Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| Weblink Wireless, Inc.           | ) |                              |
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| Request for Remedial Bidding     | * |                              |
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**ORDER**

**Adopted:** May 3, 2001 **Released:** May 3, 2001

By the Deputy Chief, Wireless Telecommunications Bureau:

**I. INTRODUCTION**

1\. We have before us a request for a retroactive bidding credit filed
by Weblink Wireless, Inc. ("Weblink"), a winning bidder in the auctions
for licenses in the national and regional narrowband Personal
Communications Service ("PCS").[^1] In its request, Weblink seeks a 25
percent retroactive bidding credit for the license that it won in the
nationwide narrowband PCS auction and a 40 percent bidding credit for
each of the five licenses that it won in the regional narrowband PCS
auction.[^2] For the reasons stated below, we dismiss Weblink's Request.

II. **BACKGROUND**

2\. From July 25 through July 29, 1994, the Commission conducted an
auction consisting of ten nationwide narrowband PCS licenses[^3]
("Auction No. 1") pursuant to rules adopted in the Commission's
*Competitive Bidding Second Report and Order* and the *Competitive
Bidding Third Report and Order.*[^4] One of those rules allowed women-
and minority-owned businesses that were winning bidders for certain
nationwide, regional, major trading area ("MTA"), and basic trading area
("BTA") narrowband PCS licenses to apply for a 25 percent bidding
credit.[^5] On August 17, 1994, the Commission announced the winning
bidders in the nationwide narrowband PCS auction whose applications were
accepted for filing.[^6] Under the auction rules, bidding credits were
available to qualified entities for three of the ten national narrowband
PCS licenses.[^7] None of the seven winning bidders, including
Weblink,[^8] qualified for the 25 percent bidding credit offered to
women- and minority-owned businesses.[^9]

3.  From October 26, 1994 through November 8, 1994, the Commission
    conducted an auction consisting of thirty regional narrowband PCS
    licenses ("Auction No. 3") pursuant to rules adopted in the
    *Narrowband Third* *Memorandum Opinion and Order*.[^10] One of those
    rules allowed women- and minority-owned businesses that were winning
    bidders to apply for a 40 percent bidding credit.[^11] Under the
    auction rules, bidding credits were available to qualified entities
    for ten of the thirty regional narrowband PCS licenses.[^12] Women
    -- or minority-owned entities won all of the ten regional narrowband
    PCS licenses for which a 40 percent bidding credit could be
    applied.[^13] Weblink,[^14] which was among the winning bidders, did
    not win a license for which a bidding credit was available.[^15]

4.  On June 12, 1995, the Supreme Court held in *Adarand Constructors,
    Inc. v. Pena* that any federal program in which the \"government
    treats any person unequally because of his or her race\" must
    satisfy the \"strict scrutiny\" constitutional standard of judicial
    review.[^16] Almost five years later, on June 8, 2000, Weblink filed
    its Request for retroactive bidding credits for the nationwide and
    regional narrowband PCS licenses that it won in Auction No. 1 and
    Auction No. 3.[^17] Weblink does not allege that it has previously
    raised any concerns regarding the constitutionality of bidding
    credits in either the nationwide or regional narrowband PCS
    auctions, whether through the comment and reply comment process in
    the rule making proceedings or through a petition for
    reconsideration of either the *Competitive Bidding Second Report and
    Order*, *Competitive Bidding Third Report and Order*, the
    *Narrowband Third Memorandum Opinion and Order*, or the closing PN
    for either Auction No. 1 or Auction No. 3.[^18]

5\. In its Request, Weblink alleges that the bidding credits offered to
women- and minority-owned businesses were unconstitutional and had the
effect of skewing the results of the auction as minority and women owned
business "bid-up" the price for spectrum.[^19] Weblink argues that the
passage of time does not bar review of its claim because the Commission
granted a post-auction bidding credit to eligible small business in the
218-219 MHz service.[^20]

III. **DISCUSSION**

6\. Weblink's request for a retroactive bidding credit is barred by the
doctrine of waiver, *i.e*., a party with sufficient opportunity to raise
a challenge in a timely manner, but who fails to do so, is deemed to
have waived the challenge and is precluded from raising it
subsequently.[^21] Weblink had the opportunity to file comments
objecting to the constitutionality of the proposed bidding credit rules
in the proceedings resulting in the *Competitive Bidding Second Report
and Order, Competitive Bidding Third Report and Order* and the
*Narrowband Third Memorandum Opinion and Order*, but did not do so.[^22]
In fact, after no minority- or women-owned entities won licenses in the
nationwide narrowband PCS auction, Weblink filed comments supporting
both bidding credits and entrepreneur blocks for women and minorities
participating in the subsequent regional narrowband PCS auction.[^23]
Weblink also could have attempted to raise the constitutional issue upon
conclusion of either auction in 1994.[^24] Again, Weblink failed to do
so. Weblink also could have timely objected to the payment conditions
attendant to its license grants.[^25] Finally, neither the release of
the *Adarand* decision nor the *218-219 MHz Order* provided a milepost
of timely objection as Weblink's request was filed almost five years
after *Adarand* and nine months after the *218-219 MHz Order*.

7\. In support of its position that its request is not untimely, Weblink
relies upon *Graceba Total Communications* and *James Beam Distilling
Company v. Georgia.*[^26] Such reliance is misplaced. Graceba, a
participant in the 218-219 MHz auction ("Auction No. 4"), raised the
issue of constitutionality of the bidding credit in a post-*Adarand*
supplement to its timely-filed petition for reconsideration of the
public notice announcing the results in the 218-219 MHz auction.[^27]
The Weblink Request is neither timely filed petition for reconsideration
nor a supplement to a timely filing. Rather, the Weblink Request for a
retroactive bidding credit is analogous to the facts of *Community
Teleplay* in which the Wireless Telecommunications Bureau ("Bureau")
rejected Community Teleplay's request for a retroactive bidding credit
because the filing was untimely.[^28] Like Weblink, Community Teleplay,
which won licenses in the 218-219 MHz auction, filed a belated request
under Section 1.41[^29] of our rules and relied on *Graceba* to argue
that its filing was not untimely.[^30] In addition, like Weblink,
Community Teleplay's request was not filed as a supplement to a timely
filed petition for reconsideration.[^31] Community Teleplay and Weblink
both participated in auctions that preceded the *Adarand* decision.

Community Teleplay's petition was found to be untimely because it was
filed six months after the *Adarand* decision.[^32] Similarly, Weblink's
Request is also untimely because it was filed nearly five years after
the *Adarand* decision.

8\. Weblink's reliance on the Supreme Court's decision in *Jim Beam
Distilling*[^33] is similarly misplaced. In that instance, the Supreme
Court specifically noted that once a court has applied a rule of law to
litigants in one case it must do so with respect to all "others not
barred by procedural requirements or res judicata."[^34] Thus, *James
Beam Distilling* specifically upholds a party's responsibility to comply
with procedural requirements.[^35] As stated above, Weblink failed to
comply with procedural requirements and review here is barred by the
doctrine of waiver.

9\. Finally, Weblink contends that under *Melody Music* the Commission's
actions with respect to the 218-219 MHz service require it to grant a
retroactive bidding credit here.[^36] Such a conclusion is misplaced. As
the Commission has recently noted in the *218-219 MHz Second Order on
Reconsideration*, the retroactive credit afforded to winning bidders in
the 218-219 MHz service auction was not a direct remedy for race and
gender discrimination.[^37] Rather, in order to address the questions
raised by a timely filed challenge to the auction rules concerning the
constitutionality of race- and gender-based bidding credits, the
Commission eliminated those credits.[^38] This was the extent of the
"remedy" provided. However, as the issue was not raised until after the
auction closed, the Commission determined that it would be disruptive
and unfair not to provide some form of bidding credit in the 218-219 MHz
service, as licensees had crafted business plans in reliance upon the
credit.[^39] Accordingly, the Commission determined to afford to winning
bidders in the 218-219 MHz service auction that qualified as small
businesses a retroactive bidding credit.[^40] The credit solved a
multi-faceted and complex set of regulatory issues.[^41] However, such a
complex procedural situation is not presented here. Thus, the

directive in *Melody Music* to accord the same treatment to similarly
situated parties is not implicated by Weblink's request. Accordingly, in
view of Weblink\'s failure to timely raise its constitutional challenge
despite repeated opportunities to do so, Weblink has waived the
opportunity to raise this issue now.[^42]

IV. **ORDERING CLAUSE**

10\. Accordingly, for the foregoing reasons, IT IS ORDERED that the
Request for Remedial Bidding Credit and Refund filed on June 8, 2000, IS
HEREBY DISMISSED. This action is taken pursuant to authority delegated
by Section 0.331 of the Commission\'s Rules, 47 C.F.R. § 0.331.

FEDERAL COMMUNICATIONS COMMISSION

Kathleen O'Brien Ham

Deputy Chief, Wireless Telecommunications Bureau

[^1]: Request for Remedial Bidding Credit and Refund, filed by Weblink
    Wireless, Inc. on June 8, 2000 ("Weblink Request").

[^2]: "Announcing the High Bidders in the Auction of Ten Nationwide
    Narrowband PCS Licenses; Winning Bids Total \$617,006,674," *Public
    Notice*, PNWL 94-004 (rel. Aug. 2, 1994) ("*Nationwide Narrowband
    PCS Closing PN*"); "Narrowband PCS Nationwide Auction Winners,"
    *Public Notice*, PNWL 94-009, Report No. PCS-NB-94-1 (rel. Aug. 17,
    1994) ("*Nationwide Narrowband PCS Accepted for Filing PN*");
    "Announcing the High Bidders in the Auction of 30 Regional
    Narrowband (PCS) Licenses; Winning Bids Total \$490,901,787,"
    *Public Notice*, PNWL 94-27 (rel. Nov. 9, 1994) ("*Regional
    Narrowband PCS Closing PN*").

[^3]: *Nationwide Narrowband PCS Closing PN.*

[^4]: In the Matter of Implementation of Section 309(j) of the
    Communications Act \-- Competitive Bidding and Amendment of the
    Commission's Rules to Establish New Narrowband Personal
    Communication Services, PP Docket No. 93-253*, Second Report and
    Order*, 9 FCC Rcd 2348, 2398-2400 (1994) (*"Competitive Bidding
    Second Report and Order*"); In the Matter of Implementation of
    Section 309(j) of the Communications Act \-- Competitive Bidding, PP
    Docket No. 93-253, *Third Report and Order*, 9 FCC Rcd 2941 (1994)
    ("*Competitive Bidding Third Report and Order")*.

[^5]: *Id.* at 2970 ¶ 72.

[^6]: *Nationwide Narrowband PCS Accepted for Filing PN*.

[^7]: *Competitive Bidding Third Report and Order*, 9 FCC Rcd at 2945 ¶
    10, 2983.

[^8]: Weblink, then know as PageMart Wireless, Inc., participated
    through its subsidiary Pagemart II, Inc., which won one nationwide
    narrowband PCS license. *Id; see also* Weblink Request at 1.

[^9]: *Nationwide Narrowband PCS Closing PN; Nationwide Narrowband PCS
    Accepted for Filing PN; see also* In the Matter of Implementation of
    Section 309(j) of the Communications Act \-- Competitive Bidding and
    Amendment of the Commission's Rules to Establish New Narrowband
    Personal Communication Services, PP Docket No. 93-253, *Third
    Memorandum Opinion and Order and Further Notice of Proposed
    Rulemaking*, 10 FCC Rcd 175, 178 ¶ 4 (1994) ("*Narrowband Third
    Memorandum Opinion and Order").*

[^10]: *Narrowband Third Memorandum Opinion and Order*.

[^11]: *Id.* at 201 ¶ 58, 215-16 ¶ 87.

[^12]: *Competitive Bidding Third Report and Order*, 9 FCC Rcd at 2945 ¶
    10; *Narrowband Third Memorandum Opinion and Order* 10 FCC Rcd at
    233.

[^13]: *Regional Narrowband PCS Closing PN*; "FCC Announces the Receipt
    of Down Payments from The High Bidders in the Auction of 30 Regional
    Narrowband PCS Licenses," *News Release* (rel. Nov. 29, 1994).

[^14]: Weblink, then know as PageMart Wireless, Inc., participated
    through its subsidiary Pagemart II, Inc., which won five regional
    narrowband PCS license. *Regional Narrowband PCS Closing PN.*

[^15]: *Regional Narrowband PCS Closing PN*; "FCC Announces the Receipt
    of Down Payments from The High Bidders in the Auction of 30 Regional
    Narrowband PCS Licenses," *News Release* (rel. Nov. 29, 1994).

[^16]: *Adarand Constructors, Inc. v. Pena*, 515 U.S. 200, 229-30
    (1995).

[^17]: Weblink Request.

[^18]: *See* Comments, Reply Comments and Ex Parte filings made by
    Weblink and Pagemart in PP Docket No. 93-253. The constitutionality
    of bidding credits for designated entities was explicitly considered
    by the Commission in the rule makings that affected the nationwide
    and regional narrowband auctions. *Competitive Bidding Second Report
    and Order*, 9 FCC Rcd 2348, 2398-2400 ¶¶ 54, 289-297 (1994);
    *Competitive Bidding* *Third Report and Order,* 9 FCC Rcd 2941, 2973
    n.47.

[^19]: Weblink Request at 3. A fundamental assumption to Weblink's
    argument it that it knowingly made excessive bids for licenses in
    Auction No(s). 1 and 3. Weblink does not argue that women- and
    minority-owned businesses outbid it for licenses it wished to
    acquire.

[^20]: Weblink Request at 4 (citing *Graceba Total Communications, Inc.
    v. FCC,* 155 F.3d 1038 (D.C. Cir. 1997); Amendment of Part 95 of the
    Commission's Rules to Provide Regulatory Flexibility in the 218-219
    MHz Service, *Report and Order and Memorandum Opinion and Order*,
    FCC 99-239, 15 FCC Rcd 1497 (1999) ("*218-219 MHz Order"*)).

[^21]: *Adelphia Communications Corp. v. FCC*, 88 F.3d 1250, 1256 (D.C.
    Cir. 1996); *Northwestern Indiana Telephone Co., Inc. v. FCC*, 872
    F.2d 465, 470 (D.C. Cir. 1989); In the Matter of Community Teleplay,
    Inc., et. al., *Order*, 13 FCC Rcd 12,426, 12428 ¶ 5 (WTB 1998)
    ("*Community Teleplay"*); *Jerome Thomas Lamprecht*; 7 FCC Rcd 6794,
    6794 (1992).

[^22]: *See supra* note 16.

[^23]: Comments of Pagemart, Inc., In the mater of Implementation of
    Section 309(j) of the Communications Act -- Competitive Bidding
    Narrowband PCS, PP Docket No. 93-253 (filed September 16, 1994);
    s*ee also* *Competitive Bidding Third Report and Order,* 10 FCC Rcd
    at 201 ¶ 58 (Commission increased the bidding credit to 40 percent
    because women- and minority-owned bidders did not win any licenses
    in the nationwide narrowband PCS auction).

[^24]: We note that public notices are subject to reconsideration only
    in limited circumstances. *See, e.g.,* In the Matter of Public
    Notice DA 00--49, Auction of C and F Block Broadband PCS Licenses,
    NextWave Personal Communications, Inc., and NextWave Power Partners,
    Inc., Petition for Reconsideration, Settlement Request Pursuant to
    DA 99‑745 For Various Broadband PCS C Block Licenses, *Order on
    Reconsideration*, 15 FCC Rcd 17500, 17505-17506, ¶ 10, n.38-39
    (2000) (explaining that in some instances it may be proper for a
    party to challenge a public notice that establish or deny rights);
    In the Matter of Additional Information Regarding Broadband PCS
    Spectrum Included in the Auction Scheduled for March 23, 1999,
    Order, 14 FCC Rcd 6561, 6562 ¶ 3 (1999) (Commission considered an
    application for review of a public notice that established an
    auction date despite the procedural deficiency of the application).

[^25]: Section 1.110 of the Commission's rules provide that if the
    Commission grants an application with conditions, the applicant must
    accept those conditions unless it rejects them within thirty days.
    47 C.F.R. § 1.110. Thus, Weblink has similarly waived any challenge
    to the payment conditions on the licenses by the passage of time.

[^26]: Weblink Request at 4 (citing *James Beam Distilling Company v.
    Georgia*, 501 U.S. 529 (1991) and *Graceba*, 115 F3d 1038).

[^27]: *Community Teleplay,* 13 FCC Rcd at 12428-29 ¶ 5.

[^28]: *Community Teleplay*, 13 FCC Rcd at 12429 ¶ 6.

[^29]: 47 C.F.R. § 1.41.

[^30]: *Community Teleplay,* 13 FCC Rcd at 12428-29 ¶ 5.

[^31]: *Id.*

[^32]: *Community Teleplay,* 13 FCC Rcd at 12429 ¶ 6.

[^33]: *James Beam Distilling*, 501 U.S. 529.

[^34]: *James Beam Distilling,* 501 U.S. at 544.

[^35]: *Id.*

[^36]: Weblink Request at 4 (citing *Melody Music v. FCC*, 345 F2d 730
    (D.C. Cir. 1965)).

[^37]: In the Matter of Amendment of Part 95 of the Commission\'s Rules
    to Provide Regulatory Flexibility in the 218--219 MHz Service,
    *Second Order on Reconsideration of the Report and Order and
    Memorandum Opinion and Order*, WT Docket No. 98--169, FCC No.
    00--411 at ¶ 44 (rel. December 13, 2000) (\"*Second Order on
    Reconsideratio*n\'\').

[^38]: *Id.*

[^39]: *Id.*

[^40]: *Id.*

[^41]: *Id.*

[^42]: *Community Teleplay,* 13 FCC Rcd at 12429 ¶ 6.