DA 99-1854

September 14, 1999

Mr. Richard Haeder

1410 West Boulevard

Rapid City, SD 57701

Dear Mr. Haeder:

This letter responds to your letter of September 9, 1999, requesting
waiver of the filing deadline for submission of FCC Form 175
(\"short-form application\") for Auction No. 25.[^1] You claim that
extenuating circumstances delayed the filing of your application and
request that you be permitted to file after the deadline of August 20,
1999, 5:30 p.m. Specifically, you claim that you did not have actual
notice of the short-form application filing deadline nor the date of the
auction itself.[^2]

To obtain a waiver of the Commission\'s auction application filing
deadline, you must show \"(i) that the underlying purpose of the rule
will not be served, or would be frustrated, by its application in the
particular case, and that grant of the waiver is otherwise in the public
interest; or (ii) that the unique facts and circumstances of a
particular case render application of the rule inequitable, unduly
burdensome or otherwise contrary to the public interest.\" [^3] For the
reasons cited below, we find that the circumstances you describe in
support of your waiver request fail to meet the Commission\'s criteria
for obtaining a waiver.

The Commission established the August 20, 1999 filing deadline in a
*Public Notice* released July 9, 1999.[^4] The Commission\'s Rules
require that short-form applications be electronically filed.[^5] To
facilitate filing, the Commission\'s remote access system was available
for submission of applications 24 hours per day beginning August 3,
1999.[^6] Applicants were cautioned that \"\[l\]ate applications or
unconfirmed submissions of electronic date will not be accepted.\"[^7]

You state that on or about September 2, 1999 you first learned of the
August 20, 1999 short-form application deadline and the September 23,
1999 auction start date.[^8] You further state that you were unable to
access information relating to the auction because the computer system
you utilized for this purpose failed to view or download information
contained on the Commission\'s website.[^9]

On the basis of the record before us, we are not persuaded that you have
demonstrated that application of the deadline in its case would undercut
or frustrate its purpose, nor do we find that you have presented unique
circumstances sufficient to justify grant of your waiver request. The
Commission\'s rules and public notices provided comprehensive notice of
filing procedures for Auction No. 25.[^10] The Commission\'s rules are
best served by applying deadlines in a fair and consistent manner. We
also believe that you had sufficient time to submit your application
prior to the filing deadline. Notice of the auction and relevant filing
deadlines were made via public notices and the *Federal Register*. By
your own admission, you missed the short-form application filing
deadline. Such an error is your responsibility as an applicant, and lack
of actual notice does not excuse your failure to meet the application
deadline. The Bureau has routinely stated that all applicants are
responsible for maintaining current information regarding Commission
rules and public notices pertaining to auctions.[^11] In addition,
applicants are responsible for ensuring that their computer systems are
adequate to connect and interface with the Commission\'s filing
software.[^12] Accordingly, we are not convinced that grant of waiver is
warranted or would be in the public interest. Therefore, your request
for waiver of the short-form application submission deadline is denied.
In addition, your request that your application be withdrawn and
application fees returned will be addressed by the Mass Media Bureau.

This action is taken under delegated authority pursuant to Section 0.331
of the Commission\'s Rules.[^13]

Sincerely,

Amy J. Zoslov

Chief, Auctions and Industry Analysis Division

Wireless Telecommunications Bureau

[^1]: *See* Richard Haeder Petition for Waiver, filed September 9, 1999
    (\"*Letter*\").

[^2]: *Id*. at 1.

[^3]: 47 C.F.R. 1.925; *Wait Radio v. FCC*, 418 F.2d 1153 (D.C. Cir.
    1969), *cert. denied,* 409 U.S. 1027 (1972)

[^4]: *See* \"Closed Broadcast Auction; Notice and Filing Requirements
    for Auction of AM, FM, TV, LPTV, and FM and TV Translator
    Construction Permits Scheduled for September 23, 1999; Minimum
    Opening Bids and Other Procedural Issues,\" *Public Notice*, DA
    99-1346 (rel. July 9, 1999) (\"*Broadcast Auction Public Notice*\").

[^5]: 47 C.F.R. 1.2105

[^6]: *Broadcast Auction Public Notice* at 12 and Attachment D, p. 1.

[^7]: *Broadcast Auction Public Notice*, Attachment D, p. 1.

[^8]: *See Letter* at 1.

[^9]: *Id*. at 1-2.

[^10]: *See* footnote 4, *supra*. *See also* Implementation of Section
    309(j) of the Communications Act \-- Competitive Bidding for
    Commercial Broadcast and Instructional Television Fixed Services
    Licensees, MM Docket No. 97-234, *First Report and Order*, 13 FCC
    Rcd 15920 (1998) (\"*Broadcast First Report and Order*\"), *recon
    denied*, *Memorandum Opinion and Order*, FCC 99-74 (rel. Apr. 20,
    1999), *modified, Memorandum Opinion and Order*, FCC 99-201 (rel.
    Aug. 5, 1999).

[^11]: *Broadcast Auction Public Notice*, p. 6. *See also* Two-Way Radio
    of Carolina, Inc., Request for Waiver of 47 C.F.R. 1.2105(b)(2),
    *Memorandum Opinion and Order*, FCC 99-189, 13 (rel. July 22, 1999);
    *AMK International Inc.*, 12 FCC Rcd 1511, 1514, 9 (WTB 1997).

[^12]: *Broadcast Auction Public Notice*, Attachment D.

[^13]: 47 C.F.R. 0.331.