Bernard E. Klein

761 E Coco Plum Circle #6

Plantation, FL 33324-3744

> Re: Sonar Radio Corporation Application to Participate in Auction 73
> --
>
> [Request for Waiver of Upfront Payment
> Deadline]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Dear Mr. Klein:

This letter responds to a submission made by Sonar Radio Corporation
("Sonar") on January 4, 2008 in connection with its short-form
application to participate in the Commission's upcoming auction of 700
MHz Band licenses (Auction 73).[^1] To the extent that submission can be
construed as a request for waiver of the upfront payment deadline for
Auction 73, it is denied.

Sonar filed its Application initially by December 3, 2007, which was the
deadline for all interested parties to file an application to
participate in Auction 73.[^2] Sonar's Application, as initially
submitted, was determined to be incomplete.[^3] Following discussions
with Commission staff concerning questions raised by its Application,
Sonar revised and resubmitted its application on January 4, 2008, prior
to the 6:00 PM deadline for making corrections to incomplete
applications.[^4]

The deadline for making upfront payments was 6:00 PM on January 4, 2008.
Pursuant to Section 1.2106(a) of its rules,[^5] on October 5, 2007, the
Commission established a deadline of December 28, 2007 for submission of
upfront payments by applicants seeking to participate in Auction 73.[^6]
That deadline was subsequently extended to January 4, 2008, providing
all applicants, including Sonar, with additional time to undertake the
necessary preparations for the auction and make the required
payment.[^7] Section 1.2106(c) provides that if an applicant fails to
submit an upfront payment by the announced deadline, it will be
ineligible to bid.[^8]

Sonar's Application, as resubmitted on January 4, 2008, states: "On Jan
4, 2008 at 5:15 PM Klein learned that the Trustee has filed to dismiss
or conclude Sonar\'s Chapter 7 case, which will allow Sonar to make its
deposit and bid. Therefore, we seek (above) a waiver of the 1/4/2008
6:00 PM\[.\]" The Application also contains an attachment entitled
"Email to Trustee Dec 29, 2007." The attachment is a copy of an email
from you directed to another individual. In that email, which is dated
December 28, 2007, you express your understanding that Sonar lacks
appropriate authorization from the U.S. Trustee or the Bankruptcy Court
to participate in the auction, seeks authorization for Sonar to
participate in the auction, and requests immediate dismissal of Sonar's
Chapter 7 bankruptcy proceeding. The Application and the attachment
contain no other explanation of the circumstances justifying a waiver.
Sonar's Application contains no description of any efforts it made other
than its December 28^th^ email to obtain apparently necessary
authorizations or approvals in order to submit an upfront payment by the
deadline of 6:00 PM ET on January 4, 2008.

In light of the public interest in predictable and consistent
application of Commission rules and procedures, we deny the requested
waiver. Pursuant to Section 1.925, the Commission may grant a waiver of
its rules if (i) it is shown that the underlying purpose of the rule
would not be served or would be frustrated by application to the instant
case, and that a grant of the requested waiver would be in the public
interest; or (ii) in view of the unique or unusual factual circumstances
of the instant case, application of the rules would be inequitable,
unduly burdensome or contrary to the public interest, or that the
applicant has no reasonable alternative.[^9] As discussed below,
applying the deadline in the instant case serves the relevant rule's
purpose of maintaining the integrity of the auction process and the
auction schedule, and the facts presented do not demonstrate that
applying the deadline is inequitable or contrary to the public interest,
or that Sonar had no reasonable alternative by which it could have
complied with the rule.

The Commission set the Auction 73 upfront payment deadline as one in a
series of pre-auction deadlines established to enable the auction to
begin before the statutorily-mandated auction start date of January 28,
2008.[^10] The amount of an upfront payment determines each applicant's
initial bidding eligibility in the auction.[^11] Following the upfront
payment deadline, the Commission completes review of applications and
announces in advance of the auction which applicants are qualified to
bid.[^12] The upfront payment deadline must be set so as to allow the
timely announcement of qualified bidders, both to enable qualified
bidders sufficient time to finalize their bidding plans and to provide
the Commission with sufficient time to complete preparations for a
timely commencement of the auction -- in this auction, before January
28, 2008, as mandated by statute.

You have not provided information in Sonar's application or elsewhere
that would meet the Commission's standard for waiver of the requirement
that applicants timely submit upfront payments. With respect to the
upfront payment deadline in particular, the Commission has waived the
deadline for certain applicants only in extremely limited circumstances,
not present here.[^13] Sonar has not come close to demonstrating that
its particular circumstances merit waiving the upfront deadline. The
upfront deadline is not simply a matter of administrative convenience.
Among other purposes, timely submission of an upfront payment assists in
establishing that an applicant is financially qualified to participate
in an auction.[^14] As discussed above, waiving the deadline to afford
an applicant additional time to make an upfront payment undermines the
rule's purpose by disrupting the auction preparations of the Commission
and qualified bidders and potentially delaying the entire auction. In
addition, waiving the deadline for any single applicant inherently
raises questions of fairness to other applicants who met the deadline.
The

Commission has determined that a policy of strict adherence to payment
deadlines is necessary to serve the public interests of integrity,
fairness, and efficiency of the auction process.[^15] In light of the
public interest in maintaining the deadline and statutorily-mandated
auction schedule and the absence of a particularized showing of extreme
circumstances here, we deny Sonar's request for waiver of the upfront
payment deadline.

This action is taken under delegated authority pursuant to Section 0.331
of the Commission's rules.[^16]

Sincerely,

Margaret W. Wiener, Chief

Auctions and Spectrum Access Division

Wireless Telecommunications Bureau

[^1]: FCC Form 175 application of Sonar Radio Corporation to Participate
    in Auction 73, as resubmitted on January 4, 2008 ("Application").

[^2]: *See* Auction of 700 MHz Band Licenses Scheduled for January 24,
    2008; Notice and Filing Requirements, Minimum Opening Bids, Upfront
    Payments and Other Procedures for Auction 73 and 76, *Public
    Notice*, 22 FCC Rcd 18,141 (2007) ("*Auction 73/76 Procedures Public
    Notice*").

[^3]: *See* "Auction of 700 MHz Band Licenses, Upfront Payment Deadline
    Rescheduled for January 4, 2008; Mock Auction Rescheduled; Status of
    Short-Form Applications to Participate in Auction 73," *Public
    Notice*, DA 07-5030 (rel. Dec. 18, 2007).

[^4]: *See* Application.

[^5]: *See* 47 C.F.R. §1.2106(a).

[^6]: Auction of 700 MHz Band Licenses Scheduled for January 24, 2008;
    Notice and Filing Requirements, Minimum Opening Bids, Upfront
    Payments and Other Procedures for Auction 73 and 76, *Public
    Notice*, 22 FCC Rcd 18,141 ("*Auction 73/76 Procedures Public
    Notice*").

[^7]: Auction of 700 MHz Band Licenses; Upfront Payment Deadline
    Rescheduled For January 4, 2008; Mock Auction Rescheduled; Status Of
    Short-Form Applications to Participate in Auction 73, *Public
    Notice*, DA 07-5030 (rel. Dec 18, 2007) ("*Auction 73 Status Public
    Notice*").

[^8]: *See* 47 C.F.R. § 1.2106(c).

[^9]: 47 C.F.R. § 1.925.

[^10]: *See Auction 73/76 Procedures Public Notice*, 22 FCC Rcd 18,141
    at ¶ 10; *see also* 47 U.S.C. § 309(j)(15)(v).

[^11]: *See* *Auction 73/76 Procedures Public Notice*, 22 FCC Rcd
    18,141, 18,175-76 at ¶¶ 122-125

[^12]: *Id.,* 21 FCC Rcd at 4598 ¶ 123.

[^13]: *See, e.g.*, Letter to Patrick Shannon, Esq. from Margaret W.
    Wiener, Chief, Auctions and Industry Analysis Division, Wireless
    Telecommunications Bureau, DA 03-1944, *Letter*, 18 FCC Rcd 11,552
    (2003) (granting waiver request where applicant made repeated
    attempts prior to deadline to submit its funds after funds initially
    were returned, including contacting the Commission prior to deadline
    to seek guidance); Letter to Sara F. Leibman, Esq., from Margaret W.
    Wiener, Chief, Auctions and Industry Analysis Division, Wireless
    Telecommunications Bureau, DA 03-1581, *Letter*, 18 FCC Rcd 9721
    (2003) (granting waiver request where notwithstanding efforts by
    applicant's agent to monitor transfer process, funds submitted prior
    to the deadline were returned by the Commission's bank shortly
    before deadline); Letter to Ms. Lynn R. Charytan from Margaret W.
    Wiener, Chief, Auctions and Industry Analysis Division, Wireless
    Telecommunications Bureau, DA 00-2760, *Letter*, 15 FCC Rcd 24,540
    (2000) (granting waiver request where bank employee's last minute
    action prior to deadline interfered with submission of a portion of
    upfront payment, notwithstanding repeated efforts by applicant to
    effect submission).

[^14]: *See* Implementation of Section 309(j) of the Communications
    Act - Competitive Bidding, PP Docket No. 93-253, *Second Report and
    Order*, 9 FCC Rcd 2348, 2377 ¶ 169 (1994) (\"*Competitive Bidding
    Second Report and Order*\"); *Delta Radio, Inc. v. FCC*, 387 F.3d
    897, 899 (D.C. Cir. 2004) (affirming Commission denial of request
    for waiver of final payment deadline).

[^15]: *See Delta Radio*, 387 F.3d at 901. "Entering the auction
    unprepared to pay on schedule is precisely the kind of conduct the
    FCC rules are designed to deter." *Id.* at 903.

[^16]: 47 C.F.R. § 0.331.