**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | FCC Account No. 0261307159   |
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| Application of                   | ) |                              |
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| **PASS WORD, INC.**              | * |                              |
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| To Participate in the 929/931    | * |                              |
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| Paging Auction (Auction No. 26)  | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: February 23, 2000 Released: March 21, 2000**

By the Chief, Auctions and Industry Analysis Division

Wireless Telecommunications Bureau

1.  The Auctions and Industry Analysis Division ("Division") has before
    it an Emergency Petition for Reconsideration[^1] filed by Cook
    Telecom, Inc. ("Cook") seeking recission of a rule waiver granted to
    Pass Word, Inc. ("Pass Word") on February 15, 2000.[^2] On February
    8, 2000, Pass Word filed a request to amend its short-form
    application (FCC Form 175) for participation in Auction No. 26, the
    929 and 931 MHz Paging Auction.[^3] Specifically, Pass Word sought
    permission to add 931 MHz license frequency blocks AA and AC through
    BK within the four market service areas specified in its FCC Form
    175 (MEA041, Spokane-Billings; MEA042, Salt Lake City; MEA045,
    Portland; and MEA046, Seattle).[^4] The Division granted this waiver
    of Section 1.2105 (b)(2) of the Commission's Rules[^5] to permit
    Pass Word to change the license service areas identified on its FCC
    Form 175 for good cause shown. For the reasons set forth below,
    Cook's Petition is denied.

2.  Cook's Petition first argues that Pass Word's Request should have
    been dismissed solely because it is procedurally defective.[^6] In
    support of this argument, Cook states that Section 1.927(i) of the
    Commission's Rules requires that when a public notice has been
    issued listing applicants as mutually exclusive, an amendment to one
    mutually exclusive application must be served on other mutually
    exclusive applicants. Cook argues that it and other applicants for
    the same Major Economic Areas (MEAs) as Pass Word ". . . were
    foreclosed, to their prejudice, from challenging the propriety of
    the amendment prior to the Bureau's action,"[^7] because they were
    not served with Pass Word's Request. Cook's reliance on Section
    1.927 of the Commission's Rules is misplaced. This rule does not
    apply to amendments to pending applications in auctionable services,
    which is the case here. Section 1.927(a) states that, "Pending
    applications may be amended as a matter of right if they have not
    been designated for hearing or listed in a public notice as accepted
    for filing for competitive bidding, except as provided in
    paragraphs (b) through (e) of this section." Paragraph (b) reads
    that "Applicants for an initial license in auctionable services may
    amend such applications only in accordance with Subpart Q of this
    part." The applicable rule in Subpart Q, Competitive Bidding
    Proceedings, of the Part 1 rules is Section 1.2105(b), which does
    not require that notice be served on other applicants.

3.  Additionally, Cook claims that filing the application amendment and
    waiver request without serving a copy to other mutually exclusive
    applicants constituted a prohibited *ex parte* presentation to the
    Wireless Telecommunications Bureau ("Bureau"), which should have
    resulted in dismissal of the amendment, including the waiver
    request.[^8] Generally, however, mutually exclusive short form
    applications (FCC Form 175) are treated as exempt proceedings, and
    therefore, not subject to the *ex parte* prohibitions that generally
    pertain to restricted proceedings.[^9]

4.  Cook further asserts that the Bureau was "unjustifiably generous in
    accepting Pass Word's claim that it was confused by auction
    materials."[^10] Requests for waiver of rules must meet the criteria
    for granting a waiver.[^11] Pursuant to Section 1.925 of the
    Commission's Rules, Pass Word's Request showed unique circumstances
    supporting grant of the waiver.[^12] Furthermore, we concluded that
    granting the waiver did not undermine the purpose of the rule
    because we found credible Pass Word's explanation of its mistake.

5.  Cook also argues Pass Word's original application "was a significant
    factor in Cook's auction strategy, including the determination of
    its up front payment."[^13] Cook further maintains that if the
    waiver grant is not rescinded in its entirety, it should be modified
    to allow Pass Word to add only the AU channel to its application in
    each of the four MEAs, because Cook argues this is the only channel
    in which Pass Word has "a cognizable interest."[^14] Cook states
    that applicants, including itself, planned their auction strategy
    based at least in part on an evaluation of the other applications to
    determine the number of bidding units to acquire, and they did this
    without any knowledge of Pass Word's Request. Nevertheless, several
    other applicants selected all or some of the licenses in markets
    added by Pass Word pursuant to the *Waiver Letter*, and no other
    applicant has claimed any resulting prejudice. [^15]

6.  We remain convinced that the grant of Pass Word's request is in the
    public interest.[^16] Accordingly, we are not persuaded by Cook's
    arguments that Pass Word's waiver should be rescinded, or modified
    to add only the AU channel to its application in each of its four
    MEAs. Consequently, we deny Cook Telecom, Inc.'s Petition for
    Reconsideration.

7.  IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), and 303(r) of the
    Communications Act of 1934, as amended, 47 U.S.C. SS 151, 154(i),
    154(j), 303(r), that Cook Telecom, Inc.'s Petition for
    Reconsideration of Action Taken Pursuant to Delegated Authority
    filed on February 18, 2000, IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

> Mark Bollinger
>
> Acting Chief, Auctions and Industry Analysis
>
> Wireless Telecommunications Bureau

[^1]: Cook Telecom, Inc. Emergency Petition for Reconsideration, filed
    February 18, 2000 ("Petition").

[^2]: *See* Letter from Mark Bollinger, Acting Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau,
    Federal Communications Commission, DA 00-274, released February 15,
    2000 ("*Waiver Letter*").

[^3]: *See* Letter from Melodie A. Virtue, Haley, Bader & Potts, P.L.C.,
    to Amy Zoslov, Chief, Auctions and Industry Analysis Division,
    Wireless Telecommunications Bureau, Federal Communications
    Commission, February 8, 2000 ("Request"); *See also* 47 C.F.R. §
    1.2105(b)(2).

[^4]: *Id.*

[^5]: 47 C.F.R. § 1.2105(b)(2).

[^6]: *See* Petition at 2

[^7]: *Id*. at 2.

[^8]: *See* Petition at 3.

[^9]: *See* "Commission Announces That Mutually Exclusive 'Short Form'
    Applications (Form 175) to Participate in Competitive Bidding
    Process ('Auctions') Are Treated as Exempt for Ex Parte Purposes," 9
    FCC Rcd. 6760, DA 94-283 (rel. November 7, 1994) ("*1994 Public
    Notice*"). As this *1994 Public Notice* states, the Commission
    believes it is desirable to facilitate and encourage a free flow of
    information between applicants and the Commission staff concerning
    the wide-ranging questions about Commission procedures and
    requirements that apply to competitive bidding.

[^10]: *Id.* at 4.

[^11]: 47 C.F.R. § 1.925.

[^12]: *Id. See also* Pass Word's Request at 1.

[^13]: *See* Petition at 4.

[^14]: *Id*. at 2, 9.

[^15]: *See* "Auction of 2,499 -- 929 and 931 MHz Paging licenses,
    Status of Applications to participate in the Auction," *Public
    Notice,* DA-00173 (rel. February 1, 2000) ("*Status PN*").

[^16]: 47 C.F.R. 1.925; *See also* *Wait Radio v. FCC*, 418 F.2d 1153
    (D.C. Cir. 1969), *cert denied*, 409 U.S. 1027 (1972).