**Before the**

#########  Federal Communications Commission

#########  Washington, D.C. 20554

In the Matter of )

)

Metro-Trak, L.L.C. ) File No. 0000007442

)

For Multilateration Location and )

Monitoring Service Auction License - )

BEA 107C, Minneapolis-St. Paul, MN-WI-IA )

ORDER

Adopted: August 2, 2000 Released: August 3, 2000

By the Chief, Commercial Wireless Division, Wireless Telecommunications
Bureau:

I. Introduction

1.  This order sets forth the default payment obligations for
    Metro-Trak, L.L.C. (Metro-Trak) resulting from its failure to timely
    remit the total required payment on a license for which it was the
    winning bidder in the Multilateration Location and Monitoring
    Service (LMS) auction, Auction No. 21. For the reasons set forth
    herein, we find that Metro-Trak is in default on its full payment
    obligations with respect to the LMS Block C license in Basic
    Economic Area (BEA) 107C, Minneapolis-St. Paul, MN-WI-IA.

II\. Background

2\. On March 5, 1999, the Commission completed its auction of 528
multilateration LMS licenses.[^1] Metro-Trak was listed as the winning
bidder of Markets BEA 107C, Minneapolis‑St. Paul, MN‑WI‑IA, and BEA
164C, Sacramento-Yolo, CA. After a preliminary review of submitted
long-form applications, a number of applications, including
Metro-Trak\'s, were accepted for filing.[^2] On June 8, 1999, the Bureau
announced that it was prepared to grant the applications that had been
accepted for filing upon the full and timely payment of the remaining
balance of each applicant\'s winning bids.[^3]

1.  The Bureau subsequently issued an *Erratum* on June 16, 1999, which
    rescinded its decision to include Metro-Trak's application for
    Market BEA 107C, Minneapolis-St. Paul, MN-WI-IA as ready to
    grant.[^4] The Bureau rescinded this decision because Hennepin
    County, Minnesota had filed a request to obtain an LMS license for
    Market BEA 107C, pursuant to section 337 of the Communications Act,
    as amended, and this request was still pending.[^5] On November 18,
    1999, the Bureau denied Hennepin County's Petition, and dismissed
    its associated application.[^6]

4\. On May 26, 2000, the Bureau released a Public Notice stating that
the Bureau was ready to grant the license for BEA 107C, Minneapolis-St.
Paul, MN-WI-IA to Metro-Trak.[^7] The Public Notice stated that payment
of the remaining balance must be received from Metro-Trak, L.L.C. by
June 12, 2000.[^8] The Public Notice also stated that if Metro-Trak
failed to pay its remaining balance by June 12, 2000, it would be
allowed to make payment within ten days after the payment deadline
(*i.e.* June 26, 2000), provided that it also pays a late fee equal to
five percent of the amount due. Moreover, the Public Notice stated that,
pursuant to section 1.2109(a), if Metro-Trak failed to pay the balance
of its winning bids by the late payment deadline of June 26, 2000, it
would be considered in default on its licenses and subject to the
applicable default payments.[^9] Metro-Trak did not submit full and
timely payment of the remaining balance and, thereby, defaulted on its
obligation under the Commission's rules. [^10]

III\. Discussion

III. 5\. Under the Commission\'s rules, a winning bidder that fails to
     timely remit the required full payment is deemed to have defaulted
     on its auction payment obligations.[^11] The purpose of the default
     payment provisions[^12] is to assure that the winning bidder is
     obligated to pay the full amount of its winning bid (less any
     mitigation of damages arising from a subsequent auction of the
     spectrum) even if the winning bidder defaults or is determined to
     be disqualified and is never granted a license. The winning
     bidder\'s contractual obligation to pay the winning bid thus
     becomes fixed and established at the close of the subsequent
     auction.[^13] A winning bidder that defaults on its full payment
     obligation will, therefore, be required to make the Commission
     whole for the amount of the winning bid, subject to any mitigation
     of damages produced by the subsequent auction of the license (or
     licenses) for the same spectrum.

     6\. Because the license for market BEA 107C will be included in a
     future auction, we cannot at this time determine the full amount of
     the default payment owed by Metro-Trak. The Commission has stated
     that in such instances it will assess an initial default deposit of
     between three (3) and twenty (20) percent of the defaulted bid
     price until the full amount of the default payment can be
     determined.[^14] As the Commission noted in a previous case, three
     percent is the minimum amount that a defaulting winning bidder like
     Metro-Trak could owe even under the most favorable
     circumstances.[^15]

     7\. Therefore, pursuant to Commission practice, we will assess an
     initial default payment of \$9,926.00, which is three percent of
     Metro-Trak's net winning defaulted bid of \$330,850.00 for the LMS
     license in BEA 107C. [^16] Metro-Trak's amount on deposit for
     upfront and down payments will be applied to this initial default
     payment (BEA 107C). [^17] If additional payment is required after
     BEA 107C is re-auctioned, a second order will be issued to assess
     the amount due.

     **IV. Ordering Clauses**

     8\. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and
     309 of the Communications Act, as amended, 47 U.S.C. §§ 154(i),
     309, and sections 0.331 and 1.2104 of the Commission\'s Rules, 47
     C.F.R. §§ 0.331, 1.2104, the Form 175 application for Market BEA
     107C, Minneapolis - St. Paul, MN-WI-IA, filed by Metro-Trak, L.L.C.
     IS DISMISSED.

     9\. IT IS FURTHER ORDERED that, pursuant to section 4(i) of the
     Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
     sections 0.331 and 1.2104(g) of the Commission's rules, 47 C.F.R.
     §§ 0.331, 1.2104(g), Metro-Trak, L.L.C. IS ASSESSED an initial
     default payment of \$9,926.00.

10\. IT IS FURTHER ORDERED that, pursuant to section 0.331 of the
Commission's Rules, 47 C.F.R. § 0.331, Metro-Trak, L.L.C.'s amount on
deposit, totaling \$89,100.00, will be applied to cover the default
payment of \$9,926.00.

11\. IT IS FURTHER ORDERED that, pursuant to sections 0.331, 1.2104(g),
and 24.704, 47 C.F.R. §§ 0.331, 1.2104(g), 24.704, Metro-Trak, L.L.C.
will be subject to the balance of the payment once the market for BEA
107C, Minneapolis - St. Paul, MN-WI-IA, is re-auctioned and the full
default payment is determined.

# 

#  Federal Communications Commission

#  William W. Kunze, Chief 

#  Commercial Wireless Division

#  Wireless Telecommunications Bureau 

## APPENDIX A:

## 

## DEFAULT CALCULATIONS ATTACHMENT

**Metro-Trak, LLC, Auction No. 21:**

**Market [BEA107]{.underline} , Channel Block [\_C\_]{.underline},**

##### \*\*\*Initial Default Deposit

Net Winning Bid \$ 330,850.00

Initial Default Penalty \$ 9,926.00

(3% of the net winning bid)

[^1]: *See* Location and Monitoring Service Auction Closes: Winning
    Bidders in the Auction of 528 Multilateration Licenses I the
    Location and Monitoring Service, *Public Notice*, 14 FCC Rcd. 3754
    (WTB: 1999).

[^2]: *See* Location and Monitoring Service Applications Accepted for
    Filing, *Public Notice*, 14 FCC Rcd. 7813 (WTB: 1999).

[^3]: *See* Wireless Telecommunications Bureau Announces It Is Prepared
    To Grant Location and Monitoring Service Licenses After Payment is
    Made, *Public Notice*, 14 FCC Rcd. 9166 (WTB: 1999).

[^4]: *See* Erratum to Location and Monitoring Service Public Notice,
    *Public Notice*, 14 FCC Rcd. 9657 (WTB: 1999).

[^5]: *See* Hennepin County Application for Location and Monitoring
    Service License and Waiver under Section 337 of the Communications
    Act, *Public Notice*, 14 FCC Rcd. 2058 (1999).

[^6]: *See* In re Application of Hennepin County, *Order*, 14 FCC Rcd.
    19418 (1999).

[^7]: *See* Wireless Telecommunications Bureau Announces It Is Prepared
    To Grant Location and Monitoring Service License For Market BEA 107C
    After Payment is Made[,]{.smallcaps} *Public Notice*, 15 FCC Rcd.
    9139 (2000).

[^8]: *Id*.

[^9]: *Id*.

[^10]: 47 C.F.R. § 1.2109.

[^11]: 47 C.F.R. § 1.2109(c); s*ee also* National Telecom PCS, Inc.,
    *Memorandum Opinion and Order*, 12 FCC Rcd. 10163, 10171-72 (¶ 15)
    (1997); Amendment of Part 1 of the Commission\'s Rules \--
    Competitive Bidding Procedures, WT Docket No. 97-82, *Third Report
    and Order and Second Further Notice of Proposed Rule Making,* 13 FCC
    Rcd. 374, 434 (¶ 107 )(1997).

[^12]: *See* Request for Waiver of Section 1.2104(g) of the Commission's
    Rules Filed by Grand Connectivity L.L.C., *Order,* 14 FCC Rcd.
    13943, 13945 (¶ 5) (WTB: 1999) (*Grand Connectivity Order*).

[^13]: *See* Amendment of the Commission\'s Rules Regarding Installment
    Payment Financing For Personal Commun-ications (PCS) Licensees,
    Amendment of Part 1 of the Commission\'s Rules \-- Competitive
    Bidding Procedures, WT Docket No. 97-82, *Second Order on
    Reconsideration of the Second Report and Order*, 14 FCC Rcd. 6571,
    6581, n.66 (¶ 17)(1999).

[^14]: *Grand Connectivity Order,* 14 FCC Rcd. at 13946 (¶ 6).

[^15]: Mountain Solutions Ltd., Inc., Emergency Petition for Waiver of
    Section 24.711(a)(2) of the Commission's Rules Regarding Various BTA
    Markets in the Broadband Personal Communications Services (PCS) C
    Block Auction, *Memorandum Opinion and Order*, 13 FCC Rcd. 21983,
    21997 (¶ 25)(1998).

[^16]: *Id*.; *see also* C.H. PCS, Inc., *Order*, 14 FCC Rcd. 4131, 4133
    (¶ 4)(WTB: 1999).

[^17]: We are simultaneously releasing an order denying Metro-Trak's
    request for an extension of payment deadline for LMS Market BEA
    164C, Sacramento-Yolo, CA. *See* In the Matter of Metro-Trak, LLC,
    Request for Extension of Final Payment Deadline for Multilateration
    location and Monitoring Service Auction License - BEA 164C,
    Sacramento-Yolo, CA, *Order*, DA 00-1716 (WTB/CWD: rel. Aug. 3,
    2000). Metro-Trak has on deposit at the Commission \$89,100, which
    consists of Metro-Trak's upfront and down payments for LMS Markets
    BEA 164C, Sacramento-Yolo, CA and Market BEA 107C, Minneapolis-St.
    Paul, MN-WI-IA. Therefore, we subtract the 3% default payment amount
    of 9,926.00, for Market BEA 107C, Minneapolis-St. Paul, MN-WI-IA
    from the \$89,100 on deposit. Simultaneously, we are subtracting the
    3% , in the amount of \$3,471.00, for Market BEA 164C,
    Sacramento-Yolo, CA from the \$89,100 on deposit.