DA 04-3058

F. Scott Fistel, Esq.

Law Office of Fistel & Associates, P.A.

103 Northeast Fourth Street

Fort Lauderdale, Florida 33301

> Re: Ideas for Business, Inc. \-- Request for Waiver of Short-Form
> Deadline for FM Broadcast Auction No. 37

Dear Mr. Fistel:

This letter responds to your August 31, 2004 correspondence (sent via
facsimile) on behalf of Ideas for Business, Inc., d/b/a Florida Media
Group ("Ideas for Business") requesting a waiver of the deadline for
filing a short-form application (FCC Form 175) to participate in Auction
No. 37.[^1] You ask the Federal Communications Commission ("Commission")
to accept Ideas for Business's short-form application, even though its
application was not properly filed with the Commission by the August 6,
2004 short-form filing deadline.[^2] You claim that Ideas for Business
missed the filing deadline because your associate, Samuel Rogatinsky,
thought he had submitted the short-form application to the Commission on
the evening of August 5^th^, but there was a break in the transmission
of the information. For the reasons set forth below, we deny your waiver
request.

To obtain a waiver of the Commission's competitive bidding rules,[^3] an
applicant must show: (i) that the underlying purpose of the rule would
not be served, or would be frustrated, by its application in this
particular case, and that the grant of the requested waiver would be in
the public interest; or (ii) that the unique facts and circumstances of
the particular case render application of the rule inequitable, unduly
burdensome, or otherwise contrary to the public interest, or that the
applicant has no reasonable alternative.[^4]

The August 6, 2004, 6:00 PM ET short-form deadline was announced in the
*Auction No. 37 Procedures Public* Notice, which was released by the
Media and Wireless Telecommunications Bureaus (the "Bureaus") on June
10, 2004.[^5] The Bureaus also announced in the *Auction No. 37
Procedures Public Notice* that applications could be filed at any time
beginning on July 22, 2004 until the August 6, 2004 deadline.[^6]
Potential applicants were also warned that late applications would not
be accepted.[^7] Several measures were taken to facilitate the filing of
applications. As with other auctions, applicants were able to submit
applications via the Internet 24 hours per day; a public auctions
seminar was held during which, among other things, use of the FCC
Automated Auction System was explained and staff was made available for
questions; and the FCC Technical Support Hotline was available to
provide prospective applicants with assistance in the use of FCC
software.[^8]

You contend that your associate had informed you that he had completed a
short-form application and that he believed that he had submitted that
application to the Commission. In addition, you state that when your
associate attempted to submit the short-form application, his computer
logged out of the FCC system. You also state that your law firm had
never logged into the FCC's auction application web site prior to the
evening of August 5, 2004, the day prior to the filing deadline. The
waiver request also states that your associate obtained an FCC
registration number ("FRN").[^9]

Based on the record before us, you have not satisfied the Commission's
criteria for granting a waiver of the short-form application deadline.
The Bureaus set the deadline pursuant to Section 1.2105(a)(1).[^10] The
rule's underlying purpose is to establish a fixed date by which all
applicants interested in participating in the auction must submit
relevant information necessary to establish applicants' qualifications
to participate in an auction.[^11] Among other things, using a fixed
date also provides the Commission with sufficient time to review
applications prior to the auction and identifies the pool of potential
bidders. You have not shown that enforcing the deadline in this case
would frustrate these purposes, or would not serve them. The
Commission's rules are best served by applying auction deadlines in a
fair and consistent manner.

In addition, you have not demonstrated unique facts or circumstances
that merit granting a waiver in this case. You have failed to provide
any particular facts or other evidence that would demonstrate that you
were prevented from timely submitting a short-form application by the
August 6, 2004, 6:00 PM deadline. You have not alleged any circumstances
that are different from those that applied to all applicants to
participate in Auction No. 37. The Commission's rules and public notices
provided comprehensive notice of filing procedures for Auction No. 37,
including detailed instructions on the information required to be
included in the attachments to the Form 175.[^12] Moreover, the
Commission specifically cautioned applicants to file early and allow
adequate time for filing their applications and that late applications
would not be accepted.[^13] The Commission's records indicate that that
an application process was initiated on behalf of Ideas for Business on
August 5, 2004, 9:09 PM and discontinued later that evening at 10:16 PM
without submission of the application.

The Commission's electronic Form 175 includes a warning on the same page
as the "SUBMIT Application" button that the Form 175 is considered
submitted when the button is clicked *and* the applicant receives a
confirmation message.[^14] You have not stated that Ideas for Business
received a submission confirmation page, nor do the Commission's records
indicate that Ideas for Business received a submission confirmation
page. Furthermore, the Commission's records show that Ideas for Business
did not receive an FCC Account number, which is automatically generated
upon submission of a Form 175 application and is printed on the
confirmation page. Applicants are responsible for ensuring that their
computer systems are adequate to connect and interface with the
Commission's filing software.[^15] In addition, applicants are
responsible for ensuring that the filings they transmit are received by
the Commission.[^16] The Commission will not be responsible for your
associate's failure to confirm that the application had been
successfully submitted to the FCC after his attempt to submit did not
result in receipt of a submission confirmation page as instructed by the
Commission's Public Notice and the electronic Form 175.

Accordingly, your request for a waiver of the short-form application
filing deadline for Auction No. 37 is denied. This action is taken under
authority delegated pursuant to Section 0.331 of the Commission's
rules.[^17]

Sincerely,

Gary D. Michaels

Deputy Chief, Auctions and Spectrum Access Division

Wireless Telecommunications Bureau

[^1]: Facsimile correspondence from F. Scott Fistel, Esq. to Lisa
    Scanlan, Asst. Chief, Audio Division, Mass Media Bureau dated August
    31, 2003 ("Waiver Request").

[^2]: *Id.* The short-form deadline was announced in a public notice
    released by the Media and Wireless Telecommunications Bureaus on
    June 10, 2004. "Auction of FM Broadcast Construction Permits
    Scheduled For November 3, 2004," *Public Notice*, DA 04-1699 at 20
    (Jun. 10, 2004) ("*Auction No. 37 Procedures Public Notice*"). Among
    other things, the *Auction No. 37 Procedures Public Notice* also
    described procedures and provided instructions for filing short-form
    applications. *Id.*; *see also* 47 C.F.R. § 1.2105(a)(1)(i)
    (short-forms due on date specified by public notice).

[^3]: ^?^ The Commission's competitive bidding rules are set forth at 47
    C.F.R. § 1.2101 *et seq*.

[^4]: 47 C.F.R. § 1.925 (standard for rule waiver).

[^5]: *Auction No. 37 Procedures Public Notice* at 11, 20.

[^6]: *Id*.

[^7]: *Id.*

[^8]: *Auction No. 37 Procedures Public Notice* at 19-20, C-3. Potential
    bidders who were unable to attend the auction seminar in person
    could watch and listen to the seminar via a live webcast conducted
    by the Commission or could subsequently access an audio/visual
    record of the seminar at the audio/visual archives page of the
    Commission's website. *Id.* at 20.

[^9]: Waiver Request at 1-2. An FRN is a number assigned to a business
    or individual that seeks to conduct business with the Commission. A
    filer, licensee, certificate holder, or any entity sending payments
    to the Commission is required to have an FRN. Receipt of an FRN is
    not evidence of a complete short-form application to participate in
    an auction.

[^10]: ^?^ 47 C.F.R. § 1.2105(a)(1).

[^11]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding*, Second Report and Order*, 9 FCC Rcd 2348,
    ¶¶ 161-68 (1994).

[^12]: *See* *Auction No. 37 Procedures Public Notice* at 14-19.

[^13]: *Id*. at 20.

[^14]: *See* *id.* at C-3 ("Applicant must press the **SUBMIT
    Application** button on the Submission page to successfully submit
    their FCC Form 175. Pressing **SUBMIT Application** produces a
    *Submission Confirmation* page showing the assigned FCC Account
    Number." (Boldface and italics in original.) *See also,* FCC
    Auctions Form 175 Help,
    \<<https://auctionfiling.fcc.gov/form175/help.htm>\> ("When the
    application has been successfully submitted to the FCC, the system
    displays the Submission Confirmation page, which shows the FCC
    Account Number assigned to your application. The FCC Account Number
    is a ten-digit number that the Commission will use to identify and
    track applications.").

    \`

[^15]: *See* Letter to Mr. Jim Didier, Black Hills Broadcasting, L.L.C.
    from Amy J. Zoslov, Chief, Auctions and Industry Analysis Division,
    Wireless Telecommunications Bureau, Federal Communications
    Commission, 14 FCC Rcd 15386 (1999).

[^16]: Documents are considered to be filed with the Commission only
    upon their receipt. *See* 47 C.F.R. § 1.7.

[^17]: 47 C.F.R. § 0.331.