DA 01-1719

July 16, 2001

Mark Crosby, Esq.

Access Spectrum, LLC

3 Bethesda Metro Center,

Suite 700

Bethesda, Maryland 20814

> **Re: Refunds For Auction No. 33**

Dear Mr. Crosby:

Access Spectrum, LLC ("Access"), a participant in Auction No. 33,
withdrew a high bid on license MEA012(A) in that auction.[^1] Auction
No. 38, the subsequent auction for the license on which Access withdrew
a high bid in Auction No. 33, has closed.[^2] Therefore, in accordance
with the Commission's rules, we are now able to determine that no
withdrawal payment is owed and calculate the appropriate refund, as
described below.

Under the Commission's Rules, a bidder that withdraws a high bid during
the course of an auction is subject to a bid withdrawal payment equal to
the difference between the amount of the withdrawn bid and the amount of
the subsequent winning bid.[^3] If a high bid is withdrawn on a license
that remains unsold at the close of the auction, the withdrawing bidder
will be required to make an interim payment equal to three percent (3%)
of the net amount of the withdrawn bid.[^4] This payment amount is
deducted from any up-front payments or down payments deposited for this
bidder's account with the Commission.[^5] If, in a subsequent auction,
that license receives a winning bid in an amount equal to or greater
than the withdrawn bid amount, then no final bid withdrawal payment will
be assessed, and upon appropriate request, the Commission will refund
the interim three percent (3%) payment.[^6] If, in a subsequent auction,
the winning bid for that license is less than the bidder's withdrawn bid
amount, then the bidder will be required to make a final bid withdrawal
payment equal to either the difference between the bidder's net
withdrawn bid and the subsequent net winning bid, or the difference
between the bidder's gross withdrawn bid and the subsequent gross
winning bid, whichever is less.[^7]

With respect to Access's withdrawal in Auction No. 33, the Commission
has previously deducted an interim withdrawal payment of \$60,795.00
from the funds on deposit with the Commission.[^8] As shown in
Attachment A, the net winning bid amount, \$3,831,000.00, in the
subsequent auction of license MEA012(A) was greater than Access' net
withdrawn bid amount, \$2,026,500.00.[^9] Therefore, in accordance with
Section 1.2104 of the Commission's rules, the Commission is prepared to
refund the payor(s) of record the \$60,795.00 withheld in connection
with license MEA012(A). To obtain a refund, the payor(s) of record
should follow the instructions set forth in Attachment B.[^10]

If you have additional questions or require further information, please
contact Howard C. Davenport in the Auctions and Industry Analysis
Division at (202) 418-0660.

Sincerely,

Margaret W. Wiener, Chief

> Auctions and Industry Analysis Division
>
> Wireless Telecommunications Bureau

**[ATTACHMENT A]{.underline}**

**700 MHz Guardband Auction**

**Multi-Auction Refund Report**

  ----------- -------- --------------- ---------------- ---------------- ---------------- --------------- ------------ ------------- -----------
  **License   **Freq   **Market        **Pegasus Guard  **Access         **Access         **Access        **Access                   **Refund
  Number**    Blk**    Description**   Band, LLC\'s Net Spectrum, LLC\'s Spectrum, LLC's  Spectrum,       Spectrum,                  Amount Due
                                       Bid Amount       Withdrawn Gross  Withdrawn Net    LLC\'s Original LLC\'s                     Access
                                       (Auction 38)**   Bid Amount       Bid Amount       Withholding**   Withdrawal                 Spectrum,
                                                        (Auction 33)**   (Auction 33)**                   Payment**                  LLC**

                                                                                                                                     

  MEA012      A        Pittsburg, PA   \$3,831,000.00   \$2,702,000.00   \$2,026,500.00   \$60,795.00     \$0.00       \$60,795.00   
  ----------- -------- --------------- ---------------- ---------------- ---------------- --------------- ------------ ------------- -----------

**[ATTACHMENT B]{.underline}**

**REQUESTING REFUND INSTRUCTIONS**

In order to process refund requests, the FCC must receive wire transfer
instructions that include the following information:

Name and Address of Bank

ABA Number

Contact and Phone Number

Account Number to Credit

Name of Account Holder

Correspondent Bank (if applicable)

ABA Number

Account Number

Please include your Taxpayer Identification Number (TIN) and a copy of
this letter. This information should be sent to the Auctions Accounting
Group:

Federal Communications Commission

Auctions Accounting Group

Attn: Michelle Bennett or Gail Glasser

445 12^th^ Street, SW, Room 1-A843

Washington, DC 20554

Requests can also be faxed to the Auctions Accounting Group at (202)
418-2843.

[^1]: 700 MHz Guard Bands Auction Closes, Winning Bidders Announced,
    Down Payments Due October 10, 2000, *Ten-Day Petition to Deny
    Period*, *Public Notice*, DA 00-2154 at Attachment C (rel. September
    25, 2000) ("*Auction No. 33 Winning Bidders' Public Notice*").
    Access also withdrew a high bid with respect to license MEA047.
    However, that license was sold in Auction No. 33 for a net high bid
    greater than Access' withdrawn bid, thus no withdrawal payment
    attached.

[^2]: 700 MHz Guard Bands Auction Closes, Winning Bidders Announced,
    Down Payments Due March 8, 2001, *Ten-Day Petition to Deny Period,
    Public Notice*, DA 01-478 (rel. February 22, 2001) ("*Auction No. 38
    Winning Bidders' Public Notice"*).

[^3]: 47 C.F.R. § 1.2104(g)(1).

[^4]: *Id*; *Auction No. 33 Winning Bidders' Public Notice* at
    Attachment C. This attachment identifies bidders that withdrew bids
    in Auction 33 and indicates the interim three percent bid withdrawal
    payment.

[^5]: *See* 47 C.F.R. § 1.2106(e); *Auction No. 33 Winning Bidders'
    Public Notice* at Attachment C.

[^6]: 47 C.F.R. § 1.2104(g)(1).

[^7]: *Id.*

[^8]: *See Auction No. 33 Winning Bidders' Public Notice*, at
    Attachments B and C. In Attachment B, the Commission set forth the
    amount of Access' interim bid withdrawal payment, \$60,795.00. In
    Attachment C, the Commission explained that the \$60,795.00 interim
    bid withdrawal payment was based on three percent (3%) of the net
    withdrawn bid on license MEA012 (\$2,026,500 X 3%= \$60,795.00).

[^9]: Attachment A (calculates the refund); *Auction No. 38 Winning
    Bidders' Public Notice* at Attachment C (Attachment C sets forth the
    withdrawal payments or refunds, based upon a reconciliation of final
    results in Auction No. 33 and Auction No. 38).

[^10]: *Id*.; *See* Entertainment Unlimited, Inc., Request for Refund of
    Late Payment Fees for PCS Licenses Purchased in Auction No. 22,
    *Memorandum Opinion and Order*, FCC No. 01-155 (rel. May 9, 2001)
    (noting that the Commission does not accept instructions regarding
    the refund of excess upfront payments from entities or individuals
    other than the payor of record).