**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | FCC File No. 0000013644      |
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| LMDS COMMUNICATIONS, INC.        | ) |                              |
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| Request For Waiver of Sections   | * |                              |
| 1.2109(a) and (c), 1.2104(g) and |   |                              |
| 101.1105(b) of the Commission's  | * |                              |
| Rules Regarding BTA117, BTA122,  | * |                              |
| BTA203, BTA215, BTA218, BTA287,  | ) |                              |
| BTA317, BTA328, BTA330, BTA335,  | * |                              |
| BTA375 and BTA416                | * |                              |
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**ORDER ON RECONSIDERATION**

**Adopted:** November 28, 2000 **Released:** November 30, 2000

By the Deputy Chief, Wireless Telecommunications Bureau:

# INTRODUCTION

1.  We have before us a Petition for Reconsideration filed by LMDS
    Communications, Inc. (LMDSC) on April 17, 2000.[^1] LMDSC requests
    that the Public Safety and Private Wireless Division (Division)
    reconsider its March 10, 2000 decision to deny a waiver in the
    above-captioned proceeding.[^2] For the reasons discussed below, we
    deny LMDSC's request.

# BACKGROUND

2.  On May 12, 1999, at the close of Auction No. 23, LMDSC was the high
    bidder for twelve Local Multipoint Distribution Service (LMDS)
    licenses totaling \$990,550.00.[^3] Prior to the auction, on April
    12, 1999, LMDSC submitted an upfront payment of \$125,000.00.
    Following the auction, on May 26, 1999, LMDSC submitted a down
    payment of \$73,110.00. On August 9, 1999, the Wireless
    Telecommunications Bureau (Bureau) conditionally granted
    applications for 127 LMDS licenses, including the twelve licenses
    for which LMDSC was the high bidder.[^4] These license grants were
    conditioned upon the full and timely payment of the remaining
    balance of each applicant\'s winning bid by August 23, 1999.[^5] The
    Commission\'s competitive bidding rules afford applicants who fail
    to meet the initial deadline with an additional ten business days to
    make payment, provided they also pay a late fee equal to five
    percent of the amount due.[^6] Thus, LMDSC had until September 7,
    1999, to remit full payment.

3.  At the time the LMDS Conditional Grant Public Notice was released,
    the balance left on LMDSC\'s twelve licenses totaled \$792,440.00.
    Prior to September 7, 1999, LMDSC remitted a total of
    \$396,220.00,[^7] leaving an unpaid balance of \$396,220.00. On
    September 7, 1999, LMDSC filed a request seeking a sixty-day
    extension of the payment deadline.[^8] In the alternative, LMDSC
    requested that, since it had already remitted payments totaling
    \$633,952.00, it should be allowed to default selectively on four
    licenses (namely, those licenses for markets BTA122, BTA218, BTA335
    and BTA375), and receive an unconditional grant of the remaining
    eight licenses (those licenses for markets BTA117, BTA203, BTA215,
    BTA287, BTA317, BTA328, BTA330 and BTA416) for which LMDSC paid in
    full.[^9]

4.  On March 17, 2000, the Division released an *Order* granting in part
    and denying in part LMDSC's request.[^10] Specifically, the Division
    granted LMDSC's request to default selectively on certain licenses
    and retain those licenses for which LMDSC had made sufficient
    payment to cover its bid amounts therefor.[^11] The Division stated
    that the overall integrity of the auction process itself depends on
    timely payments by winning bidders, because prompt payment is an
    objective indicator that a winning bidder is financially able to
    meet its obligations and intends to provide service to the
    public.[^12] The Division noted that the Commission has granted
    partial waivers in certain limited situations where the failure to
    pay was based upon inadvertent error and where a bidder had
    immediately remitted payment and evidenced an ability to pay at the
    time of the original deadline.[^13] The Division concluded, however,
    that those cases were inapposite because the very nature of LMDSC's
    request for an additional sixty days to secure financing indicated
    that LMDSC lacked immediate access to the necessary funds at the
    payment due date, as required by the relevant Commission
    precedent.[^14] Thus, LMDSC may not be able to make prompt payment
    and provide service to the public.

5.  On April 17, 2000 LMDSC filed its Petition.[^15] LMDSC believes that
    it has met the criteria for granting a waiver and that the sixty-day
    extension should therefore have been granted.[^16] LMDSC states that
    it is presenting new evidence concerning its financial
    qualifications, which emerged only after the initial waiver request
    was filed.[^17] Thus, LMDSC requests that the Bureau reconsider and
    reverse the denial of the waiver request, and provide LMDSC an
    opportunity to submit the balance of the payment on its winning bids
    for the remaining LMDS licenses.[^18]

# DIscussion

6.  Reconsideration is appropriate only where the petitioner either
    shows a material error or omission in the original order or raises
    additional facts not known or not existing until after the
    petitioner's last opportunity to present such matters.[^19] A
    petition that simply reiterates arguments previously considered and
    rejected will be denied.[^20]

7.  Based on our review of this matter, we conclude that reversal of the
    Division's decision is not warranted. LMDSC claims that the Petition
    contains "new evidence concerning its financial qualifications,
    which emerged only after the initial petition for waiver was
    filed."[^21] That evidence consists of LMDSC's representation that
    "\[w\]ithin a week after LMDSC filed the waiver request on September
    7, Mr. Goodman had secured verbal commitments from other investors
    to provide funds for the license payment, if necessary."[^22] We do
    not consider that information to be new information because, in its
    original waiver request, LMDSC represented that it had a "back-up
    financial arrangement" and that it wished to implement that
    plan.[^23] Moreover, LMDSC did not supplement its waiver request
    between September 1999 and the release of the *Order* on March 17,
    2000 to describe such arrangement in more detail. We have reviewed
    LMDSC's Petition and determined that its arguments were fully
    considered in the *Order*. Accordingly, we deny LMDSC's Petition.

# ORDERING CLAUSES

8.  Accordingly, IT IS ORDERED that pursuant to Section 4(i) of the
    Communication Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Sections 1.106, 1.925, 1.2109(a), 1.2109(c), 1.2104(g) and
    101.1105(b) of the Commission's Rules, 47 C.F.R. §§ 1.106, 1.925,
    1.2109(a), 1.2109(c), 1.2104(g) and 101.1105(b), the petition for
    reconsideration filed by the LMDS Communications, Inc. on April 17,
    2000, IS DENIED.

9.  This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission\'s Rules, 47 C.F.R. §§ 0.131,
    0.331.

FEDERAL COMMUNICATIONS COMMISSION

Kathleen O'Brien Ham

Deputy Chief, Wireless Telecommunications Bureau

[^1]: LMDS Communications, Inc. Petition for Reconsideration (filed
    April 17, 2000) (Petition).

[^2]: LMDS Communications, Inc. Request for Waiver of Sections 1.2109(a)
    and (c), 1.2104(g) and 101.1105(b) of the Commission's Rules
    Regarding BTA117, BTA 122, BTA203, BTA215, BTA218, BTA287, BTA317,
    BTA328, BTA330, BTA335, BTA375 and BTA416, *Order*, 15 FCC Rcd 8618
    (WTB PSPWD 2000) (*Order*).

[^3]: LMDSC was the high bidder on licenses for the following markets:
    BTA117, Du Bois-Clearfield, PA; BTA122, East Liverpool-Salem OH;
    BTA203, Indiana, PA; BTA215, Jamestown-Dunkirk, NY- Warren, PA;
    BTA218, Johnstown, PA; BTA287, Meadville, PA; BTA317, New Castle,
    PA; BTA328, Oil City-Franklin, PA; BTA330, Olean, NY -Bradford, PA;
    BTA335, Orangeburg, SC; BTA375, Riverton, WY; and BTA416, Sharon,
    PA. *See* Local Multipoint Distribution Service Auction Closes,
    *Public Notice,* 14 FCC Rcd 8543 (1999).

[^4]: *See* FCC Announces Conditional Grant of 127 Local Multipoint
    Distribution Service Licenses, Auction No. 23, *Public Notice,* 14
    FCC Rcd 13200 (1999) (LMDS Conditional Grant Public Notice).

[^5]: *Id.* at 13200.

[^6]: 47 C.F.R. § 1.2109(a).

[^7]: On August 23, 1999, LMDSC submitted a portion of this amount
    (\$171,220.00). It remitted the remainder (\$225,000.00) on August
    30, 1999, before the late payment deadline. On September 3, 1999,
    LMDSC also remitted a five percent late payment of \$39,622.00. The
    actual late payment owed on the licenses LMDSC retained was
    \$23,672.00. Accordingly, the over payment amount of \$15,950.00
    will be applied to the payment for these licenses.

[^8]: LMDS Communications, Inc., Request for Waiver of Sections
    1.2109(a) and (c), 1.2104(g) and 101.1105(b) of the Commission\'s
    Rules (filed September 7, 1999) (Waiver Request).

[^9]: On March 3, 2000, LMDSC amended its September 7, 1999, waiver
    request to revise the list of licenses it was seeking to retain. The
    caption accurately reflects the amended request. *See* Letter from
    Larry Blosser, Blumenfeld & Cohen to Catherine Fox, Public Safety &
    Private Wireless Division, Wireless Telecommunications Bureau (March
    3, 2000).

[^10]: *Order*, 15 FCC Rcd at 8618 ¶ 1.

[^11]: *Id.* at 8623 ¶ 10.

[^12]: *Id*. at 8621 ¶ 7; *see* *Mountain Solutions v. FCC*, 197 F.3d
    512 (D.C. Cir. 1999) (upholding the Commission's decision to deny a
    waiver of the down payment rules).

[^13]: *Order*, 15 FCC Rcd at 8621 ¶ 7; *Mountain Solutions*, 197 F.3d
    at 515-516.

[^14]: *Order*, 155 FCC Rcd at 8622 ¶ 8.

[^15]: Petition.

[^16]: *Id*. at 2.

[^17]: *Id*.

[^18]: *Id*.

[^19]: *WWIZ, Inc*., 37 FCC 685, 686 (1964), *aff'd sub nom.* *Lorain
    Journal Co. v. FCC*, 351 F.2d 824 (D.C. Cir. 1965), *cert. denied*,
    383 U.S. 967 (1966); 47 C.F.R. § 1.106(c).

[^20]: *WWIZ, Inc.*, 37 FCC at 686; *Gaines, Bennett Gilbert*, 8 FCC Rcd
    3986 (Rev. Bd. 1993); 47 C.F.R. § 1.106.

[^21]: Petition at 2.

[^22]: *Id.* at 4.

[^23]: *See* Waiver Request at 8.