> DA 01-1755 July 25, 2001

Mr. Lou Ebert

Devon Mobile Communications, L. P.

275 Oak Street

Suite 235

## Buffalo, NY 14203

Dear Mr. Ebert:

This letter responds to your May 3, 2001 letter on behalf of Devon
Mobile Communications, L. P. ("Devon").[^1] Devon requests a waiver of
the five percent (5%) late payment fee it incurred with respect to its
installment payment obligations on 22 broadband Personal Communications
Services ("PCS") C and F block licenses.[^2] For the reasons set forth
below, we deny Devon's request for waiver.

Quarterly installment payments on Devon's eight C block and fourteen F
block licenses were due to the Commission's account at Mellon Bank on
January 31, 2001. Devon acknowledges that the funds for Devon's
quarterly installment payments were received in the Commission's account
at Mellon Bank on February 1, 2001.[^3] Section 1.2110(f) of the
Commission's rules provides a quarterly grace period after the
installment payment due date and requires a five percent (5%) late
fee.[^4] In this instance, because Devon failed to pay the quarterly
installment payment on January 31, 2001, it incurred a five percent (5%)
late fee.

Devon contends that it missed the January 31, 2001 installment payment
deadline due to an administrative error by Northwest Savings Bank
("Northwest") that resulted in a failure to wire transfer funds from
Devon's account to the Commission's account at Mellon Bank.[^5] In
particular, Devon contends that, having sufficient funds in its bank
account to satisfy the installment payment, it authorized Northwest to
transfer funds from its account to the Commission's account at Mellon
Bank.[^6] Devon contends that its failure to timely submit its
installment payment was the direct result of Northwest's failing to
execute Devon's wire transfer instructions. Devon cites as support a
copy of its bank account statement showing adequate funds available for
the installment payment and its wire transfer instructions dated January
31, 2001.[^7] Devon alleges that a failure on the part of its bank to
timely transmit its payment justifies waiver of the late fees incurred.

To obtain a waiver of the Commission's installment payment rules,[^8]
Devon must show: (i) that the underlying purpose of the rule would not
be served, or would be frustrated, by its application in this particular
case, and that grant of the requested waiver would be in the public
interest; or (ii) that the unique facts and circumstances of the
particular case render application of the rule inequitable, unduly
burdensome or otherwise contrary to the public interest, or that Devon
has no reasonable alternative.[^9] For the reasons discussed below, we
find that the circumstances of your waiver request fail to meet the
Commission's standard for granting a waiver.

Devon has not demonstrated that the underlying purpose of the rule would
not be served, or would be frustrated, by its application in this
particular case. In adopting two consecutive quarterly grace periods and
requiring late payment fees from installment payment licensees that pay
after the original due date, the Commission intended to provide
licensees with adequate financial incentives to make installment
payments on time.[^10] In this instance, waiver of the five percent (5%)
late fee incurred would only serve to undermine the policies that
support enforcement of the Commission's installment payment deadlines.

We also are not persuaded that Devon has demonstrated circumstances
sufficient to justify the grant of a waiver in this case. Devon
initiated processing of the wire payment on the installment payment due
date,[^11] leaving little time for it to reasonably react to unforeseen
last-minute difficulties in the transmission of funds. In electing to
transfer funds on the due date, Devon bore the risk of routine
complications, such as an administrative error by its bank. These are
not unique circumstances sufficient to justify waiver of the late fee.
[^12] Accordingly, Devon's request is denied.

This action is taken pursuant to Sections 4(i), 4(j), 303(r), and 309(j)
of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
154(j), 303(r), and 309(j), under authority delegated pursuant to
Section 0.331 of the Commission's rules.[^13]

Sincerely,

Margaret W. Wiener

Chief, Auctions and Industry Analysis Division

Wireless Telecommunications Bureau

[Attachment A]{.underline}

### Licenses Subject to Late Charges Applicable to January 31, 2001 Installment Payment

[BTA Name]{.underline} [License \#]{.underline}

####  Ft. Pierce CWB152F 

####  Buffalo CWB060F 

####  Erie CWB131F 

####  Jamestown CWB215F 

####  Olean CWB330F 

####  Elmira CWB127F 

####  Ithaca CWB208F 

####  Pittsburgh CWB350F 

####  State College CWB429F 

####  Sharon PBB416C1 

####  Indiana PBB203C1

####  Oil City PBB328C1 

####  New Castle PBB317C1 

####  Meadville PBB287C1 

####  DuBois PBB117C1 

####  Danville CWB104F 

####  Lynchburg CWB266F 

####  Winchester CWB479F 

####  Staunton PBB430C1 

####  Martinsville PBB284C1 

####  Keene CWB227F 

####  Lebanon CWB249F

[^1]: Letter to Ms. Susan Donahue, Revenue and Receivables Group,
    Federal Communications Commission, from Mr. Lou Ebert, Vice
    President and General Manager, Devon Mobile Communications, L. P.
    (May 3, 2001) ("Request").

[^2]: Devon's C and F block licenses that are subject to late fees are
    listed in Attachment A.

[^3]: Request at 1.

[^4]: 47 C.F.R. § 1.2110(g)(4)(i) (2000). If remittance of the missed
    installment payment and the five percent (5%) late fee is not made
    before expiration of the first automatic quarterly grace period, the
    rule provides for a second automatic quarterly grace period and
    requires an additional late fee equal to ten percent of the missed
    payment. 47 C.F.R. § 1.2110(g)(4)(ii) (2000).

[^5]: Request at 1.

[^6]: *Id*.

[^7]: *See* Request.

[^8]: 47 C.F.R. § 1.2110(f) (1998).

[^9]: 47 C.F.R. § 1.925.

[^10]: *See* Amendment of Part 1 of the Commission's Rules ---
    Competitive Bidding Procedures, Allocation of Spectrum Below 5 GHz
    Transferred from Federal Government Use, 4660-4685 MHz, WT Docket
    97-82, *Third Report and Order and Second Further Notice of Proposed
    Rulemaking*, 13 FCC Rcd 374, 439-440 (1997) ("*Part 1 Third Report
    and Order*"); Amendment of Part 1 of the Commission's Rules ---
    Competitive Bidding Procedures, WT Docket 97-82, *Order on
    Reconsideration of the Third Report and Order, Fifth Report and
    Order, and Fourth Further Notice of Proposed Rulemaking*, 15 FCC Rcd
    15293, 15304-05, ¶ 19 (2000) (rejecting the argument that it is
    commercially unreasonable to impose the same late payment fee amount
    whether a payment arrives 1 day or 90 days late).

[^11]: *Request* at 1.

[^12]: *See also* In the Matter of Southern Communications Systems,
    Inc., Request for Limited Rule Waiver to Comply with PCS Installment
    Payment for C Bock Licenses in the Cleveland, TN BTA, *Memorandum
    Opinion & Order*, FCC 00-433 at ¶ 10 (rel. December 21, 2000)
    (holding that a failure to appropriately manage business
    arrangements does not justify waiver of the automatic cancellation
    rule); BDPCS, Inc., Emergency Petition for Waiver of Section
    24.711(a)(2) of the Commission's Rules, *Memorandum Opinion and
    Order*, 12 FCC Rcd 3230, 3235 ¶ 8 (1997) (holding that the failure
    of a third party to perform its contractual obligation does not
    constitute a special circumstance justifying a waiver of the down
    payment default rule).

[^13]: 47 C.F.R. § 0.331.