DA 99-1872

September 14, 1999

Mr. Jim Didier

Black Hills Broadcasting, L.L.C.

Rapid City, SD 57702

Dear Mr. Didier:

This letter responds to your letter of September 8, 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 notice of
the short-form application filing deadline.[^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, in December, 1997, you contacted the Commission via
telephone and requested your name be placed on a notification list for
the upcoming auction, but that you did not receive any notification of
the auction.[^8] You further state that, during the last week of August,
1999, you first learned of the August 20, 1999 short-form application
deadline.[^9] In addition, you 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.[^10]

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.[^11] 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*.
Review of these sources is your responsibility as an applicant and,
therefore, lack of actual notice does not excuse your failure to meet
the application deadline. The Bureau has repeatedly stated that all
applicants are responsible for maintaining current information regarding
Commission rules and public notices pertaining to auctions.[^12] In
addition, applicants are responsible for ensuring that their computer
systems are adequate to connect and interface with the Commission\'s
filing software.[^13] 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.

This action is taken under delegated authority pursuant to Section 0.331
of the Commission\'s Rules.[^14]

Sincerely,

Amy J. Zoslov

Chief, Auctions and Industry Analysis Division

Wireless Telecommunications Bureau

[^1]: *See* Letter from Jim Didier, Black Hills Broadcasting, L.L.C., to
    Mark Bollinger, Auctions and Industry Analysis Division, Wireless
    Telecommunications Bureau, Federal Communications Commission
    (September 8, 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]: *Letter* at 1.

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

[^10]: *Id*.

[^11]: *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).

[^12]: *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).

[^13]: *Broadcast Auction Public Notice*, Attachment D.

[^14]: 47 C.F.R. ? 0.331.