2000 WL
    795201 (Oct. 10, 2000) (No. 99-1980); *Mountain Solutions v. FCC*,
    197 F.3d 512 (D.C. Cir. 1999) (upholding the Commission's decision,
    in a PCS licensing matter, to deny a waiver of its rule requiring a
    winning bidder to timely submit both its first and second down
    payment before the Commission will grant a license).

[^12]: *218-219 MHz Order*, 15 FCC Rcd at 1520 ¶ 38; Implementation
    Procedures For The Report And Order And Memorandum Opinion And Order
    Addressing the 218-219 MHz Services (Formerly Known As Interactive
    Video And Data Services (IVDS)), *Public Notice*, DA 00-900, 15 FCC
    Rcd 7329 (WTB 2000) (noting that the Department of Justice
    authorized the reduction of debt owed to the United States in
    accordance with the debt relief provisions of the *218-219* *MHz
    Order*).

[^13]: *January 6, 2000 IVIDCO Ineligibility Letter*.

[^14]: *See generally* February 4, 2000 Letter; May 2, 2000 Letter.

[^15]: *See* February 4, 2000 Letter; May 2, 2000 Letter*.* In its
    letters, IVIDCO does not contend that it has provided service in the
    six years since grant of the license.

[^16]: In its February 4, 2000 Letter, IVIDCO stated that five filings
    either "separately or collectively clearly constitute a standing
    waiver request." February 4, 2000 Letter at 1. However, in ex parte
    oral and written communications, IVIDCO contends that in fact, three
    of the filings are grace period requests. Ex parte presentation by
    Jeffrey Craven on June 1, 2000; Summary Sheet provided by Jeffery
    Craven on June 1, 2000.

[^17]: Letter to Mr. William Caton, Secretary, and Ms. Regina Dorsey,
    Federal Communications Commission, from J. Jeffrey Craven, Esq.,
    dated April 18, 1996 ("April 18, 1996 Letter"); Petition for Rule
    Making, from several IVDS licensees, filed Sept. 4, 1996 ("September
    4, 1996 Rule Making Petition"); Letter to Regina Dorsey, Chief,
    Office of Billings and Collections, Federal Communications
    Commission, from J. Jeffrey Craven, Esq., dated Nov. 18, 1996
    ("November 18, 1996 Letter"); Letter to Jerome Fowlkes, Chief
    Financial Analyst, Wireless Telecommunications Bureau, Federal
    Communications Commission, from J. Jeffrey Craven, Esq., dated Feb.
    10, 1997 ("February 10, 1997 Letter"); Letter Amendment to Petition
    for Rule Making, from several IVDS licensees, filed Jan. 28, 1997
    ("January 28, 1997 Rule Making Petition Amendment").

[^18]: *See generally* February 4, 2000 Letter.

[^19]: Interactive Video and Data Service (IVDS) Licensees, Various
    Requests by Auction Winners, *Order*, FCC No. 95-479, 11 FCC Rcd
    1282 (1995)("*1995 IVDS Omnibus Order*").

[^20]: Wireless Telecommunications Bureau Staff Clarifies "Grace Period"
    Rule for IVDS "Auction" Licensees Paying by Installment Payments,
    *Public Notice*, DA 95-1617, 10 FCC Rcd 10724 (1995) (WTB) ("*IVDS
    Grace Period Public Notice*"); *see also* Wireless
    Telecommunications Bureau Staff Responds to Questions About the
    Broadband PCS C Block Auction, *Public Notice*, Mimeo 54270 (rel.
    June 8, 1995) (WTB) ("*PCS Grace Period Public Notice*") (clarified
    grace period rule in the context of Personal Communications Services
    C block auction).

[^21]: *1995 IVDS Omnibus Order*, 11 FCC Rcd 1282; *IVDS Grace Period
    Public Notice*, 10 FCC Rcd 10724.

[^22]: *IVDS Grace Period Public Notice*, 10 FCC Rcd 10724 ("IVDS
    Licensees that elect to pay for their license in installments will
    have their license conditioned upon full and timely performance of
    all installment payment obligations. The Commission's rules provide
    that a licensee will be deemed in default on its installment
    payments if it is more than 90 days delinquent in making a payment
    to the government."); *see also* *218-219 MHz Order* 15 FCC Rcd at
    1518 ¶ 33 (citing 47 C.F.R. § 1.2110 (1994)).

[^23]: *IVDS Grace Period Public Notice*, 10 FCC Rcd 10724. In 1998, the
    Commission amended the installment payment rules to provide for two
    automatic grace periods of ninety days each, subject to late fees.
    The 1998 amendment of the installment payment rules did not apply to
    installments due prior to the effective date, March 16, 1998. *See*
    Amendment of Part 1 of the Commission's Rules -- Competitive Bidding
    Procedures, Allocation of Spectrum Below 5 GHz Transferred from
    Federal Government Use 4660-4685 MHz, Third Report and Order and
    Second Further Notice of Proposed Rule Making, 13 FCC Rcd 374, 436
    (1997) ("*Part 1 Third Report and Order*"); 47 C.F.R. §
    1.2110(f)(4)(ii)(iii)(1998). In addition, these Part 1 rules have
    recently been amended to reflect the use of quarters for
    implementation of the Commission's payment deadlines and attendant
    grace period rules. *See* Amendment of Part 1 of the Commission's
    Rules-Competitive Bidding Procedures, WT Docket 97-82, *Order on
    Reconsideration of the Third Report and Order, Fifth Report and
    Order, and the Fourth Further Notice of Proposed Rulemaking*, FCC
    00-274 (rel. August 14, 2000) ("*Part 1 Third Report and Order
    Recon*"). The amended Part 1 rules became effective on October 30,
    2000, 60 days after the date of publication in the Federal Register.
    65 Fed. Reg. 52323-01 (Aug. 29, 2000).

[^24]: In both oral and written ex parte communications, counsel for
    IVIDCO clarified that it considered the filings detailed in its
    February 4, 2000 Letter as waiver requests, to actually be grace
    period requests. Ex parte presentation by Jeffery Craven on June 1,
    2000; Summary Sheet provided by Jeffery Craven on June 1, 2000.

[^25]: IVIDCO had an automatic 90-day grace period, from the January 5,
    1996 installment payment due date, in which to remit payment or file
    a grace period request. The automatic 90-day grace period ended
    April 4, 1996.

[^26]: The Commission's acceptance of the late payment does not shield
    IVIDCO from the consequences of subsequently failing to meet the
    Commission's installment payment rules. *See SouthEast Telephone v.
    FCC*, No. 99-1164, 1999 WL 1215855 (D.C. Cir. Nov. 24, 1999); *see
    also* *Chem-Haulers, Inc. v. ICC*, 565 F.2d 728, 730 (D.C. Cir.
    1977); *Texas International Airlines v. CAB*, 458 F.2d 782, 785
    (D.C. Cir. 1971).

[^27]: 47 C.F.R. §1.2110(e)(4)(ii)(1994).

[^28]: Invoice No. 15469 to Marilyn Smith, IVIDCO, L.L.C., from Patton
    Boggs, L.L.P., billed by J. Jeffrey Craven for professional services
    rendered through 02/28/97, dated March 17, 1997.

[^29]: The only document not discussed in this section, the November 18,
    1996 Letter, is merely an attempt to schedule a meeting; and,
    therefore is also not a grace period request.

[^30]: In an ex parte presentation on June 1, 2000, IVIDCO stated that
    it missed its March 1997 payment because it anticipated that a third
    party would make the payment. Ex Parte Meeting with Mr. Jeffrey
    Craven on June 1, 2000. This admission clearly undermines IVIDCO's
    assertion that any of these documents constitute either a grace
    period request, or a pending waiver request.

[^31]: In its February 4, 2000 Letter, IVIDCO stated that five filings
    either "separately or collectively clearly constitute a standing
    waiver request." February 4, 2000 Letter at 1.

[^32]: *See generally* In the Matter of Southeast Telephone, Inc.,
    *Order*, DA 00-328 (rel. February 22, 2000); In the Matter of
    Bernard Pasquet, DA 00-122, *Order* (rel. January 25, 2000).

[^33]: February 4, 2000 Letter.

[^34]: 47 C.F.R. § 1.925.

[^35]: *See* February 4, 2000 Letter at 5-6.

[^36]: The courts have recognized the importance of the Commission's
    default rules and affirmed the Commission's authority to enforce its
    rules. *See generally, Mountain Solutions*, 197 F.3d 512*;
    NextWave*, 200 F.3d 43*.*

[^37]: *See* *NextWave* *Order on Reconsideration*, 15 Fed Rcd 17500.

[^38]: February 4, 2000 Letter at 5*.*

[^39]: 48 C.F.R. § 1.2110(e)(4)(ii)(1994); *IVDS Grace Period PN*, 10
    FCC Rcd 10724; *see also 1995 IVDS Omnibus Order*, 11 FCC Rcd at
    1285 ¶ 19*.*

[^40]: Self Communications, Inc., Reinstatement Application for 218-219
    MHz Service License KIVD0006, Chicago, Illinois and Request for
    Waiver of Sections 1.949(a) and 1.955(a)(1) of the Commission's
    Rules, DA 00-1134, *Order and Notice of Apparent Liability for
    Forfeiture* (rel. May 23, 2000) ("*Self Communications*").

[^41]: Letter from Daniel B. Phythyon, Chief, Wireless
    Telecommunications Bureau, to Thomas Gutierrez, Esq., Counsel for
    Lancaster Communications, Inc., DA 98-2052 (rel. Oct. 9, 1998)
    ("*Lancaster Communications*").

[^42]: Letter from Thomas J. Sugrue, Chief, Wireless Telecommunications
    Bureau, to Lloyd W. Coward, Esq., Counsel for TE-MCG Consortium, DA
    99-258, 14 FCC Rcd. 2173 (1999) ("*TE-MCG*").

[^43]: January 11, 2001 Letter at 2-4. In addition, IVIDCO challenges
    the definition of Eligible Licensees adopted in the September 1999
    *218-219 MHz Order*. Specifically, IVIDCO argues that definition
    unfairly favors licensees who were current in installments as of
    March 16, 1998 over licensees who filed untimely grace period
    requests. January 11, 2001 Letter at 4-5. Any challenge to the
    definition of Eligible Licensees should have been filed as a
    petition for reconsideration within 30 days of publication of the
    *218-219 MHz Order* in the federal register. 47 C.F.R. § 1.429.
    IVIDCO's untimely attempt to challenge the definition is rejected.

[^44]: *Self Communications*, ¶ 7.

[^45]: *Self Communications*, ¶ 8.

[^46]: *NextWave Order on Reconsideration,* 15 FCC Rcd at 17512-17513
    (citations omitted).

[^47]: Lakeland PCS LLC And Cricket Licensee (Lakeland) Inc., For
    Assignment Of PCS License For Station KNLG741, File No. 0000191738,
    Public Notice Report No. 597*,* DA 00-2669, *Second Order on
    Reconsideration* (rel. November 27, 2000) ("*Lakeland*") (citations
    omitted).

[^48]: Request for Extension of the C and F Block Installment Payments,
    WT Docket 97-82, 14 FCC Rcd 6080 (1999) (the Commission declined to
    grant a waiver of the resumption date for C block licensees as the
    Commission had committed no act that could reasonably be construed
    as constructively waiving the resumption date; had expressly refused
    to grant waiver requests of the resumption payment date; and
    distinguished *Cordell, Lancaster*, *TE-MCG* as situations that
    presented facts indicative of constructive waiver that were not
    present in Southeast), *aff\'d* *Southeast v. Federal Communications
    Commission*, No. 99-1164, 1999 WL 1215855 (D.C. Cir. 1999) (*per
    curiam*).

[^49]: *See* July 24, 2000 Letter*.*

[^50]: *See* 47 C.F.R. § 1.2110(e)(4)(ii) (1994).