James Barker

Latham & Watkins

Attorneys at Law

1001 Pennsylvania Avenue, NW

Suite 1300

Washington, DC 20004-2505

Dear Mr. Barker:

This letter is in response to the "Request for Waiver and Leave to
Amend" ("Waiver Request") that you filed and amended on November 20,
2000 on behalf of your client, Theta Communications, L.L.C. ("Theta").
Theta requests permission to amend its Auction No. 35 short-form
application (FCC Form 175) to delete from its application spectrum
returned to the Commission by Fortunet Communications, L.P.
("Fortunet"),[^1] an affiliate of certain Theta controlling interests.
Under the Commission's rules,[^2] Theta is ineligible to bid on C block
spectrum in BTA077, BTA215, BTA227, BTA330 and BTA398 because Fortunet,
a C block licensee, returned either all 30 MHz or disaggregated 15 MHz
portions of the aforementioned spectrum to the Commission pursuant to
the disaggregation, prepayment and/or amnesty/prepayment election that
the Commission made available to C block licensees prior to Auction No.
22.[^3]

According to Theta, it inadvertently chose all markets in its FCC Form
175 because Theta and its controlling interests assumed that all the
spectrum surrendered by Fortunet had been purchased in Auction No. 22 or
in the aftermarket. Theta contends that waiver would be appropriate
because the gaming and collusion concerns that underlie Rule 1.2105(b)
are not present. Theta further argues that permitting it to make the
requested changes to its FCC Form 175 would be in the public interest
because it would promote competition and would not prejudice other
applicants. Finally, Theta contends that its Waiver Request should be
granted because the alternative---disqualification---would prevent its
participation in this auction.

Upon review of your pleading, we are persuaded that granting Theta's
Waiver Request is in the public interest and is consistent with the
Commission's practice.[^4] Consequently, we will permit Theta to amend
its FCC Form 175 to delete BTA077, BTA215, BTA227, BTA330 and BTA398
from its selected licenses.

This action is taken under delegated authority pursuant to Section 0.331
of the Commission's rules.[^5]

Sincerely,

Margaret Wiener

Deputy Chief, Auctions and Industry Analysis Division

Wireless Telecommunications Bureau

[^1]: *See* "Wireless Telecommunications Bureau Announces Broadband
    Personal Communications Services C Block Elections," *Public
    Notice,* 13 FCC Rcd 16,705 (WTB 1998), App. A (listing Fortunet C
    block elections and returned and retained licenses) ("*C Block
    Election PN*")

[^2]: 47 C.F.R. § 24.709(b)(9)(ii); Amendment of the Commission's Rules
    Regarding Installment Payment Financing for Personal Communications
    Services (PCS) Licenses, WT Docket No. 97-82, *Fourth Report and
    Order*, 13 FCC Rcd 15,743, 15,750-51, ¶¶ 12-13 (1998); Amendment of
    the Commission's Rules Regarding Installment Payment Financing for
    Personal Communications Services (PCS) Licenses, WT Docket No.
    97-82, *Order on Reconsideration of the Second Report and Order*, 13
    FCC Rcd 8345, 8360-61 ¶¶ 37, 28 and 41 and 8367 ¶ 50 (1998) ("*C
    Block Reconsideration Order*").

[^3]: Amendment of the Commission's Rules Regarding Installment Payment
    Financing for Personal Communications Services (PCS) Licenses, WT
    Docket No. 97-82, *Second Report and Order and Further Notice of
    Proposed Rule Making*, 12 FCC Rcd 16,346 (1997); *C Block
    Reconsideration Order*, 13 FCC Rcd 8345; *see* *C Block Election*
    *PN*, 13 FCC Rcd 16,705.

[^4]: *See* Letter to Jeanne W. Stockman, Esq., Counsel for Tri-States
    PCS, Inc. from Amy Zoslov, Chief, Auctions and Industry Analysis
    Division, Wireless Telecommunications Bureau, regarding Amendment to
    FCC Form 175 (dated March 3, 1999); Letter to David F. Kaufman,
    Esq., Counsel for Antigone Communications Limited Partnership from
    Kathleen O'Brien Ham, Chief, Auctions and Industry Analysis
    Division, Wireless Telecommunications Bureau, regarding Amendment to
    FCC Form 175 (Application to Participate in Broadband PCS Auction)
    (dated December 8, 1995); s*ee also Wait Radio v. FCC*, 418 F.2d
    1153 (D.C. Cir. 1969).

[^5]: ^?^ 47 C.F.R. § 0.331.