**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | WT Docket No. 02-276         |
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| Disposition of Down Payment and  | ) |                              |
| Pending Applications By Certain  | * |                              |
| Winning Bidders in Auction No.   | * |                              |
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| Requests for Refunds of Down     | * |                              |
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| Made In Auction No. 35           | * |                              |
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**ORDER AND ORDER ON RECONSIDERATION**

**Adopted:** November 14, 2002 **Released:** November 14, 2002

By the Commission: Chairman Powell and Commissioner Abernathy issuing
separate statements; Commissioner Martin approving in part, dissenting
in part, and issuing a statement.

Table of Contents

Heading Paragraph \#

I. Introduction and summary 1

II\. Background 2

III\. Withdrawal of Long-Form Applications and Refund of Deposits 7

A. Single Election For Withdrawal of All Applications 12

B. Refund of Deposits, Default Payments, and Eligibility to Acquire
Spectrum 15

IV\. ORDERING CLAUSES 20

Appendix A - Comments, Reply Comments, and *Ex Parte* Filings 17

APPENDIX B - PROCEDURES for implementing the order 20

# Introduction and summary

1.  In this Order, we resolve the issues raised in our September 12,
    2002 *Public Notice*[^1] and grant relief to eligible winning
    bidders in Auction No. 35 ("Eligible Auction 35 Winners")[^2] with
    respect to spectrum associated with licenses that had previously
    been issued to NextWave Personal Communications Inc., NextWave Power
    Partners Inc. (collectively "NextWave") and Urban Comm-North
    Carolina, Inc. ("Urban Comm"). Specifically, we will dismiss
    long-form applications for this spectrum and refund associated down
    payments, as follows:

-   **Single election for dismissal of all applications.** Pursuant to
    an election by Eligible Auction 35 Winners, we will dismiss with
    prejudice pending Auction No. 35 long-form applications for spectrum
    associated with licenses previously issued to NextWave and Urban
    Comm ("Pending Applications").[^3] Each winning bidder must make a
    *single election* covering all of the licenses designated in its
    Pending Application(s) for licenses of NextWave/Urban Comm spectrum
    to obtain such relief.

-   **Refund of deposits and waiver of default rules; no restrictions on
    future license acquisition.** We will refund to payors of record
    pursuant to appropriate instructions down payments associated with
    the dismissed applications; will waive default rules; and will not
    impose any restrictions based on this relief on these bidders'
    ability to acquire spectrum in future auctions.

    We believe the public interest is served by this plan of relief,
    which provides Eligible Auction 35 Winners an opportunity for
    finality and certainty with respect to all obligations involving the
    NextWave/Urban Comm Spectrum. In addition, we delegate to the
    Wireless Telecommunications Bureau ("Bureau") and the Office of
    Managing Director the authority and responsibility for expeditiously
    implementing this Order and the accompanying procedures outlined in
    the Public Notice attached at Appendix B.

# Background

2.  Thirty-five bidders won 422 Personal Communications Services ("PCS")
    licenses in the C and F spectrum blocks for a total of approximately
    \$16.9 billion dollars in net bids in Auction No. 35.[^4] The
    spectrum associated with 259 of the licenses sold in Auction No. 35
    had been previously licensed to either NextWave or Urban Comm.[^5]
    Pursuant to Commission rules, these licenses automatically cancelled
    due to non-payment of the associated license payments by NextWave
    and Urban Comm.[^6] These defaults occurred after both entities had
    filed for bankruptcy. Of the 35 winning bidders in Auction No. 35,
    22 bidders won licenses for NextWave/Urban Comm Spectrum. The net
    amount bid for those licenses in Auction No. 35 was approximately
    \$16.3 billion. Shortly after the close of the auction, pursuant to
    Section 1.2107 of the Commission's rules, each winning bidder was
    required to have on deposit a down payment amount equal to twenty
    percent of its net winning bids.[^7]

3.  After the conclusion of Auction No. 35, the United States Court of
    Appeals for the District of Columbia Circuit ("D.C. Circuit"), in
    *NextWave v. FCC*, ruled that Section 525 of the Bankruptcy Code,
    which provides that a "governmental unit" may not "revoke" a
    bankrupt\'s or debtor\'s license "solely because such bankrupt or
    debtor \... has not paid a debt that is dischargeable \... under
    this title,"[^8] prevented the cancellation of licenses held by
    NextWave.[^9] Consistent with the mandate issued by the D.C. Circuit
    implementing its holding in *NextWave v. FCC*,[^10] the Bureau,
    during this timeframe, returned to active status the licenses that
    previously had been issued to NextWave, subject to "litigation
    and/or regulatory matters."[^11] The United States and the
    Commission petitioned the Supreme Court of the United States for
    writ of certiorari.[^12] At the time the writ for certiorari was
    pending, the U.S. Government, Commission staff, NextWave, and
    certain Auction No. 35 winners culminated settlement discussions and
    executed an agreement that was designed to settle the litigation,
    and permit the award of licenses for the NextWave/Urban Comm
    Spectrum to the Auction No. 35 winners.[^13] However, necessary
    implementing legislation was not passed. Subsequently, the Supreme
    Court granted the petition for certiorari and heard oral argument on
    October 8, 2002.[^14] A decision is pending. In addition to being
    the focus of litigation, NextWave/Urban Comm Spectrum won in Auction
    No. 35 continues to be the subject of pending regulatory proceedings
    concerning the previously-granted licenses.[^15]

4.  In February 2002, Cellco Partnership d/b/a Verizon Wireless
    ("Verizon Wireless") filed with the D.C. Circuit Court of Appeals a
    Petition to Enforce the Mandate,[^16] arguing that the Commission
    had violated the D.C. Circuit's mandate in *NextWave v. FCC* by
    returning to active status licenses previously issued to NextWave
    while retaining the related down payments.[^17] Verizon Wireless
    asked that the Commission be ordered to refund the full amount of
    Verizon Wireless's down payment for the NextWave licenses and to
    confirm that Verizon Wireless's obligations with respect to Auction
    No. 35 had been extinguished.[^18] The court denied Verizon
    Wireless's petition, stating that the relief sought did not fall
    within its mandate.[^19]

5.  In response to a joint request by a group of Auction No. 35 winning
    bidders, including Verizon Wireless, for a refund of their down
    payments in that auction,[^20] the Commission released an Order (the
    "*Partial Refund Order*") on March 27, 2002, pursuant to which it
    returned \$2.8 billion, or 85 percent, of the down payments made for
    the spectrum at issue.[^21] The Commission retained an amount from
    each bidder's down payment equal to 3 percent of the winning
    bidder's total net bids for the licenses, or a total of
    \$489,548,061, an amount sufficient to cover possible future default
    payments.[^22] The Commission rejected the claim made by Verizon
    Wireless in its letter dated March 5, 2002,[^23] holding that
    Verizon Wireless had assumed a known risk of delay and concluding
    that Auction No. 35 winning bidders continue to be responsible for
    paying their full bid amounts.[^24] The Commission also denied an
    opposition to the Auction No. 35 winning bidders' refund request
    filed by Eldorado Communications, LLC ("Eldorado") on the grounds
    that Eldorado lacked standing to challenge the request for
    refund.[^25] Eldorado filed a petition for reconsideration,
    currently pending.[^26]

6.  On September 12, 2002, we released a public notice requesting
    comment on the disposition of both the remaining down payment funds
    and the Pending Applications.[^27] In response to the *Public
    Notice*, we have received 23 comments, 12 reply comments, and
    additional filings.[^28] In this *Order*, we address these comments
    and resolve the issues raised in the *Public Notice*. We also
    address Eldorado's pending petition for reconsideration of the
    *Partial Refund Order*.

# Withdrawal of Long-Form Applications and Refund of Deposits

7.  *Background.* We initiated this proceeding out of our concerns about
    the effect on consumers of the financial health of wireless
    telecommunications providers in light of the current, sustained
    economic downturn and its effect on the telecommunications sector,
    as well as continuing uncertainties arising out of litigation over
    the subject licenses. In our *Public Notice*, we pointed out that
    our consideration of any possible relief would have to be balanced
    against important public interest concerns in maintaining the
    integrity of our spectrum auction process and program.[^29]

8.  With regard to possible relief, the *Public Notice* invited comment
    on certain alternatives for implementing any policy of allowing
    winning bidders to opt out of the obligations incurred as a result
    of Auction No. 35.[^30] In particular, we set out two specific
    "opt-out" scenarios under which certain bidders might be permitted
    to seek refunds of remaining amounts deposited in connection with
    their winning bids and request dismissal of some, or all, of their
    pending license applications for NextWave/Urban Comm spectrum.[^31]
    As described below, one scenario provided for a single election,
    complete dismissal option, while the other described a selective
    dismissal approach.[^32] Upon request of an Eligible Auction 35
    Winner for dismissal of its Pending Applications for NextWave/Urban
    Comm Spectrum, the Commission would refund to the payor of record
    the full amount of monies on deposit for any dismissed applications.
    The *Public Notice* further stated that applicants that elect to
    pursue such relief would lose all claims to the Auction No. 35
    licenses as to which Eligible Auction 35 Winners sought dismissal of
    their applications, and would be required to relinquish any other
    claims arising out of Auction No. 35.[^33] Both scenarios also
    envision that the Commission would waive, in whole or part, its
    default rules for all dismissed applications and, subject to
    coordination with the Department of Justice (pursuant to applicable
    federal claims collection standards), forgive any debt incurred as a
    result of Auction No. 35.[^34] The *Public Notice* also sought
    comment on whether to bar such entities from acquiring such licenses
    for some future time period.[^35] Finally the *Public Notice*
    inquired whether to require applicants to reaffirm their commitment
    to their Auction No. 35 obligations should they decide to retain any
    of their Pending Applications on file.[^36]

9.  The principal difference between the two "opt-out" scenarios
    outlined in the *Public Notice* is whether to allow bidders to seek
    dismissal of their Pending Application(s) with respect to all
    NextWave/Urban Comm Spectrum, or to permit a selective dismissal
    approach, under which an individual applicant could "pick and
    choose" among the licenses applied for, maintaining its application
    with respect to some licenses, and not others.[^37]

10. *Decision*. As explained below, we will provide Eligible Auction 35
    Winners with the option of withdrawing with prejudice their Pending
    Application(s) with respect to all NextWave/Urban Comm Spectrum. We
    have previously found that the Commission is under no legal
    obligation to provide relief to these bidders who accepted
    responsibility for the risk (including litigation risk) they assumed
    by placing their bids on this spectrum.[^38] However, such relief in
    this particular instance and at this time is within our discretion
    and is consistent with our obligations to balance various public
    interest considerations under the Communications Act of 1934, as
    amended.[^39] We have recognized that the telecommunications sector
    is currently weathering economic conditions that threaten negative
    effects for consumers. Already, hundreds of thousands of
    telecommunications workers have lost jobs,[^40] the market
    capitalization of wireless and other communications-related
    companies has significantly declined,[^41] and
    telecommunications-related bankruptcies have increased.[^42]
    Mounting debt loads and constricted capital markets are causing
    telecommunications providers to reign in capital investment that is
    necessary to develop and deploying new service offerings to
    consumers, such as those that might be offered using this PCS
    spectrum.[^43] Commenters also point out that contingent liabilities
    from Auction No. 35 affect a broad segment of the nation's wireless
    companies,[^44] as well as equipment manufacturers, tower companies,
    and other related firms.[^45] In a recent letter, 43 Members of
    Congress expressed similar views, noting that the contingent
    liability carried on the books of Auction No. 35 bidders "is harming
    consumers, stifling investment, and slowing potential recovery of
    this important industry sector."[^46] Since we granted bidders
    limited relief in our March 2002 *Partial Refund Order*, we have
    been presented with significant additional evidence that the
    telecommunications sector is continuing to act as a drag on the
    economy as a whole, to the detriment of consumers.[^47] Moreover, in
    that time, increasing numbers of workers in the telecommunications
    industry (and the wireless sector, in particular) have been laid
    off.[^48] Firms in the telecommunications industry are
    extraordinarily interdependent, which means that problems with
    individual companies have a greater negative effect on other
    telecommunications companies relative to other industry
    sectors.[^49] Further, as the *Public Notice* recognized, the
    applications that are the subject of this proceeding seek licenses
    for spectrum that continues to be the subject of the D.C. Circuit's
    mandate.[^50] We find it significant that this litigation was
    prosecuted by third parties and involved circumstances beyond the
    control of the Auction No. 35 winning bidders.[^51] Given the status
    of these proceedings, the Commission cannot make the NextWave/Urban
    Comm spectrum available to the Auction 35 winning bidders at this
    time.[^52] Our action today is justified by the concurrence of a
    unique situation where capital and spectrum were tied up for more
    than two years by litigation, and the worsening economic conditions
    in the wireless industry have had a substantial adverse effect on
    consumers. The combination of these factors leads to today's
    decision. Either by itself would not necessarily have supported this
    action.

11. We note that nearly all commenters agree that the public interest
    would be served by giving Eligible Auction 35 Winners the option of
    withdrawing their Pending Applications.[^53] Commenters contend that
    severe economic conditions combined with uncertainties about when
    this spectrum will become available for use by these bidders may be
    making it more difficult for wireless interests to weather the
    current economic storm.[^54] Under these circumstances, we agree
    with those who suggest that relief for Eligible Auction 35 Winners
    may promote greater stability in the wireless sector and would allow
    firms electing to accept relief to focus their resources on
    providing communications services to consumers. Further, granting
    relief for bidders may give Eligible Auction 35 Winners and third
    party holders of spectrum additional certainty in which to make
    economic decisions about how to address capacity constraints and
    meet consumer needs.[^55] With the removal of their Auction No. 35
    payment obligations and refund of deposits, Eligible Auction 35
    Winners that elect relief will have financial resources to develop
    new services, deploy new technologies, and acquire additional
    spectrum.[^56] Accordingly, relief will help further the
    Commission's statutory obligations of encouraging the development
    and deployment of new technologies and services and promoting
    economic opportunity and competition[^57] by allowing Eligible
    Auction 35 Winners and their investors, who collectively provide
    service to approximately 75% of all wireless consumers,[^58] to
    redeploy financial and other resources to expand networks and
    enhance existing services to meet consumers' needs.

## Single Election For Withdrawal of All Applications

12. We will provide Eligible Auction 35 Winners with the option of
    requesting dismissal of all of their Pending Applications, or
    maintaining all of their Pending Applications on file. Under this
    "single election" approach, applicants will not be permitted to
    selectively withdraw Pending Applications for particular licenses
    and maintain them for others. We believe that this approach is
    warranted and best upholds the integrity of our auction
    program.[^59] A selective opt-out policy is not only complex,[^60]
    but could also necessitate the adoption of regulatory safeguards to
    prevent strategic anticompetitive behavior. In particular, the
    Commission has previously found that "cherry-picking" of licenses is
    contrary to the public interest because it undercuts the
    interdependency of licenses available in a subsequent
    reauction.[^61] A selective opt-out approach may have the additional
    disadvantage of leading to future defaults and additional requests
    for relief if market conditions do not improve in the near term.

13. By contrast, a single election involving all Pending Applications is
    easier to administer and may be implemented quickly, thereby
    expediting the realization of benefits for those that elect relief.
    Under our approach, Eligible Auction 35 Winners will be permitted to
    elect relief within a period not to exceed 45 days from the release
    of this Order. The majority of the commenters urge the Commission to
    ensure that any relief is granted quickly so that the benefits come
    sooner.[^62] We are not persuaded by the arguments of those parties
    that advocate a selective dismissal approach and contend that the
    Commission should provide a lengthy period for bidders to make an
    election prior to receiving a refund.[^63] For example, Alaska
    Native Wireless, LLC ("Alaska Native") requests that the Commission
    "provide a commercially reasonable period of at least 180 days
    during which Auction No. 35 bidders may elect to be relieved of
    their associated rights and obligations."[^64] Alaska Native argues
    that designated entities will need such a period of time to
    undertake due diligence to determine how each license fits into its
    plans, to undertake any necessary restructuring of contractual
    arrangements for financing, management, and the like, and to obtain
    any necessary Commission approvals for necessary restructuring.[^65]
    Similarly, Salmon proposes a two-step opt-out process that would
    allow applicants to delay making their final election until after
    the completion of the NextWave and Urban Comm proceedings, which
    might potentially extend uncertainties regarding these applications
    for many more months.[^66] Such concerns, however, are predicated on
    a selective dismissal approach in which bidders would have to
    reevaluate the strategic and business decisions upon which they
    relied to participate in Auction No. 35.[^67]

14. We are mindful that our decision today may present a difficult
    choice for many applicants. However, this approach preserves
    opportunities for designated entities to participate in the
    provision of spectrum-based services by allowing them either to (1)
    continue to pursue their license applications, or (2) elect to
    withdraw their applications and redirect capital through other
    mechanisms (such as the secondary market transactions or future
    spectrum auctions).[^68] Moreover, a single election approach
    reduces concerns that an Eligible Auction 35 Winner might elect to
    retain a small number of strategically-placed licenses for purposes
    of impairing the ability of other parties in a future auction from
    acquiring an efficiently-sized group of licenses.[^69] Finally, we
    believe that a selective approach could lead to further litigation
    that could undercut our statutory mandates to promote the rapid
    deployment of new technologies and services and efficient and
    intensive use of spectrum.[^70] In light of such risks, the relief
    we adopt today is in the public interest.

## Refund of Deposits, Default Payments, and Eligibility to Acquire Spectrum

15. For Eligible Auction 35 Winners that elect relief, we will refund
    all monies on deposit held in connection with their Pending
    Applications, and will not assess any default payments or impose any
    restrictions on participating in future auctions. However, we will
    retain the monies on deposit with respect to Pending Applications
    (*i.e.*, three percent of the net winning bids) for any bidder that
    wants to maintain the *status quo*, and not seek relief.[^71] In our
    recent *Partial Refund Order*, we found that it would best serve the
    public interest to return the bulk of Eligible Auction 35 Winners'
    down payments, but to retain on deposit three percent of the net
    winning bids.[^72] Our decision was grounded in our recognition that
    retaining sufficient money to cover any future default payments
    would preserve the integrity of the auction and promote the public
    interest in furthering the deployment of service.[^73] In the
    extraordinary circumstances that now face us, we believe that
    bidders should have an opportunity to obtain complete monetary
    relief with respect to Pending Applications that are dismissed
    pursuant to the relief described in this Order. We will waive those
    dismissal and default provisions for bidders that elect to take the
    benefits of this relief so as to further the public interest
    objectives that we believe our complete dismissal approach
    promotes.[^74]

16. We will not enforce the default rules against Auction 35 winning
    bidders that elect a complete dismissal of their Pending
    Applications. We note that commenters nearly unanimously advocate
    that the Commission refrain from imposing default payments on
    parties that choose to withdraw their Pending Applications.[^75]
    However, the public interest in preserving the integrity of the
    auction requires us to decline the suggestion that the Commission
    return deposits regardless of whether winning bidders seek dismissal
    of their applications.[^76]

17. Our default payment rule is intended to serve two significant
    purposes. First, as we observed in the *Partial Refund Order*,
    retaining a deposit for Eligible Auction 35 Winners with Pending
    Applications provides insurance against any future defaults.[^77]
    Second, such deposits demonstrate continued interest in being
    awarded the licenses.[^78] Our decision in this instance to permit
    Eligible Auction 35 Winners to withdraw all of their Pending
    Applications eliminates the need to protect against future defaults
    with respect to these licenses and, for those making that election
    to continue to demonstrate interest. Significantly, we have no
    evidence that bidders were insincere in their attempts to acquire
    Auction No. 35 licenses. In this regard, we note that a number of
    Eligible Auction 35 Winners participated in a settlement process
    last year that demonstrated a strong willingness to pay for and make
    use of the licenses.[^79] Accordingly, we do not find that our
    default rules would be undermined by providing relief here with
    respect to dismissed applications for NextWave/Urban Comm Spectrum.
    However, we cannot say the same with respect to winning bidders that
    do not elect dismissal. For those applicants, the continued pendency
    of their applications requires that we hold at least the amount on
    deposit to further the purposes of the default rule.[^80]

18. Under these circumstances, it would not be appropriate based on this
    election to bar or otherwise disqualify those that withdraw their
    Pending Applications from participating in future auctions of this
    spectrum.[^81] We emphasize that our decision does not in any way
    change previously-established eligibility requirements for licenses
    for this spectrum.[^82] We believe that a bar would inappropriately
    impede access to spectrum associated with the dismissed applications
    by many participants in the industry, potentially undermining the
    goal of awarding licenses to parties that value them most highly. In
    addition, we find that present circumstances differ appreciably from
    other contexts in which the Commission has faced requests by winning
    bidders for relief from auction obligations. Certain winning bidders
    in Auction No. 5 have used this opportunity to argue that the
    Commission should extend relief to them as well.[^83] Eldorado, for
    example, argues that there is no justification for treating Auction
    No. 35 winners more favorably than Auction No. 5 winners.[^84] We
    note that the Commission did extend substantial relief to Auction
    No. 5 and No. 10 winners that had become C block licensees.[^85]
    Here the Commission has been unable to grant licenses because of the
    D.C. Circuit's ruling in the prolonged *NextWave v. FCC*
    litigation.[^86] Moreover, those Auction No. 5 and No. 10 winners
    that did not become licensees failed to do so because they defaulted
    on their post-auction payment obligations, an action under their own
    control. For this reason, we find that winning bidders in Auctions
    No. 5 and No. 10 are not similarly situated to the Auction No. 35
    winners, as some commenters suggest, and deem their requests for
    relief to be outside the scope of this proceeding.[^87]

19. We also address the pending petition for reconsideration filed by
    Eldorado.[^88] Eldorado seeks reconsideration of our rejection in
    the *Partial Refund Order* of its opposition to the relief proposed
    in the Joint Request.[^89] We concluded in the *Partial Refund
    Order* that Eldorado, not having participated in Auction No. 35,
    lacked standing to protest our prospective decision to provide
    relief to Auction No. 35 winners.[^90] In its petition, Eldorado
    repeats its substantive objections to the partial refund using the
    same rationale for opposing relief that it articulates in its
    comments in this proceeding. Eldorado also disputes that it lacked
    standing and argues that we improperly rejected, based on its lack
    of standing, consideration of Eldorado's earlier objections.
    Eldorado further argues that we incorrectly characterized our action
    in the *Partial Refund Order* as a rule waiver. According to
    Eldorado, had we properly styled it a rulemaking, standing would not
    have been an issue. We disagree. The *Partial Refund Order*
    responded to a request that we refrain from applying our rules in a
    specific instance. The fact that a decision to waive one of our
    rules is necessarily preceded by consideration of the rule's effect
    does not transform the decision making process into a rule making
    proceeding. If it did, the Commission would be required to provide
    notice and seek comment every time it considered a request for rule
    waiver. We also continue to abide by our initial conclusion that
    Eldorado lacked standing to protest the possibility of relief for
    Auction No. 35 winners. As we stated in the *Partial Refund Order*,
    Eldorado failed to show a sufficient connection to the challenged
    action to establish that it would be injured by that action. In
    fact, Eldorado did not even allege that it might be injured; it
    simply used its opposition to argue that Auction No. 5 winners
    should be afforded similar relief.[^91] Accordingly, Eldorado's
    petition is denied.

# ORDERING CLAUSES

20. IT IS ORDERED that, pursuant to Sections 4(i), 5(b), 5(c)(1),
    303(r), and 309(j) of the Communications Act of 1934, as amended, 47
    U.S.C. Sections 154(i), 155(b), 156(c)(1), 303(r), and 309(j), the
    Petition for Reconsideration of Eldorado Communications, LLC IS
    DENIED.

21. IT IS FURTHER ORDERED that each winning bidder in Auction No. 35 of
    spectrum associated with licenses that had previously been issued to
    NextWave or Urban Comm shall have an opportunity for a period of 45
    days from the release of this Order and attached procedures to elect
    to obtain relief with respect to that spectrum.

22. IT IS FURTHER ORDERED that 47 C.F.R §§ 1.934, 1.2107, and 1.2109 of
    the Commission's rules are waived to the extent necessary to permit
    those bidders that elect to withdraw their pending long-form
    applications to do so without penalty and receive a refund of any
    remaining down payments made in Auction No. 35, provided such
    bidders comply strictly with the procedures established for
    implementation of this order, subject to approval by the Department
    of Justice, which has authority to settle litigation (and disputes
    posing the threat of litigation) involving the United States, as
    well as authority to review resolutions of other claims by and
    against the United States.

23. IT IS FURTHER ORDERED that AUTHORITY IS HEREBY DELEGATED to the
    Wireless Telecommunications Bureau and the Office of Managing
    Director to implement the policies and procedures for those winning
    bidders in Auction No. 35 for spectrum licenses that had previously
    been issued to NextWave or Urban Comm to elect to withdraw their
    long-form applications and obtain full refunds of all amounts on
    deposit on account of such bids.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

# Appendix A - Comments, Reply Comments, and *Ex Parte* Filings in WT Docket No. 02-276 {#appendix-a---comments-reply-comments-and-ex-parte-filings-in-wt-docket-no.-02-276 .unnumbered}

**[COMMENTS]{.underline}**

1.  3DL Wireless, L.L.C. ("3DL") 10/11/2002

2.  Alaska Native Wireless, L.L.C. ("Alaska Native Wireless") 10/11/2002

3.  Alpine PCS, Inc. ("Alpine") 10/11/2002

4.  Black Crow Wireless, L.P. ("Black Crow") 10/11/2002

5.  Cellular Telecommunications & Internet Association ("CTIA")
    10/08/2002

6.  Cingular Wireless L.L.C. ("Cingular") 10/11/2002

7.  Cook Inlet Region, Inc. ("Cook Inlet") 10/11/2002

8.  DCC PCS, Inc. ("DCC PCS") 10/10/2002

9.  Eldorado Communications, L.L.C. ("Eldorado") 10/11/2002

10. Greater Boston Chamber of Commerce 10/11/2002

11. Joseph Friedman ("Friedman") 09/18/2002

12. Lafayette Communications Company, L.L.C. ("Lafayette") 10/11/2002

13. Leap Wireless International ("Leap") 10/11/2002

14. Nextel Communications, Inc. ("Nextel") 10/11/2002

15. OnQue Communications, Inc. ("OnQue") 10/11/2002

16. PCS Partners, L.P. ("PCS Partners") 10/11/2002

17. Qualcomm Incorporated ("Qualcomm") 10/11/2002

18. Salmon PCS, L.L.C. ("Salmon") 10/11/2002

19. Scott Reiter ("Reiter") 10/10/2002

20. T-Mobile USA, Inc. ("T-Mobile") 10/11/2002

21. The Progress & Freedom Foundation ("Progress & Freedom") 10/11/2002

22. Triton PCS Holdings, Inc. ("Triton") 10/11/2002

23. Cellco Partnership d/b/a Verizon Wireless ("Verizon Wireless")
    10/21/2002

**[REPLY COMMENTS]{.underline}**

1.  AT&T Wireless Services, Inc. ("AT&T")   10/21/2002 

2.  Alaska Native Wireless 10/21/2002

3.  Cingular 10/21/2002

4.  Cook Inlet/VS GSM V PCS, L.L.C. ("Cook Inlet") 10/21/2002

5.  Crown Castle USA, Inc. ("Crown Castle") 10/21/2002

6.  Eldorado Communications, L.L.C. ("Eldorado") 10/21/2002

7.  Mountain Solutions, Inc. ("Mountain Solutions") 10/21/2002

8.  Salmon 10/21/2002

9.  Summit Wireless, L.L.C. ("Summit") 10/21/2002

10. T-Mobile 10/21/2002

11. Verizon Wireless 10/21/2002

12. Vincent D. McBride ("McBride") 10/21/2002

**[LETTERS]{.underline}**

1.  Mesa Communications Group ("Mesa") 10/23/2002

2.  Peter C. Cramton, University of Maryland 08/15/2002

3.  Donald Evans, Secretary, US Department of Commerce 10/10/2002

4.  Rep. John Tanner 10/11/2002

5.  Rep. Greg Ganske 10/01/2002

6.  Rep. Rick Boucher 10/10/2002

> Rep. Robert Scott
>
> Rep. Thomas Davis
>
> Rep. Virgil Goode, Jr.
>
> Rep. Bob Goodlatte
>
> Rep. Randy Forbes
>
> Rep. JoAnn Davis
>
> Rep. Edward Schrock
>
> Rep. Eric Cantor

7.  Rep. Rick Boucher 10/04/2002

> Rep. Tom Latham
>
> Rep. Zoe Logren
>
> Rep. Charles Pickering
>
> Rep. George Radanovich
>
> Rep. Roy Blunt
>
> Rep. Bobby Rush
>
> Rep. Thomas Sawyer
>
> Rep. Robert Scott
>
> Rep. John Shimkus Rep. Michael Simpson
>
> Rep. Clifford Stearns
>
> Rep. Ted Strickland
>
> Rep. Bart Stupak
>
> Rep. Lee Terry
>
> Rep. Mike Thompson
>
> Rep. Edolphus Towns
>
> Rep. Fred Upton
>
> Rep. Greg Waldon
>
> Rep. Ed Whitfield
>
> Rep. Joe Barton
>
> Rep. Charles Bass
>
> Rep. Mary Bono
>
> Rep. Ed Bryant
>
> Rep. John Chris
>
> Rep. Randy Cunningham
>
> Rep. Thomas Davis
>
> Rep. Robert Ehrlich, Jr.
>
> Rep. Eliot Engel
>
> Rep. Mark Foley
>
> Rep. Barney Frank
>
> Rep. Paul Gilmore
>
> Rep. Gene Green
>
> Rep. Jim Greenwood
>
> Rep. Ralph Hall
>
> Rep. Jeff Miller
>
> Rep. Joe Wilson
>
> Rep. Diane Watson
>
> Rep. Susan Davis

8.  Sen. Ernest Hollings 10/28/02

> Sen. John Kerry
>
> Sen. Sam Brownback

**[*EX PARTE* FILINGS]{.underline}**

1.  Alaska Native Wireless 10/08/2002

2.  Salmon PCS, LLC 09/18/2002

3.  Verizon Wireless 10/24/2002

4.  Verizon Wireless 10/24/2002

5.  Verizon Wireless 10/21/2002

# APPENDIX B - PROCEDURES FOR IMPLEMENTING THE ORDER {#appendix-b---procedures-for-implementing-the-order .unnumbered}

In this Appendix, we provide the procedures that must be followed by
Eligible Auction 35 Winners[^92] requesting dismissal of their Pending
Applications[^93] and by Auction No. 35 payors of record requesting a
refund of their remaining Auction No. 35 deposits associated with
Pending Applications of which dismissal is sought. In both cases,
requests must be made within **45** days after release of this Order. In
addition, we provide information regarding coordination with the
Department of Justice.

**[Coordination with the Department of Justice]{.underline}**

Eligible Auction 35 Winners that wish to elect relief pursuant to the
Order must contact Patricia M. McCarthy, of the Commercial Litigation
Branch at the Department of Justice (DOJ) at 202- 514-7300 for
coordination and to obtain approval. Once Eligible Auction 35 Winners
obtain such approval, that information will be coordinated with the
Wireless Telecommunications Bureau ("Bureau") and the application
dismissal and refund process will proceed.

**[Instructions for Filing a Request for the Dismissal of Pending
Applications]{.underline}**

In order to elect relief pursuant to the Order, Eligible Auction 35
Winners must, within **45** days after release of this Order, file as an
amendment in the Commission's Universal Licensing System (ULS) to their
Pending Applications, an exhibit requesting dismissal of such
applications.

Each applicant requesting dismissal must upload such request as an
exhibit to its Form 601. The exhibit should be identified as the
"Dismissal Request." Applicants should use the Attachment screen
provided within the electronic filing software to submit their exhibits
as uploaded files and should select the appropriate attachment type. The
electronic filing software will accept Word, Word Perfect, Adobe
Portable Document Format (PDF), and ASCII text files only. See
http://wireless.fcc.gov/uls/support/help/help_attach.html for a full
list of acceptable file formats. **Do not add password protection to
attached files**.

We suggest the following language for the Dismissal Request:

> Pursuant to the Commission's order entitled 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,
> WT Docket 02-276, *Order and Order on Reconsideration*, FCC 02-311,
> (rel. Nov. 14, 2002) ("*Final Refund Order*"), \[name of applicant\]
> hereby requests dismissal with prejudice of its Pending Application,
> as the term "Pending Application" is defined in the *Final Refund
> Order*, with respect to all markets listed for \[name of applicant\]
> in Attachment A to the *Final Refund Order*.

To file an Amendment to its pending application, an Eligible Auction 35
Winner must access ULS Online Filing through the Internet at
<http://wireless.fcc.gov/uls> and follow the steps outlined below:

1.  Select the Online Filing button from the ULS homepage.

2.  At the Online Filing login screen, enter the applicant's FCC
    Registration Number (FRN) and password and click **Continue**.
    Alternatively, the applicant may enter its TIN/SGIN and password and
    click **Continue**.

3.  Select New Filing and click **Continue**.

4.  Select Application Purpose "Amendment" and click **Continue**.

5.  Select the applicable File Number from the pull-down menu and click
    **Continue**.

6.  The application will appear. At the bottom of the page, provide the
    Signature and Title of a person authorized to sign the application
    and click **Continue**.

7.  Click on the Attachment button at the bottom of the screen to upload
    the Dismissal Request exhibit.

8.  An Attachment window will appear. Provide the following information:

    a.  Select Attachment Type "O -- Other."

    b.  Type the File Name of the attachment.

    c.  Type "Dismissal Request" for the File Description and click
        **Upload**.

    d.  After the attachment is uploaded successfully, click **Return**
        and then click **Close**.

9.  Click on the **Continue** button at the bottom of the page.

10. At this point, the applicant may Submit the application by clicking
    the **Submit** button.

11. A Confirmation page will appear indicating that the application was
    submitted successfully.

**For further information regarding the Dismissal Request contact:**
Amal Abdallah, Policy and Rules Branch, Commercial Wireless Division,
Wireless Telecommunications Bureau, 202-418-7307.

**For technical support contact:** ULS Technical Support Hotline, open
8: a.m. to 6:00 p.m., Monday through Friday, 202-414-1250.

**[Instructions for Filing a Request for a Refund of Remaining Auction
No. 35 Deposits]{.underline}**

Once the Bureau announces its acceptance of a Dismissal Request
following DOJ approval, the Commission will process refund requests from
Auction No. 35 payors of record. Refund requests may be submitted either
at the same time as or after the Eligible Auction 35 Winner has
requested dismissal of its corresponding application, but, in any case,
refund requests must be submitted within **45** days after release of
this Order.

In order to receive a refund, each payor of record must comply with the
following procedures:

-   For each payor of record, submit an Automated Clearing House
    Vendor/Miscellaneous Payment Enrollment Form ("ACH form") (see
    sample attached to this Appendix).[^94] Additional copies of this
    form may be accessed at <http://www.fms.treas.gov/pdf/3881.pdf>.
    Please leave blank the "Agency Information" section. Only complete
    the "Payee/Company" and "Financial Institution" sections of the
    form.

```{=html}
<!-- -->
```
-   Submit a letter (along with the ACH form) signed by the payor of
    record, requesting a refund and identifying the applicant and file
    number of the associated Pending Application. The Commission will
    calculate the amount of the applicable refund.

> The ACH form and the letter from the payor of record must be either
> faxed or mailed to the Commission. The fax number is: (202) 418-2843.
> The mailing address is: Federal Communications Commission, Office of
> the Managing Director, Attention: Auctions Accounting Group, Room
> 1-C863, 445 12^th^ St. SW Washington, D.C. 20554. Any questions
> concerning the completion of this form should be directed to Gail
> Glasser at (202) 418-0578 or Tim Dates at (202) 418-0496.

![](media/image1.jpeg){width="7.874409448818898in"
height="10.125196850393701in"}

![](media/image2.jpeg){width="7.055555555555555in"
height="9.129861111111111in"}

  ------------------------------------------------------------------------------------------------
  **Applicant Name**       **File       **Market**   **Channel   **Market Description**
                           Number**                  Block**     
  ------------------------ ------------ ------------ ----------- ---------------------------------
  3DL Wireless, LLC        0000365151   BTA047       C3          Bloomington-Bedford, IN

  3DL Wireless, LLC        0000365151   BTA135       C3          Evansville, IN

  3DL Wireless, LLC        0000365151   BTA318       C4          New Haven-Waterbury-Meriden, CT

  3G PCS, LLC              0000364147   BTA062       C3          Burlington, NC

  3G PCS, LLC              0000364147   BTA261       C3          Longview, WA

  Alaska Native Wireless,  0000363827   BTA036       C3          Bellingham, WA
  L.L.C.                                                         

  Alaska Native Wireless,  0000363827   BTA074       C3          Charlotte-Gastonia, NC
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA081       C4          Cincinnati, OH
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA084       C3          Cleveland-Akron, OH
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA095       C3          Columbus, OH
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA106       C5          Dayton-Springfield, OH
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA110       C4          Denver, CO
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA159       C4          Gainesville, FL
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA174       C3          Greensboro-Winston-Salem-High
  L.L.C.                                                         Point, NC

  Alaska Native Wireless,  0000364320   BTA212       C3          Jacksonville, FL
  L.L.C.                                                         

  Alaska Native Wireless,  0000363827   BTA220       C4          Joplin, MO-Miami, OK
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA239       C3          Lakeland-Winter Haven, FL
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA261       C4          Longview, WA
  L.L.C.                                                         

  Alaska Native Wireless,  0000363827   BTA262       C3          Los Angeles, CA
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA289       C4          Melbourne-Titusville, FL
  L.L.C.                                                         

  Alaska Native Wireless,  0000363827   BTA298       C3          Minneapolis-St. Paul, MN
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA318       C3          New Haven-Waterbury-Meriden, CT
  L.L.C.                                                         

  Alaska Native Wireless,  0000363827   BTA319       C4          New London-Norwich, CT
  L.L.C.                                                         

  Alaska Native Wireless,  0000363827   BTA321       C3          New York, NY
  L.L.C.                                                         

  Alaska Native Wireless,  0000363827   BTA331       C3          Olympia-Centralia, WA
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA336       C4          Orlando, FL
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA357       C3          Portland-Brunswick, ME
  L.L.C.                                                         

  Alaska Native Wireless,  0000363827   BTA358       C4          Portland, OR
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA368       C3          Raleigh-Durham, NC
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA408       C3          Sarasota-Bradenton, FL
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA408       C4          Sarasota-Bradenton, FL
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA440       C3          Tampa-St. Petersburg-Clearwater,
  L.L.C.                                                         FL

  Alaska Native Wireless,  0000363827   BTA448       F           Tulsa, OK
  L.L.C.                                                         

  Alaska Native Wireless,  0000364320   BTA480       C4          Worcester-Fitchburg-Leominster,
  L.L.C.                                                         MA

  Black Crow Wireless,     0000365273   BTA047       C4          Bloomington-Bedford, IN
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA159       C5          Gainesville, FL
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA212       C5          Jacksonville, FL
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA220       C3          Joplin, MO-Miami, OK
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA226       C4          Kansas City, MO
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA226       C5          Kansas City, MO
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA235       C4          Lafayette, IN
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA326       F           Ocala, FL
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA329       C3          Oklahoma City, OK
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA329       C4          Oklahoma City, OK
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA428       C4          Springfield, MO
  L.P.                                                           

  Black Crow Wireless,     0000365273   BTA428       C5          Springfield, MO
  L.P.                                                           

  Cellco Partnership d/b/a 0000364146   BTA007       C5          Albany-Schenectady, NY
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA010       C5          Allentown-Bethlehem-Easton, PA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA020       F           Asheville-Hendersonville, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA025       F           Atlantic City, NJ
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA027       C5          Austin, TX
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA036       C5          Bellingham, WA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA047       C5          Bloomington-Bedford, IN
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA051       C4          Boston, MA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA051       C5          Boston, MA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA056       C5          Brownsville-Harlingen, TX
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA059       C5          Bryan-College Station, TX
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA074       C5          Charlotte-Gastonia, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA078       F           Chicago, IL
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA084       C4          Cleveland-Akron, OH
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA093       C5          Columbus, IN
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA095       C5          Columbus, OH
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA107       F           Daytona Beach, FL
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA110       C5          Denver, CO
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA116       F           Dover, DE
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA128       C5          El Paso, TX
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA135       C5          Evansville, IN
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA141       C5          Fayetteville-Lumberton, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA147       F           Florence, SC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA156       F           Fredericksburg, VA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA165       C5          Goldsboro-Kinston, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA174       C5          Greensboro-Winston-Salem-High
  Verizon Wireless                                               Point, NC

  Cellco Partnership d/b/a 0000364146   BTA176       C5          Greenville-Washington, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA179       C5          Hagerstown, MD-Chambersburg,
  Verizon Wireless                                               PA-Martinsburg, WV

  Cellco Partnership d/b/a 0000364146   BTA181       F           Harrisburg, PA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA189       C5          Hickory-Lenoir-Morganton, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA196       C4          Houston, TX
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA204       C5          Indianapolis, IN
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA214       C5          Jacksonville, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA235       C5          Lafayette, IN
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA239       C5          Lakeland-Winter Haven, FL
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA240       F           Lancaster, PA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA244       C5          Las Cruces, NM
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA245       F           Las Vegas, NV
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA252       C5          Lexington, KY
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA261       C5          Longview, WA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA262       C4          Los Angeles, CA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA263       C5          Louisville, KY
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA268       C5          McAllen, TX
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA274       C5          Manchester-Nashua-Concord, NH
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA289       C5          Melbourne-Titusville, FL
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA298       C5          Minneapolis-St. Paul, MN
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA312       F           Myrtle Beach, SC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA316       C5          New Bern, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA318       C5          New Haven-Waterbury-Meriden, CT
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA319       C5          New London-Norwich, CT
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA321       C4          New York, NY
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA321       C5          New York, NY
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA329       C5          Oklahoma City, OK
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA331       C5          Olympia-Centralia, WA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA346       F           Philadelphia, PA-Wilmington,
  Verizon Wireless                                               DE-Trenton, NJ

  Cellco Partnership d/b/a 0000364146   BTA350       C4          Pittsburgh, PA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA357       C5          Portland-Brunswick, ME
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA358       C5          Portland, OR
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA361       C5          Poughkeepsie-Kingston, NY
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA364       C5          Providence-Pawtucket, RI-New
  Verizon Wireless                                               Bedford-Fall Riv., MA

  Cellco Partnership d/b/a 0000364146   BTA368       C5          Raleigh-Durham, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA370       F           Reading, PA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA376       C5          Roanoke, VA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA377       C5          Roanoke Rapids, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA382       C5          Rocky Mount-Wilson, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA389       F           Sacramento, CA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA394       F           St. Louis, MO
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA399       F           Salt Lake City-Ogden, UT
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA402       C5          San Diego, CA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA404       F           San Francisco-Oakland-San Jose,
  Verizon Wireless                                               CA

  Cellco Partnership d/b/a 0000364146   BTA408       C5          Sarasota-Bradenton, FL
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA412       C5          Scranton-Wilkes Barre-Hazleton,
  Verizon Wireless                                               PA

  Cellco Partnership d/b/a 0000364146   BTA413       C4          Seattle-Tacoma, WA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA413       C5          Seattle-Tacoma, WA
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA441       C5          Temple-Killeen, TX
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA452       F           Tyler, TX
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA461       C4          Washington, DC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA478       C5          Wilmington, NC
  Verizon Wireless                                               

  Cellco Partnership d/b/a 0000364146   BTA480       C5          Worcester-Fitchburg-Leominster,
  Verizon Wireless                                               MA

  Cellco Partnership d/b/a 0000364146   BTA483       F           York-Hanover, PA
  Verizon Wireless                                               

  Cook Inlet/VS GSM V PCS, 0000365280   BTA020       C4          Asheville-Hendersonville, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA027       C4          Austin, TX
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA029       C3          Baltimore, MD
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA036       C4          Bellingham, WA
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA062       C4          Burlington, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA074       C4          Charlotte-Gastonia, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA141       C4          Fayetteville-Lumberton, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA174       C4          Greensboro-Winston-Salem-High
  LLC                                                            Point, NC

  Cook Inlet/VS GSM V PCS, 0000365280   BTA176       C4          Greenville-Washington, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA189       C4          Hickory-Lenoir-Morganton, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA204       C3          Indianapolis, IN
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA214       C4          Jacksonville, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA316       C4          New Bern, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA331       C4          Olympia-Centralia, WA
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA368       C4          Raleigh-Durham, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA377       C4          Roanoke Rapids, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA382       C4          Rocky Mount-Wilson, NC
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA402       C4          San Diego, CA
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA413       C3          Seattle-Tacoma, WA
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA441       C3          Temple-Killeen, TX
  LLC                                                            

  Cook Inlet/VS GSM V PCS, 0000365280   BTA478       C4          Wilmington, NC
  LLC                                                            

  DCC PCS, Inc.            0000365171   BTA010       C3          Allentown-Bethlehem-Easton, PA

  DCC PCS, Inc.            0000365171   BTA029       C4          Baltimore, MD

  DCC PCS, Inc.            0000365171   BTA056       C3          Brownsville-Harlingen, TX

  DCC PCS, Inc.            0000365171   BTA059       C4          Bryan-College Station, TX

  DCC PCS, Inc.            0000365171   BTA226       C3          Kansas City, MO

  DCC PCS, Inc.            0000365171   BTA268       C3          McAllen, TX

  DCC PCS, Inc.            0000365171   BTA350       C3          Pittsburgh, PA

  DCC PCS, Inc.            0000365171   BTA401       C3          San Antonio, TX

  DCC PCS, Inc.            0000365171   BTA402       C3          San Diego, CA

  DCC PCS, Inc.            0000365171   BTA441       C4          Temple-Killeen, TX

  DCC PCS, Inc.            0000365171   BTA461       C3          Washington, DC

  Lafayette Communications 0000365449   BTA020       C3          Asheville-Hendersonville, NC
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA141       C3          Fayetteville-Lumberton, NC
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA165       C4          Goldsboro-Kinston, NC
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA176       C3          Greenville-Washington, NC
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA189       C3          Hickory-Lenoir-Morganton, NC
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA214       C3          Jacksonville, NC
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA316       C3          New Bern, NC
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA324       C5          Norfolk-Virginia Beach-Newport
  Company L.L.C.                                                 News-Hampton, VA

  Lafayette Communications 0000365449   BTA374       C3          Richmond-Petersburg, VA
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA376       C3          Roanoke, VA
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA377       C3          Roanoke Rapids, NC
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA382       C3          Rocky Mount-Wilson, NC
  Company L.L.C.                                                 

  Lafayette Communications 0000365449   BTA478       C3          Wilmington, NC
  Company L.L.C.                                                 

  LastWave Partners, LP    0000362139   BTA361       C4          Poughkeepsie-Kingston, NY

  Leap Wireless            0000365276   BTA007       C3          Albany-Schenectady, NY
  International, Inc.                                            

  Leap Wireless            0000365276   BTA020       C5          Asheville-Hendersonville, NC
  International, Inc.                                            

  Leap Wireless            0000365276   BTA027       C3          Austin, TX
  International, Inc.                                            

  Leap Wireless            0000365276   BTA056       C4          Brownsville-Harlingen, TX
  International, Inc.                                            

  Leap Wireless            0000365276   BTA059       C3          Bryan-College Station, TX
  International, Inc.                                            

  Leap Wireless            0000365276   BTA093       C4          Columbus, IN
  International, Inc.                                            

  Leap Wireless            0000365276   BTA095       C4          Columbus, OH
  International, Inc.                                            

  Leap Wireless            0000365276   BTA128       C3          El Paso, TX
  International, Inc.                                            

  Leap Wireless            0000365276   BTA196       C5          Houston, TX
  International, Inc.                                            

  Leap Wireless            0000365276   BTA204       C4          Indianapolis, IN
  International, Inc.                                            

  Leap Wireless            0000365276   BTA212       C4          Jacksonville, FL
  International, Inc.                                            

  Leap Wireless            0000365276   BTA244       C3          Las Cruces, NM
  International, Inc.                                            

  Leap Wireless            0000365276   BTA252       C4          Lexington, KY
  International, Inc.                                            

  Leap Wireless            0000365276   BTA263       C4          Louisville, KY
  International, Inc.                                            

  Leap Wireless            0000365276   BTA268       C4          McAllen, TX
  International, Inc.                                            

  Leap Wireless            0000365276   BTA289       C3          Melbourne-Titusville, FL
  International, Inc.                                            

  Leap Wireless            0000365276   BTA319       C3          New London-Norwich, CT
  International, Inc.                                            

  Leap Wireless            0000365276   BTA361       C3          Poughkeepsie-Kingston, NY
  International, Inc.                                            

  Leap Wireless            0000365276   BTA364       C3          Providence-Pawtucket, RI-New
  International, Inc.                                            Bedford-Fall Riv., MA

  Leap Wireless            0000365276   BTA401       C4          San Antonio, TX
  International, Inc.                                            

  Leap Wireless            0000365276   BTA412       C4          Scranton-Wilkes Barre-Hazleton,
  International, Inc.                                            PA

  Leap Wireless            0000365276   BTA480       C3          Worcester-Fitchburg-Leominster,
  International, Inc.                                            MA

  MCBRIDE, VINCENT D       0000360598   BTA135       C4          Evansville, IN

  MCG PCS II, Inc.         0000365038   BTA010       C4          Allentown-Bethlehem-Easton, PA

  MCG PCS II, Inc.         0000365038   BTA179       C3          Hagerstown, MD-Chambersburg,
                                                                 PA-Martinsburg, WV

  Mint GSM Services Inc.   0000365182   BTA062       C5          Burlington, NC

  Mint GSM Services Inc.   0000365182   BTA165       C3          Goldsboro-Kinston, NC

  NORTHCOAST               0000365464   BTA007       C4          Albany-Schenectady, NY
  COMMUNICATIONS, L.L.C.                                         

  NORTHCOAST               0000365464   BTA081       C5          Cincinnati, OH
  COMMUNICATIONS, L.L.C.                                         

  NORTHCOAST               0000365464   BTA106       C4          Dayton-Springfield, OH
  COMMUNICATIONS, L.L.C.                                         

  NORTHCOAST               0000365464   BTA274       C4          Manchester-Nashua-Concord, NH
  COMMUNICATIONS, L.L.C.                                         

  Poplar PCS-Central, LLC  0000364979   BTA220       C5          Joplin, MO-Miami, OK

  Reiter, Scott D          0000359119   BTA093       C3          Columbus, IN

  Salmon PCS LLC           0000365189   BTA024       F           Atlanta, GA

  Salmon PCS LLC           0000365189   BTA029       C5          Baltimore, MD

  Salmon PCS LLC           0000365189   BTA051       C3          Boston, MA

  Salmon PCS LLC           0000365189   BTA075       F           Charlottesville, VA

  Salmon PCS LLC           0000365189   BTA101       F           Dallas-Fort Worth, TX

  Salmon PCS LLC           0000365189   BTA110       C3          Denver, CO

  Salmon PCS LLC           0000365189   BTA128       C4          El Paso, TX

  Salmon PCS LLC           0000365189   BTA179       C4          Hagerstown, MD-Chambersburg,
                                                                 PA-Martinsburg, WV

  Salmon PCS LLC           0000365189   BTA183       F           Harrisonburg, VA

  Salmon PCS LLC           0000365189   BTA196       C3          Houston, TX

  Salmon PCS LLC           0000365189   BTA225       F           Kankakee, IL

  Salmon PCS LLC           0000365189   BTA239       C4          Lakeland-Winter Haven, FL

  Salmon PCS LLC           0000365189   BTA244       C4          Las Cruces, NM

  Salmon PCS LLC           0000365189   BTA262       C5          Los Angeles, CA

  Salmon PCS LLC           0000365189   BTA263       C3          Louisville, KY

  Salmon PCS LLC           0000365189   BTA274       C3          Manchester-Nashua-Concord, NH

  Salmon PCS LLC           0000365189   BTA284       F           Martinsville, VA

  Salmon PCS LLC           0000365189   BTA298       C4          Minneapolis-St. Paul, MN

  Salmon PCS LLC           0000365189   BTA324       C4          Norfolk-Virginia Beach-Newport
                                                                 News-Hampton, VA

  Salmon PCS LLC           0000365189   BTA336       C5          Orlando, FL

  Salmon PCS LLC           0000365189   BTA350       C5          Pittsburgh, PA

  Salmon PCS LLC           0000365189   BTA357       C4          Portland-Brunswick, ME

  Salmon PCS LLC           0000365189   BTA358       C3          Portland, OR

  Salmon PCS LLC           0000365189   BTA364       C4          Providence-Pawtucket, RI-New
                                                                 Bedford-Fall Riv., MA

  Salmon PCS LLC           0000365189   BTA365       F           Provo-Orem, UT

  Salmon PCS LLC           0000365189   BTA374       C4          Richmond-Petersburg, VA

  Salmon PCS LLC           0000365189   BTA374       C5          Richmond-Petersburg, VA

  Salmon PCS LLC           0000365189   BTA376       C4          Roanoke, VA

  Salmon PCS LLC           0000365189   BTA398       F           Salisbury, MD

  Salmon PCS LLC           0000365189   BTA412       C3          Scranton-Wilkes Barre-Hazleton,
                                                                 PA

  Salmon PCS LLC           0000365189   BTA428       C3          Springfield, MO

  Salmon PCS LLC           0000365189   BTA430       F           Staunton-Waynesboro, VA

  Salmon PCS LLC           0000365189   BTA440       C5          Tampa-St. Petersburg-Clearwater,
                                                                 FL

  Salmon PCS LLC           0000365189   BTA461       C5          Washington, DC

  SLO Cellular, Inc.       0000363734   BTA235       C3          Lafayette, IN

  SVC BidCo, L.P.          0000364238   BTA081       C3          Cincinnati, OH

  SVC BidCo, L.P.          0000364238   BTA106       C3          Dayton-Springfield, OH

  SVC BidCo, L.P.          0000364238   BTA324       C3          Norfolk-Virginia Beach-Newport
                                                                 News-Hampton, VA

  SVC BidCo, L.P.          0000364238   BTA336       C3          Orlando, FL

  SVC BidCo, L.P.          0000364238   BTA440       C4          Tampa-St. Petersburg-Clearwater,
                                                                 FL

  Theta Communications,    0000365210   BTA159       C3          Gainesville, FL
  LLC                                                            

  Unbound PCS, LLC         0000361223   BTA252       C3          Lexington, KY

  VoiceStream PCS BTA I    0000365311   BTA072       F           Charleston, SC
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA084       C5          Cleveland-Akron, OH
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA091       F           Columbia, SC
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA099       F           Corpus Christi, TX
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA177       F           Greenville-Spartanburg, SC
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA216       F           Janesville-Beloit, WI
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA297       F           Milwaukee, WI
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA335       F           Orangeburg, SC
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA374       F           Richmond-Petersburg, VA
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA376       F           Roanoke, VA
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA401       C5          San Antonio, TX
  License Corporation                                            

  VoiceStream PCS BTA I    0000365311   BTA436       F           Sumter, SC
  License Corporation                                            
  ------------------------------------------------------------------------------------------------

**STATEMENT OF CHAIRMAN MICHAEL K. POWELL**

Re*: Disposition of Down Payments and Pending Applications By Certain
Winning Bidders in Auction No. 35*

The Auction 35 road endured by all the parties and the public has been
long and difficult. While bidders were forewarned of the risks attending
the Auction, and the Commission has pursued settlement and afforded
bidders partial, interim relief, barriers to licensing remain. As the
months have passed and the economic difficulties worsened, it has become
increasingly clear that allowing the eligible Auction 35 winners to exit
the auction is the right course. I recently outlined six components of a
successful telecommunications recovery. Reduction of debt was among its
highest priorities. Although the Commission cannot cure the capital
crunch, it can remove the cloud of uncertainty that has followed the
Auction 35 winners. Approximately three weeks ago, the record in this
docket closed and today we take that step. The staff has done an
extraordinary job to bring this issue so quickly to closure; their sense
of urgency was commensurate with the important public policy and
economic issues at stake.

**SEPARATE STATEMENT OF COMMISSIONER KATHLEEN Q. ABERNATHY**

Re*: Disposition of Down Payments and Pending Applications By Certain
Winning Bidders in Auction No. 35; Requests for Refunds of Down Payments
Made in Auction No. 35, WT Docket No. 02-276*

I enthusiastically support today's Order. I have long believed that the
delays occasioned by extensive litigation, when combined with
significant changes in the marketplace over the last several years, lead
us to today's result. In light of the ongoing uncertainty regarding our
ability to award these licenses and current economic conditions, I do
not believe the public interest is served by tying up deposits and,
perhaps worse, subjecting carriers to the risk of having to produce
billions of dollars on short notice if the Commission prevails in the
U.S. Supreme Court. These factors have produced a financial overhang
that makes it difficult for carriers to make much-needed infrastructure
investments and service upgrades. Today's action by the Commission
should provide relief from these constraints. It will allow carriers to
use deposit money more productively and enhance their ability to attract
additional capital, thus ultimately benefiting consumers.

**SEPARATE STATEMENT OF COMMISSIONER KEVIN J. MARTIN**

*Re: 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, WT Docket No. 02-276*

Today the Commission finally takes action to relieve the winning bidders
in Auction No. 35 of their obligations. The history of this Auction and
the commensurate litigation has been long and tortured.

This spring the Commission refunded a substantial portion of the monies
on deposit to the winning bidders, but left their obligations in place.
In light of the on-going economic burden of these obligations and the
continuing litigation, the Commission should not keep these obligations
in place any longer.

Indeed, I have long thought that the Commission could and should provide
an additional stimulus to the industry and the economy as a whole by
relaxing these obligations.

I dissent in part, however, to the decision's requirement that carriers
withdraw from the entire auction to be relieved of any of their
obligations. I do not see a need to require carriers to make a single
election for all of the markets awarded at auction as a condition to
withdrawing from any one market.

My hope is that today's decision provides Eligible Auction 35 winners
with finality and the certainty necessary to "lay the foundation for
renewed investment, innovation, and job producing growth, both in the
telecommunications industry and in the economy as a whole."[^95]

[^1]: "Commission Seeks Comment On Disposition Of Down Payments And
    Pending Applications For Licenses Won During Auction No. 35 For
    Spectrum Formerly Licensed To NextWave Personal Communications Inc.,
    NextWave Power Partners, Inc. And Urban Comm \-- North Carolina,
    Inc.," *Public Notice*, FCC 02-248 (rel. Sept. 12, 2002); *Erratum*
    (rel. Sept. 12, 2002) ("*Public Notice*"). A list of the parties
    that filed comments, reply comments, and *ex parte* notices in this
    proceeding, and the abbreviations used to refer to such parties, is
    attached at Appendix A.

[^2]: An "Eligible Auction 35 Winner" is a winning bidder in Auction No.
    35 with a pending application(s) for license(s) of spectrum that was
    previously licensed to NextWave Personal Communications Inc.,
    NextWave Power Partners Inc. (collectively "NextWave") and Urban
    Comm-North Carolina, Inc. ("Urban Comm"), and is now subject to the
    NextWave litigation and Urban Comm proceedings ("NextWave/Urban Comm
    Spectrum").

[^3]: We note that, under the Commission's rules, applicants for
    licenses won at an auction may file a single application for
    numerous licenses. Accordingly, as used in this Order, "Pending
    Application(s)" refers to long-form application(s) on file with
    respect to licenses won at auction by Eligible Auction 35 Winners
    for NextWave/Urban Comm Spectrum.

[^4]: C and F Block Broadband PCS Auction Closes; Winning Bidders
    Announced; Down Payments Due February 12, 2001, FCC Forms 601 and
    602 Due February 12, 2001; Ten-Day Petition to Deny Period," *Public
    Notice*, DA 01-211 (WTB Jan. 29, 2001).

[^5]: NextWave held licenses for spectrum associated with 216 of the
    licenses sold in Auction No. 35, and Urban Comm held licenses for
    spectrum associated with 43 of the licenses sold in Auction No. 35.
    The Commission granted 155 licenses for non- NextWave/Urban Comm
    Spectrum, and over \$500 million in payments were received.

[^6]: 47 C.F.R. § 1.2110(e)(4)(iii) (1997).

[^7]: 47 C.F.R. § 1.2107.

[^8]: 11 U.S.C. § 525(a).

[^9]: *NextWave Personal Communications Inc. v. FCC*, 254 F.3d 130 (D.C.
    Cir. 2001), *cert. granted*, \_\_U.S.\_\_, 70 U.S.L.W. 3317, 70
    U.S.L.W. 3545, 70 U.S.L.W. 3551 (U.S. March 4, 2002) (Nos. 01-653,
    01-657) ("*NextWave v. FCC*"); 11 U.S.C. § 525. *But see NextWave
    Personal Communications, Inc. and NextWave Power Partners, Inc. v.
    FCC*, Nos. 00-1402 and 00-1403 (D.C. Cir. Nov. 13, 2000) (denial of
    NextWave's motion for stay of Auction No. 35).

[^10]: *NextWave Personal Communications Inc. v. FCC*, 254 F.3d 130
    (D.C. Cir. 2001), *cert. granted*, \_\_U.S.\_\_, 70 U.S.L.W. 3317,
    70 U.S.L.W. 3545, 70 U.S.L.W. 3551 (U.S. March 4, 2002) (Nos.
    01-653, 01-657).

[^11]: "Wireless Telecommunications Bureau Announces the Return to
    Active Status of Licenses to NextWave Personal Communications Inc.
    and NextWave Power Partners Inc., Subject to the Outcome of Ongoing
    Litigation," *Public Notice*, DA 01-2045, 16 FCC Rcd 15970 (WTB Aug.
    31, 2001).

[^12]: *FCC v. NextWave Personal Communications, Inc.,* No. 01-653,
    *petition for writ of certiorari filed* (U.S. October 19, 2001).
    *See also* *Arctic Slope Regional Corporation, et al., v. NextWave
    Personal Communications, Inc*., No. 01-657, *petition for writ of
    certiorari filed* (U.S. October 19, 2001).

[^13]: Settlement Agreement By and Among the United States of America,
    the Federal Communications Commission, NextWave Telecom Inc. and
    Certain Affiliates, and Participating Auction 35 Winning Bidders
    (Nov. 15, 2001) ("NextWave Settlement Agreement"). *See also*
    "Statement of FCC Chairman Michael Powell on Signing of NextWave
    Settlement Agreement," *News Release* (rel. Nov. 27, 2001).

[^14]: *NextWave Personal Communications Inc. v. FCC*, 254 F.3d 130
    (D.C. Cir. 2001), *cert. granted*, \_\_U.S.\_\_, 70 U.S.L.W. 3317,
    70 U.S.L.W. 3545, 70 U.S.L.W. 3551 (U.S. March 4, 2002) (Nos.
    01-653, 01-657).

[^15]: *See, e.g.,* *NextWave v. FCC*; *In re Urban Comm-North Carolina,
    Inc.,* Case No. 98-B-10086 (REG), Adv. Proc. No. 99/8125A;
    Applications for Review, dated March 17, 1997 and June 16, 1997,
    filed by Antigone Communications, L.P. and PCS Devco, Inc.; Petition
    to Initiate an Investigation and Audit Regarding the Eligibility of
    NextWave Personal Communications, Inc. and NextWave Power Partners
    Inc. to Hold C and F Block licenses, filed by Alaska Native
    Wireless, L.L.C., Verizon Wireless, and VoiceStream Wireless
    Corporation, dated July 19, 2001; and Petition for Reconsideration,
    filed by Alaska Native Wireless, L.L.C. and VoiceStream Wireless
    Corporation, dated October 12, 2001; Petition to Deny Reinstatement
    of Licenses, filed by Alaska Native Wireless, L.L.C., and
    VoiceStream Wireless Corporation, dated August 30, 2001.

[^16]: *NextWave Personal Communications, Inc. v. FCC,* No. 01-1402,
    *Petition to Enforce the Mandate* (filed February 5, 2002).

[^17]: *Id.*

[^18]: *Id*.

[^19]: *NextWave Personal Communications, Inc. v. FCC,* No. 01-1402
    (D.C. Cir. March 1, 2002).

[^20]: *See* *Joint Request for Immediate Refund of Auction No. 35 Down
    Payments for NextWave Licenses* filed on January 4, 2002 by 3DL
    Wireless, LLC, 3G PCS, LLC, Alaska Native Wireless, L.L.C., Cellco
    Partnership d/b/a Verizon Wireless ("Verizon Wireless"), Cook
    Inlet/VS GSM V PCS, LLC, DCC PCS, Inc., Lafayette Communications
    Company, L.L.C., Leap Wireless International, Inc., MCG PCS II,
    Inc., Northcoast Communications, L.L.C., Salmon PCS LLC, SVC BidCo,
    L.P., and VoiceStream PCS BTA I License Corporation ("Joint
    Request"). The Commission also responded to an additional nine
    winning bidders requesting relief but not parties to the Joint
    Request: Black Crow Wireless, L.P., Mint GSM, Poplar PCS-Central,
    Scott Reiter, SLO Cellular, Theta Communications, Unbound PCS, LLC,
    Vincent McBride, and Last Wave Partners, LP. LastWave Partners, LP,
    Black Crow Wireless, L.P. and Unbound PCS, LLC each filed separate
    requests for refunds of down payments made in Auction No. 35 for
    spectrum that was previously licensed to NextWave. *Request For
    Immediate Refund of Auction No. 35 Down Payment for NextWave
    License* filed by LastWave Partners, LP on January 7, 2002; *Request
    for Refund of Downpayments* filed by Black Crow Wireless, L.P. on
    January 25, 2002; *Request for Refund of Downpayments* filed by
    Unbound PCS, LLC on February 6, 2002. In addition, Vincent McBride
    and Scott Reiter have filed similar requests for refunds. *See*
    letters from Vincent McBride and Scott Reiter to Michael K. Powell,
    Chairman, Federal Communications Commissions dated July 9, 2001,
    July 16, 2001, August 25, 2001 and October 22, 2001; *see also*
    letter from Donald J. Evans, counsel for Vincent McBride and Scott
    Reiter, to Kathleen O'Brien Ham, Deputy Chief, Wireless
    Telecommunications Bureau, dated October 31, 2001.

[^21]: Requests for Refunds of Down Payments Made In Auction No. 35,
    *Order*, 17 FCC Rcd 6283 (2002) ("*Partial Refund Order*"), *appeal
    pending, Cellco Partnership d/b/a Verizon Wireless v. FCC* (D.C.
    Cir. Apr. 8, 2002) (Nos. 02-1110 & 02-1111).

[^22]: *See* 47 C.F.R. § 1.2104(g). In the event of a default, the
    Commission retains funds on deposit equal to three percent of the
    total winning bid amount, and has the discretion to retain an amount
    of up to twenty percent of the winning bid amount. 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, WT Docket No. 97-82, ET Docket No.
    94-32, *Third Report and Order and Second Further Notice of Proposed
    Rule Making*, 13 FCC Rcd 374, 433, ¶ 102 (1998).

[^23]: Letter to John Rogovin, Deputy General Counsel, Federal
    Communications Commission, from S. Mark Tuller, Vice President-Legal
    and External Affairs, General Counsel and Secretary, Verizon
    Wireless, dated March 5, 2002.

[^24]: *Partial Refund Order*, 17 FCC Rcd at 6290-92 ¶ 12-16.

[^25]: *Id.* at 6284 n.5 and accompanying text.

[^26]: Petition for Reconsideration of Eldorado Communications, LLC.
    (filed April 26, 2002) ("Eldorado Petition").

[^27]: *See* *supra* note 1.

[^28]: *See* Appendix A (list of commenters).

[^29]: *Public Notice* at 3.

[^30]: *Id.* at 4-5.

[^31]: *Id.*

[^32]: *See id.*

[^33]: *Id.* at 4-5 and n. 11.

[^34]: *Id.* at 4-5 and n. 12 (citing *See* 4 C.F.R. Parts 101-105;
    *Amendment of the Commission's Rules Regarding Installment Payment
    Financing for Personal Communications Services (PCS) Licensees*,
    Second Report and Order, 12 FCC Rcd 16436, 16462-64 ¶¶ 53-58 (1997)
    ("*C Block Restructuring Order*"); "U.S. Department of Justice
    Approves Debt Forgiveness for Personal Communications Services (PCS)
    C Block," *Public Notice*, DA 98-1051 (June 3, 1998)).

[^35]: *Public Notice* at 4-5.

[^36]: *Id.* at 4.

[^37]: *Id.* at 4-5.

[^38]: *See Partial Refund Order*, 17 FCC Rcd at 6291-92 ¶¶ 14-16. We
    note that the Bureau explicitly advised potential bidders in Auction
    No. 35 of their due diligence obligations, cautioning that:

    > certain judicial proceedings that may relate to the licenses
    > available in Auction No. 35 are pending or may be subject to
    > further review. Resolution of these matters could have an effect
    > on the availability of spectrum included in Auction No. 35 and the
    > auction is subject to such matters. Some of these matters (whether
    > before the Commission or the courts) may not be resolved by the
    > time of the auction. The Commission will continue to act on
    > matters before it, but it makes no representations as to the
    > resolution of judicial proceedings. Potential bidders are solely
    > responsible for identifying associated risks, and investigating
    > and evaluating the degree to which such matters may affect their
    > ability to bid on or otherwise acquire licenses in Auction No. 35.

    "C and F Block Broadband PCS Spectrum Auction Scheduled for December
    12, 2000; Notice and Filing Requirements for 422 Licenses in the C
    and F Block Broadband PCS Spectrum Auction; Minimum Opening Bids,
    Upfront Payments and Other Procedural Issues for Final Auction
    Inventory," *Public Notice*, DA 00-2259 15 FCC Rcd 19485, 19493 (WTB
    Oct. 5, 2000) (emphasis omitted). Similar language was included in
    two other pre-auction public notices. *See* "C and F Block Broadband
    PCS Spectrum Auction Scheduled for November 29, 2000, Rescheduled
    for December 12, 2000; Revised List of Available Licensees; Comment
    Sought on Reserve Prices or Minimum Opening Bids and Other
    Procedural Issues," *Public Notice*, DA 00-2038, 15 FCC Rcd 17251
    (WTB Sept. 6, 2000); "Auction of Licenses for C and F Block
    Broadband PCS Spectrum; Status of FCC Form 175 Applications to
    Participate in the Auction," *Public Notice*, 15 FCC Rcd 22466 (WTB
    Nov. 17, 2000).

[^39]: *See* 47 U.S.C. § 309(j). No inference should be drawn from our
    conclusions in this Order with regard to any pending litigation or
    other claims by third parties with regard to this spectrum.

[^40]: *See* J. Gregory Sidak, "The Economic Benefits of Permitting
    Winning Bidders to Opt Out of Auction 35" at at 11-12 (dated Aug.
    21, 2002) (Criterion Economics: Washington, DC), submitted as
    Attachment B to Verizon Comments ("Sidak Study"); BIA Financial
    Network, "The State of the Telecommunications Industry from March
    31^st^, 2002 With Emphasis on the Wireless Voice Industry" at 21
    (BIA Financial Network, dated Oct. 11, 2002), submitted as Exhibit 1
    to Salmon Comments ("BIAfn Study").

[^41]: *See, e.g.,* Sidak Study at 8-11; BIAfn Study at 4.

[^42]: The Commission is actively involved in monitoring the financial
    health of the telecommunications sector and considering how it
    should best take these factors into account in the regulatory
    actions and decisions it takes. Among other things, the Commission
    recently convened an *en banc* hearing that brought together a
    variety of experts from the financial community and academia to
    comprehensively assess the current state of the telecommunications
    sector and to discuss steps needed to restore its financial health.
    *See* "FCC To Convene *En Banc* Hearing October 7^th^ On Steps
    Toward Recovery in the Telecommunications Industry," *Public
    Notice*, DA 02-2443 (Sept. 30, 2002).

[^43]: *See generally* Letter from Secretary of Commerce Donald L. Evans
    to Chairman Michael K. Powell (Oct. 10, 2002); T-Mobile Comments, at
    6-7; Cingular Comments at 5; Cook Inlet Comments at 2-4; CTIA
    Comments at 6-8. *See also, e.g*., Morgan Stanley Research Report:
    American Tower Company, at 2 (Morgan Stanley Equity Research: New
    York, NY; Aug. 9, 2002) (stating that tower operators "still face
    near term risks from carrier \[capital expenditure\] pullbacks,
    potential carrier bankruptcies and consolidation); Investment Cuts
    at Telecoms Create Cellphone Deadzones," *The Wall Street Journal
    Online,*
    <http://online.wsj.com/article_print/0,,SB1039965809764336535,00.html>
    (dated Sept. 3, 2002) \<viewed Sept. 17, 2002\> ("The top six
    \[wireless\] carriers are slashing capital expenses by more than \$3
    billion, or about 12%, this year... One result: between 70% and 90%
    fewer towers are being built now compared with just a couple of
    years ago -- even though demand for phone service continues to grow
    rapidly.").

[^44]: *See* Alaska Native Wireless Comments at 4-6; Cingular Comments
    at 5-7; CTIA Comments at 2-3; Greater Boston Chamber of Commerce
    Comments at 1; Leap Comments at 3; Progress & Freedom Comments at 4;
    Salmon Comments at 1-11; Verizon Wireless Comments at 4-8.

[^45]: *See, e.g.,* T-Mobile Comments at 4; PCS Partners Comments at 2;
    Crown Castle Reply at 3-4; Mesa letter, at 1.

[^46]: Letter from Rep. Cliff Stearns *et al.* to Chairman Powell, at 1
    (Oct. 4, 2002).

[^47]: *See, e .g.,* Sidak Study at 5, 22-24, 34-35 (describing
    "multiplicative effect" on economy of capital spending by wireless
    companies, and contending that relief for Eligible Auction 35
    Winners "would produce an economic stimulus of up to \$51.5
    billion."). *See also* BIAfn Study, at 8 (concurring with
    conclusions of Sidak Study, and providing independent analysis of
    state of wireless industry).

[^48]: In a recent report, CTIA reported that the number of employees in
    the wireless industry declined in the first half of 2002, which is
    the first ever decline in the number of wireless industry workers.
    *See* CTIA's Semi-Annual Wireless Industry Survey; Mid-year 2002
    (CTIA: Washington, DC; rel. Oct. 30, 2002) (data from 1985 to
    mid-year 2002). *See also, e.g.,* "Without A Net: In Bankruptcy,
    Getting Laid Off Hurts Even Worse," *The Wall Street Journal*, at A1
    (Sept. 30, 2002) (stating the that telecommunications sector has
    accounted for six of the 10 largest bankruptcies so far this year);
    "Wireless Leads Telecom Industry Cuts," *Orange County \[Calif.\]
    Business Journal,* vol. 25, no. 35 at 3 (Sept. 2, 2002) (reporting
    that workforce cuts among four to wireless companies "accounted for
    70% of layoffs" among top 20 telecommunications firms);
    "Technology's Troubles Lingering," *Atlanta Business Chronicle,* at
    A3 (Oct. 11, 2002) (describing thousands of job losses for telecom
    workers in the State of Georgia during the past year); "U.S.
    Wireless Sector Trying to Reconnect With Success," *The Philadelphia
    Inquirer,* at D1 (Sept. 24, 2002) (describing Nortel's plans to cut
    7,000 of its 42,000 jobs, and Cingular Wireless's plans to "slash
    2,500 to 3,000 jobs"); "Telecommunications Analysts Expect
    Consolidations Within Industry," *Knight Ridder Tribune Business
    News* (July 29, 2002) ("More than 243,000 telecommunications jobs
    have been cut in the first six months of this year...").

[^49]: *See, e.g.,* "'The Insolvency Zone:' the Bankrupting of the U.S.
    Telecom Sector," Scott Cleland, Precursor Group (May 20, 2002).

[^50]: *See Public Notice* at 1, n.2. We note that these applications
    seek licenses for spectrum that is the subject of extensive related
    litigation and pending regulatory proceedings.

[^51]: *But see, supra,* note 38 (noting that bidders accepted
    litigation and other risks when participating in Auction No. 35).

[^52]: In this regard, the current situation differs significantly from
    the context underlying earlier requests by winning bidders in
    Auction Nos. 5 and 10 because the Commission had issued licenses to
    those firms. *See C and F Block Restructuring Order*, 12 FCC Rcd
    16436. Here, by contrast, not only are telecommunications companies
    faced with difficult economic circumstances, but we are also
    prevented by judicial mandate from issuing the licenses they seek.

[^53]: One commenter unequivocally opposes any relief for the Auction
    No. 35 winners. *See* Friedman Comments at 1 (arguing that Auction
    No. 35 winners assumed the risks posed by pending litigation, and
    that the proposed relief would undercut the integrity of the
    Commission's spectrum auction program and deny the public the
    monetary benefits of the Auction No. 35 winners\' bids). In
    addition, certain PCS licensees that acquired their licenses in
    Auction No. 5 urge not to grant relief to Auction No. 35 winners
    without extending similar relief to winning bidders in Auction No.
    5. *See* Alpine Comments at 1-3; Eldorado Comments at 2; Eldorado
    Reply at 3-4; Mountain Solutions Reply at 1-5; McBride Reply at 1-5.
    We dispose of those arguments below. *See infra,* paragraph 19.

[^54]: The Progress & Freedom Foundation observes that more than 500,000
    telecommunications workers have lost jobs since the start of 2001,
    which is a far greater job loss than in any other sector of the
    economy. Progress & Freedom Comments at 3. Nearly all other
    commenters agree that the telecommunications sector is suffering in
    the current economic environment. *See, e.g.,* 3DL Comments at 2-3;
    Alaska Native Wireless Comments at 5-7; Alpine Comments at 2; Black
    Crow Comments at 2-3; Cingular Comments at 5-8; Cook Inlet Comments
    at 3-4; CTIA Comments at 1-3, 9; DCC Comments at 2; Greater Boston
    Chamber Comments at 1; Lafayette Comments at 2-3; Nextel Comments at
    8-9; PCS Partners Comments at 2-3; Salmon Comments at 9-13, 26, 28;
    T-Mobile Comments at 3-7; Triton Comments at 1, 3-4; Verizon
    Comments at 6-8; Crown Castle Reply at 2-4.

[^55]: *See, e.g,* Salmon Comments at 7-8 (describing how firms, such as
    Salmon, have implemented service alternatives in the absence of a
    resolution of the *NextWave* litigation and licensing matters).

[^56]: *See, e.g.,* Sidak study, at 3-4, 22-24; BIA fn Study at 7, 34;
    Cingular Comments at 7; T-Mobile Comments at 10; Verizon Comments at
    7-8; Cook Inlet Comments at 3-4; Chamber Comments at 1; Qualcomm
    Comments at 1-2; Salmon Comments at 26, 28; Crown Castle Reply at
    2-4; T-Mobile Reply at 6-7, 9; Verizon Wireless Reply at 3; Mesa
    letter at 2.

[^57]: *See* 47 U.S.C. § 309(j)(3)(A) & (B).

[^58]: *See* Verizon Wireless Comments at 12-13, n.41; Verizon Wireless
    Reply at 8.

[^59]: *See* Cook Inlet Comments at 6-7 (promoting a single election
    approach and observing that dismissal of applications under these
    circumstances "will bolster the credibility of \[the Commission's\]
    auctions" and demonstrate a commitment to fairness in the auction
    process).

[^60]: *See, e.g.,* Cook Inlet Reply at 10; T-Mobile Reply at 3.

[^61]: *See* *C Block Restructuring Order*, 12 FCC Rcd at 16455, 16463,
    16469 ¶¶ 38, 56, 67; *Amendment of the Commission's Rules Regarding
    Installment Payment Financing for Personal Communications Services
    (PCS) Licensees*, Order on Reconsideration of the Second Report and
    Order, 13 FCC Rcd 8345, 8351-52 ¶ 18 (1998) ("*C Block Restructuring
    Recon*").

[^62]: *See* 3DL Comments at 5; Cook Inlet Comments at 10; Progress &
    Freedom Comments at 5; Qualcomm Comments at 2; Triton Comments at 5;
    Verizon Wireless Comments at 28 (Regardless of approach used, the
    Commission "should act quickly to maximize the beneficial effect on
    the wireless industry and the domestic economy as a whole."); Leap
    Comments at 5; T-Mobile Comments at 7 (urging that down payments "be
    expeditiously returned"); Crown Castle Reply at 1; McBride Reply at
    7; Verizon Wireless Reply at 11.

[^63]: *See, e.g.,* Alaska Native Comments at 10-13; Black Crow Comments
    at 5; Lafayette Comments at 4; Salmon Comments at 21-23.

[^64]: Alaska Native Comments at 10; Alaska Native Reply at 2, 5-6.

[^65]: *Id.*

[^66]: *See* Salmon Comments at 21-23.

[^67]: *See* Alaska Native Comments at 11-13.

[^68]: *See* 47 U.S.C. § 309(j)(3)(B) and (j)(4) (directing the
    Commission to promote opportunities for small businesses and other
    designated entities to participate in the provision of
    spectrum-based services and technologies).

[^69]: In this way, the Auction 35 winning bidder might seek to obtain
    an advantage in future auctions or create a situation in which it
    has to be fought out at a premium by other parties.

[^70]: *See* 47 U.S.C. § 309(j)(3)(A) & (D).

[^71]: *See Partial Refund Order*, 17 FCC Rcd at 6291 ¶ 13 (refunding
    all but three percent of Auction No. 35 winners' net winning bids).
    For Eligible Auction 35 Winners that choose to keep their Pending
    Applications on file, we note that, as stated in the *Partial Refund
    Order*, "\[s\]hould the Commission prevail in the NextWave
    litigation, winning bidders in Auction No. 35 will be required to
    pay the full amount of their winning bids or be subjected to default
    payments under our rules." *Id.*

[^72]: *Id.*

[^73]: *See id.*

[^74]: *See* 47 C.F.R §§ 1.934(a)(2) (winning bidders may request
    dismissal of applications with prejudice, subject to default
    penalties); 1.2104(g) (default payments); 1.2109(b) (default
    penalties for bidders that withdraw after competitive bidding
    closes); 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, WT Docket
    No. 97-82, ET Docket No. 94-32, *Third Report and Order and Second
    Further Notice of Proposed Rule Making*, 13 FCC Rcd 374, 433 ¶ 102
    (1997). *See also Partial Refund Order*, 17 FCC Rcd at 6291 ¶ 13.

[^75]: *See* Alaska Native Comments at 2, 9, 15; Cingular Comments at 2,
    4; Cook Inlet Comments at 1, 7-9; CTIA Comments at 4, 7-8; DCC
    Comments at 5-6; Greater Boston Chamber Comments at 1; Lafayette
    Comments at 4; Leap Comments at 1, 5; Progress & Freedom Comments at
    3; Reiter/MacBride Comments at 1; Salmon Comments at 14-19; T-Mobile
    Comments at 2, 7-8; Triton Comments at 2 and n. 3; Verizon Comments
    at 16, 19, 22-23; 3DL Comments at 3. The only parties advocating
    imposition of monetary penalties are bidders that advocate similar
    relief to bidders in Auction No. 5 and claim that penalties similar
    to those imposed on Auction No. 5 bidders should be employed here.
    *See* Eldorado Comments at 5-7; Oncque Comments at 7. As discussed
    in greater detail below, those bidders' claims for relief are
    outside of the scope of this proceeding, and have no bearing on the
    issues at hand. *See infra,* paragraph 19.

[^76]: *See, e.g.,* Lafayette Comments, at 1, 4;

[^77]: *Partial Refund Order,* 17 FCC Rcd at 6291 ¶ 13.

[^78]: The Commission has long recognized that one of the principal
    purposes of the default rule "is to ensure that only serious and
    financially qualified bidders participate in the auction."
    *Competitive Bidding Fourth MO&O*, FCC 94-264 at ¶ 46 (1994).

[^79]: *See NextWave Settlement, supra* note 10.

[^80]: *See Partial Refund Order*, 17 FCC Rcd at 6289-91 ¶ 10, 12.

[^81]: *See* Nextel Comments at 8-12 (advocating a three-year
    prohibition on bidders from acquiring spectrum they successfully bid
    upon in Auction No. 35). *Cf.* Eldorado Comments at 3-4 (same bar
    should apply here as adopted in *C and F Block Restructuring Order*
    context for winning bidders in Auction No. 5). Most commenters
    oppose any restriction on future acquisitions. *See, e.g.,* 3DL
    Comments at 3 (restriction is not appropriate because applicants are
    not in default); Alaska Native Wireless Comments at 17 (bar would
    prevent "experienced and otherwise qualified" small businesses from
    participating in the provision of spectrum-based services); Cingular
    Comments at 9 (penalty is not warranted because Auction No. 35
    applicants are not in default and have complied with auction
    obligations); Cook Inlet Comments at 8 (bar would result in market
    inefficiencies and would undermine objective of auction process to
    award licenses to those who value them most highly); CTIA Comments
    at 5; DCC Comments at 3; Lafayette Comments at 1, 4-5; Leap Comments
    at 5; Reiter Comments at 1; Salmon PCS Comments at 14, 17-18 (bar
    would inappropriately prevent "experienced and otherwise qualified"
    small businesses from participating in the provision of
    spectrum-based services); T-Mobile Comments at 2, 7 (; Verizon
    Wireless Comments at 24-26 (bar would undermine rules and skew
    future auction results); Salmon Reply at 8-10 (three-year ban
    proposal fails to acknowledge fundamental differences between
    current circumstances and prior auction proceedings); T-Mobile Reply
    at 5-7 ("penalizing auction participants for good faith compliance
    with the Commission's auction rules disrupts the reasonable
    expectations of auction participants and clouds the auction process
    with uncertainty.").

[^82]: *See C and F Block Restructuring Order*, 12 FCC Rcd 16474 ¶ 84.

[^83]: *See* Alpine Comments at 1-3; Eldorado Comments 1-7; Onque
    Comments at 1-8; Mountain Solutions Reply at 1-5; Eldorado Reply at
    3-4; McBride Reply at 2-5.

[^84]: Eldorado Comments at 4-6; Eldorado Reply at 1-4. *See also* *ex
    parte* letter from Rep. John Tanner (dated Oct. 17, 2002), enclosing
    an October 11, 2002 letter from Eldorado.

[^85]: *See* *C Block Restructuring Order*, 12 FCC Rcd 16436; *C Block
    Restructuring Reconsideration Order,* 13 FCC Rcd at 8351-52 ¶ 18.

[^86]: *NextWave Personal Communications Inc. v. FCC*, 254 F.3d 130
    (D.C. Cir. 2001).

[^87]: Further, such requests for relief are untimely under the
    Commission's rules. *See* 47 C.F.R. § 1.429.

[^88]: Eldorado Petition.

[^89]: *See Partial Refund Order* at 2 n.5 and accompanying text. *See
    also* Eldorado Communications, LLC Opposition to Joint Request for
    Immediate Refund of Auction No. 35 Down Payments for NextWave
    Licenses (filed Jan. 17, 2002) ("Eldorado Opposition").

[^90]: *Id.*

[^91]: *See* Eldorado Opposition.

[^92]: An "Eligible Auction 35 Winner" is a winning bidder in Auction
    No. 35 with a pending application(s) for license(s) for spectrum
    that was previously licensed to NextWave Personal Communications
    Inc., NextWave Power Partners Inc. (collectively "NextWave"), or
    Urban Comm-North Carolina, Inc. ("Urban Comm"), and that is now
    subject to the NextWave litigation and Urban Comm proceedings
    ("NextWave/Urban Comm Spectrum").

[^93]: A "Pending Application" is a pending Auction No. 35 long-form
    application for one or more licenses for NextWave/Urban Comm
    Spectrum.

[^94]: Refunds will be processed via ACH credits. An ACH is an
    instrument for moving money electronically from one participating
    financial institution to another. ACH is a domestic funds transfer
    system providing an electronic parallel to the Federal Reserve check
    clearing system. ACH is governed by the Rules of the National
    Automated Clearing House Association.

[^95]: Letter from Secretary of Commerce Donald L. Evans to Chairman
    Michael K. Powell (Oct. 10, 2002).