**DA 99-667**

April 7, 1999

Mark J. O\'Connor, Esq.

Piper & Marbury L.L.P.

1200 19th Street, N.W.

Washington, DC 20036-2430

Dear Mr. O\'Connor:

This letter is in response to a request filed on behalf of Omnipoint
Corporation (\"Omnipoint\")[^1] for a limited waiver of Section
24.710(a) of the Commission\'s rules.[^2] Section 24.710(a) prohibits an
auction applicant from winning more than 98 C and F block broadband
personal communications services (\"PCS\") licenses. The rule requires
an applicant that is the high bidder for more than 98 C and F block
licenses to withdraw its bids for a sufficient number of licenses to
comply with the 98-license limitation.

Omnipoint, a bidder in Auction No. 22,[^3] requests a waiver of Section
24.710(a) for Auction No. 22[^4] in the following two ways. First,
Omnipoint asks that the 98-license limit be raised to 112 for all
Auction No. 22 bidders to reflect the increase in the total number of C
block licenses that resulted from the disaggregation of some C block
licenses pursuant to the Commission\'s *C Block Restructuring
Orders*.[^5] Second, Omnipoint asks that C block spectrum returned to
the Commission pursuant to the pure amnesty payment option not count in
the 112-license limit for Auction No. 22 bidders.[^6] Omnipoint argues
that its request meets one of the two alternative standards governing
grant of waiver requests, i.e, that the underlying purpose of the rule
would not be served or would be frustrated by the rule\'s application to
Auction No. 22, and that a grant of the waiver would be in the

public interest.[^7] We agree.

In 1994, the Commission designated broadband PCS licenses in the C and F
blocks as \"entrepreneurs\' blocks.\"[^8] To achieve a fair distribution
of licenses within these two blocks, the Commission decided that no
single entity could win more than 98 C and F block licenses, which
represented approximately 10 percent of the then-total of 986 C and F
block licenses.[^9] The Commission determined that this limit would
ensure that at least 10 winning bidders would enjoy the benefits of the
entrepreneurs\' blocks, while still allowing bidders to pursue
aggregation strategies that included large numbers of licenses and
extensive geographic coverage.[^10]

Subsequently, in the *C Block Restructuring Orders*, the Commission
allowed C block licensees the option of disaggregating 15 MHz of their
30 MHz C block licenses and returning this spectrum to the Commission
for future auction.[^11] The exercise of this option added 134 C block
licenses to the original C and F block license total, bringing the
current total to 1,120 C and F block licenses.[^12] The Commission also
allowed C block licensees to return spectrum to the Commission under a
\"pure amnesty\" option while maintaining their eligibility to reacquire
this returned spectrum in future

auctions or through other means.[^13] The Commission did not address
whether or not spectrum returned pursuant to the pure amnesty option
would continue to count against licensees\' 98-license limit.

We find it would be in the public interest to grant a waiver to all
Auction 22 bidders. Allowing bidders to win 10 percent of the new number
of C and F block licenses would result in a 112-license limit. We find
Omnipoint\'s arguments persuasive and believe that the underlying
purpose of Section 24.710(a) would not be served by adherence to the
98-license limit for bidders in Auction No. 22. There has been a wide
distribution of C and F block licenses from Auctions No. 5, 10, and 11.
In addition, because the number of C and F block licenses in existence
now totals 1,120, an increased limit of 112 C and F block licenses
applicable to bidders in Auction No. 22 would maintain the limit at the
10 percent of total licenses envisioned by the Commission.

We also find it would be in the public interest not to count against the
license limit those licenses returned pursuant to the \"amnesty
option.\"[^14] The Commission established the 98-license limit prior to
its decision to allow C block licensees to return spectrum pursuant to
the *C Block Restructuring Orders*. We agree with Omnipoint that C block
spectrum returned under the pure amnesty option should not count against
Auction No. 22 bidders\' C and F block license limit, because such
licenses will be counted against the license limits of the bidders that
ultimately acquire the licenses at auction.

Accordingly, we grant Omnipoint\'s request for a limited waiver of
Section 24.710(a) for bidders in Auction No. 22. Bidders in Auction No.
22 will be subject to a 112-license limit. We clarify that C and F block
licenses won by Auction No. 22 bidders at prior auctions count toward
this limit, except that C block spectrum returned to the Commission
pursuant to the pure amnesty option does not count toward the limit.

This action is taken pursuant to delegated authority under Section 0.331
of the Commission\'s rules. 47 C.F.R. § 0.331.

Sincerely,

Amy J. Zoslov

Chief, Auctions and Industry Analysis Division

Wireless Telecommunications Bureau

[^1]: Letter from Mark J. O\'Connor, Counsel for Omnipoint Corporation,
    to Amy J. Zoslov, Chief, and Mark Bollinger, Deputy Chief, Auctions
    & Industry Analysis Division, Wireless Telecommunications Bureau,
    Federal Communications Commission (March 31, 1999) (\"*Waiver
    Request*\").

[^2]: 47 C.F.R. § 24.710(a).

[^3]: Auction No. 22 began on March 23, 1999.

[^4]: *Waiver Request* at 3, 4.

[^5]: *See* Amendment of the Commission\'s Rules Regarding Installment
    Payment Financing For Personal Communications Services (PCS)
    Licensees, WT Docket No. 97-82, *Second Report and Order and Further
    Notice of Proposed Rule Making*, 12 FCC Rcd 16436 (1997) (\"*C Block
    Second Report and Order*\"); Amendment of the Commission\'s Rules
    Regarding Installment Payment Financing For Personal Communications
    Services (PCS) Licensees, WT Docket No. 97-82, *Order on
    Reconsideration of the Second Report and Order*, 13 FCC Rcd 8345
    (1998) (\"*C Block Reconsideration Order*\") (collectively \"*C
    Block Restructuring Orders*\").

[^6]: *Waiver Request* at 1-2.

[^7]: *See* 47 C.F.R. § 1.925; *Waiver Request* at 1-2. Omnipoint relies
    on Section 24.819 of the Commission\'s rules, 47 C.F.R. § 24.819. On
    February 12, 1999, however, Section 24.819 was superseded by Section
    1.925, which contains essentially the same standard for granting a
    waiver. *See* 63 Fed. Reg. 68,904 (December 14, 1998).

[^8]: *See* 47 C.F.R. § 24.709(a); Implementation of Section 309(j) of
    the Communications Act \-- Competitive Bidding, FCC 94-178, *Fifth
    Report and Order*, 9 FCC Rcd 5532, 5585 ¶ 121 (1994) (\"*Fifth
    Report and Order*\").

[^9]: *Fifth Report and Order* at 5606 ¶ 170.

[^10]: *Id.* The 98-license limit applies only to licenses won at
    auction; it is not an ownership cap on the total number of licenses
    that may be obtained post-auction. *Id.* at 5606 ¶ 171. *See*
    Implementation of Section 309(j) of the Communications Act \--
    Competitive Bidding, FCC 94-285, *Fifth Memorandum Opinion and
    Order*, 10 FCC Rcd 403, 464-65 ¶¶ 114-16 (1994) (retaining the
    98-license limit); Amendment of Parts 20 and 24 of the Commission\'s
    rules \-- Broadband PCS Competitive Bidding and the Commercial
    Mobile Radio Service Spectrum Cap, FCC 96-278, *Report and Order*,
    11 FCC Rcd 7824, 7895 ¶¶ 149-50 (1996) (declining to modify the 10
    percent license limit rule).

[^11]: *C Block Second Report and Order*, 12 FCC Rcd at 16455-56 ¶¶
    38-39; *C Block Reconsideration Order*, 13 FCC Rcd at 8366-67 ¶ 49.

[^12]: *See* Wireless Telecommunications Bureau Announces Broadband
    Personal Communications Services C Block Elections, *Public Notice*,
    DA 98-1168 (rel. June 16, 1998); Erratum to Wireless Bureau
    Announces Broadband Personal Communications Services C Block
    Elections (rel. June 18, 1998); Wireless Telecommunications Bureau
    Announces Broadband Personal Communications Services (PCS) C Block
    Unconditional Elections, *Public Notice*, DA 98-1340 (rel. July 2,
    1998).

[^13]: *C Block Second Report and Order*, 12 FCC Rcd at 16462-64 ¶¶
    53-58; *C Block Reconsideration Order*, 13 FCC Rcd at 8357-59 *¶¶*
    31-35.

[^14]: *Waiver Request* at 5. Omnipoint appears to be referring to the
    pure amnesty option. *Id.*