Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| Bell Mountain Communications,    | ) |                              |
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| Request for Waiver of            |   |                              |
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| Auction No. 30                   | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: March 1, 2001 Released: March 2, 2001**

**By the Deputy Chief, Wireless Telecommunications Bureau:**

# INTRODUCTION

1.  We have before us a petition for reconsideration filed by Bell
    Mountain Communications, Inc. ("Bell Mountain") on May 11, 2000.[^1]
    Bell Mountain, an Auction No. 30 applicant, seeks reconsideration of
    a decision by the Auctions and Industry Analysis Division
    ("Division") denying its request for waiver of the Commission's
    upfront payment deadline.[^2] Specifically, Bell Mountain requests
    that the Wireless Telecommunications Bureau ("Bureau") waive the
    upfront payment deadline of March 27, 2000. As explained fully
    below, we deny Bell Mountain's petition. We find that the Division
    properly denied Bell Mountain's waiver request, and accordingly,
    there is no basis for reconsideration.

# BACKGROUND

2.  On January 21, 2000, the Commission released a Public Notice
    notifying applicants for Auction No. 30[^3] that the deadline for
    submission of upfront payments was 6:00 p.m. (EST) on March 27,
    2000.[^4] The Commission also warned applicants "\[f\]ailure to
    deliver the upfront payment by the March 27, 2000 deadline will
    result in dismissal of the application and disqualification from
    participation in the auction."[^5] On the upfront payment deadline
    date, Bell Mountain authorized its bank, Riggs & Company ("Riggs"),
    to transfer funds from the personal account of its president to the
    Commission's account at Mellon Bank.[^6] However, Bell Mountain
    failed to provide Riggs with complete wire transfer
    instructions.[^7] Further, Riggs failed to follow its own internal
    procedures for processing Bell Mountain's wire transfer
    instructions.[^8] Bell Mountain failed to meet the Commission's
    March 27, 2000 deadline for submission of upfront payments.[^9] Bell
    Mountain subsequently filed a request for waiver of the upfront
    payment deadline alleging that a failure on the part of Riggs
    constituted adequate grounds for waiver.[^10] The Division denied
    Bell Mountain's request.[^11]

# DISCUSSION

3.  As we explain below, Bell Mountain has not demonstrated that grant
    of its petition for reconsideration would be appropriate.[^12] In
    its Waiver Request and its subsequent Petition, Bell Mountain
    generally contends waiver would be appropriate because its failure
    to timely submit its upfront payment was the direct result of an
    administrative error on the part of Riggs in the processing of its
    wire transfer request. In its Petition, Bell Mountain also argues
    that the Division's *Letter Ruling* is based on several factual
    misunderstandings that are incorrect and crucial to the Division's
    decision.[^13] Finally, Bell Mountain contends that the facts in its
    case are identical to those associated with Auction No. 25 applicant
    Ramona Lee Hayes-Bell[^14] and Auction No. 35 applicant MPCS.[^15]

4.  In both its Waiver Request and subsequent Petition, Bell Mountain
    fails to establish that: (i) the underlying purpose of the rule
    would not be served, or would be frustrated by its application in
    this particular case, and that a grant of the requested waiver would
    be in the public interest; or (ii) that the unique or unusual
    factual circumstances of this particular case render application of
    the rule inequitable, unduly burdensome or contrary to the public
    interest, or the applicant has no reasonable alternative.[^16]

5.  Bell Mountain contends that unique and unusual circumstances exist
    in this case, because it is rare that a well-recognized, large
    commercial bank would fail to process a wire transfer. Bell Mountain
    contends that Riggs failed to follow its own internal procedures for
    processing a client's wire transfer instructions. Further, Bell
    Mountain argues that Rigg's failure was, in turn, the cause of its
    failure to meet the upfront payment deadline.[^17] The circumstances
    presented by Bell Mountain do not demonstrate grounds for a waiver.
    Where, as here, an applicant initiates the wire transfer on the day
    the upfront payment is due, fails to provide complete wire transfer
    instructions to its bank, and fails to confirm receipt of the wire
    transfer through its bank, the applicant has failed to exercise
    reasonable diligence. As prior decisions in this area demonstrate,
    upon occasion an applicant will miss an auction deadline where it
    fails to allow sufficient time to react to unforeseen last minute
    difficulties.[^18] Accordingly, we concur with the Division that
    grant of a waiver is not warranted and would not be in the public
    interest. Additionally, as we explain below, Bell Mountain has
    failed to demonstrate a basis for reconsideration.

6.  In its Petition, Bell Mountain alleges that the Division made
    several factual mistakes in the *Letter Ruling*.[^19] Based upon the
    record before us, Bell Mountain fails to demonstrate any factual
    errors in the Division's *Letter Ruling* meriting reconsideration.
    Bell Mountain's first contention is that the *Letter Ruling* is
    incorrect with respect to the amount of time required to implement
    wiring instructions. In particular, Bell Mountain asserts that the
    Division incorrectly assumed that wire transfers could not
    reasonably be initiated and executed on the same day.[^20] Bell
    Mountain takes out of context the Division's ruling.[^21] Although
    it is possible for wire transfers to be initiated and executed on
    the same day, the processing difficulties experienced by Riggs
    indicate that upon occasion a successful wire transfer may
    reasonably require longer than one full day.[^22] In fact, the First
    Riggs Letter recognizes that "with a busy operations area" errors
    can occur to delay same day transfers.[^23] With respect to the
    Commission's auction deadlines, the Commission has repeatedly
    highlighted the importance of planning ahead to account for
    unforeseen last-minute difficulties.[^24] All applicants in Auction
    No. 30, including Bell Mountain, were warned to avoid untimely
    payments by discussing arrangements with their banker several days
    before they plan to make a wire transfer *and to allow sufficient
    time for the transfer to be initiated and completed* before the
    deadline.[^25] Bell Mountain did not provide itself with adequate
    time to complete the transfer.[^26] Bell Mountain initiated
    processing of the wire payment the day of the payment deadline,
    leaving little time for Bell Mountain to correct any errors or to
    reasonably react to unexpected contingencies that periodically arise
    during the wire transfer process.

7.  Bell Mountain's second contention is that the Division erred in the
    *Letter Ruling* by concluding that Bell Mountain was responsible for
    not meeting the upfront payment deadline, in part, because it did
    not confirm receipt of the wire transfer with Mellon Bank.[^27] We
    concur with the Division's conclusion. In the First Riggs Letter,
    Riggs only states that the wire transfer request was never received
    by its internal center responsible for such requests and that it
    made an error in not processing the wire transfer request.[^28]
    Notably, Bell Mountain does not allege that it confirmed receipt of
    the wire transfer with Mellon Bank through Riggs. Instead, Bell
    Mountain merely confirmed that Riggs had received the wire
    instructions and would ultimately forward payment to Mellon
    Bank.[^29] All applicants, including Bell Mountain, were cautioned
    to "confirm receipt of their upfront payments at Mellon Bank by
    contacting their sending financial institution."[^30] Had Bell
    Mountain contacted Riggs to confirm that Riggs had actually
    forwarded the payment to Mellon Bank, it would have received notice
    that the wire transfer had not been received by Mellon Bank. Upon
    receipt of that information, Bell Mountain through consultation with
    Riggs may have had a reasonable opportunity to discover and correct
    the problems associated with this wire transfer.

8.  Bell Mountain's third contention is that, in the *Letter Ruling*,
    the Division incorrectly noted that the lack of an ABA routing
    number in its facsimile wire instructions was an error that delayed
    wire transfer.[^31] We disagree. Riggs' statement that the omission
    of the ABA routing number "alone would not necessarily void the
    request,"[^32] does not preclude the possibility that lack of ABA
    routing numbers will delay or void the request. ABA routing numbers
    identify the specific bank to receive the electronic funds and
    ensure that the transferred funds are directed to the location of
    the receiving bank.[^33] Without the use of ABA routing numbers in
    wire transfer instructions, the possibility of an error in the
    transmission process is, at a minimum, significantly increased.
    Thus, the Commission specifically directs applicants to include ABA
    routing numbers in wire transfer requests.[^34] In addition to the
    examples cited above, Bell Mountain's failure to comply with this
    specific instruction demonstrates that it did not exercise due
    diligence in this matter.

9.  Bell Mountain's fourth contention is that the Division erred in its
    conclusion that Riggs did not explain that it had made a mistake in
    the wiring process.[^35] We disagree. In the First Riggs letter,
    included in Bell Mountain's Waiver Request, Riggs states "please
    accept \[our\] apology for the recent error, on our part" and
    acknowledges responsibility for Bell Mountain's failure to meet the
    payment deadline. The Division noted in its *Letter Ruling* that
    Riggs did "not state that a mistake was made in executing the
    Applicant's specific wire instructions."[^36] After issuance of the
    *Letter Ruling*, Bell Mountain provided the Division with the Second
    Riggs Letter wherein Riggs acknowledges its failure to transmit
    internally the wire transfer before the payment deadline. However,
    Riggs' error is not similar to, and does not rise to the level of,
    the errors made in previous instances where a partial waiver was
    granted.[^37] Further, Riggs' error does not erase or diminish the
    significance of Bell Mountain's failures. Thus, Riggs' error does
    not relieve Bell Mountain of its responsibility to exercise
    reasonable diligence in the wire transfer process.

10. Finally, Bell Mountain further contends that the facts of its case
    are on point with the Bureau's decisions in *Hayes-Bell* and *MPCS*,
    and accordingly, that a waiver should be granted.[^38] We disagree.
    In *Hayes-Bell*, the Bureau reinstated the application of Hayes-Bell
    after she attributed her delay in meeting the upfront payment
    deadline to an error by her bank, Nevada State Bank.[^39] In
    *Hayes-Bell*, the applicant presented *correct and complete* wire
    instructions to her bank *four* days before the upfront payment
    deadline. In contrast, Bell Mountain presented incomplete wire
    instructions on the day of the upfront payment deadline. In *MPCS*,
    the Division granted a waiver of the Auction No. 35 upfront payment
    deadline after the applicant demonstrated that the failure of its
    bank to execute MPCS's wire transfer instructions in a timely manner
    resulted in the bank's failure to transfer funds to the Commission
    before the deadline despite the due diligence exercised by MPCS to
    overcome the error on the part of its bank.[^40] In MPCS, the
    applicant discussed and arranged for the wire transfer with its bank
    several days before it planned to make the wire transfer.[^41] In
    the instant case, however, Bell Mountain failed to perform
    sufficient due diligence before the submission of its payment to
    overcome errors it made during the transaction. Bell Mountain failed
    to discuss and arrange for the wire transfer with Riggs several days
    before it planned to make the wire transfer.[^42] Additionally, Bell
    Mountain failed to provide complete wire transfer

    instructions.[^43] Unlike MPCS, Bell Mountain was not attentive to
    the wire transfer process.[^44] Thus, on the facts presented here,
    Bell Mountain did not exercise reasonable diligence as it failed to
    check the processing of the wire transfer by Riggs and also failed
    to confirm receipt of the wire transfer by Mellon Bank. Accordingly,
    we deny Bell Mountain's Petition and affirm the decision of the
    Division to deny Bell Mountain's waiver request.

# CONCLUSION

11. Accordingly, IT IS ORDERED, pursuant to sections 4(i) and 309(d)(2)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    309(d)(2), and Section 0.331 of the Commission's rules, 47 C.F.R. §
    0.331, the Petition for Reconsideration filed by Bell Mountain
    Communications, Inc. on May 11, 2000, IS HEREBY DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Kathleen O'Brien Ham,

> Deputy Chief, Wireless Telecommunications Bureau

[^1]: ^ ?^ Petition for Reconsideration of Bell Mountain Communications,
    Inc., filed May 11, 2000 ("Petition"); Supplement to Petition for
    Reconsideration, filed January 3, 2001 ("Supplement") (includes
    arguments based upon a decision issued after the Petition was
    filed).

[^2]: *See* Letter from Mark Bollinger, Acting Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau, to
    Messrs. Thomas Gutierrez and Todd Slamowitz, Lukas Nace Gutierrez &
    Sachs, Counsel for Bell Mountain Communications, Inc., 15 FCC Rcd
    6217 (2000) ("*Letter Ruling*"); *see also* Letter to Margaret
    Wiener, Chief, Legal Branch, Auctions and Industry Analysis
    Division, Wireless Telecommunications Bureau, from Messrs. Thomas
    Gutierrez and Todd Slamowitz, Counsel for Bell Mountain
    Communications, Inc., Re: Waiver of Upfront Payment Deadline (April
    5, 2000) ("Waiver Request").

[^3]: Auction No. 30 began on April 12, 2000 and closed in round 73 on
    May 8, 2000. "39 GHz Band Auction Closes; Winning Bidders of 2,173
    Licenses Announced," *Public Notice*, DA 00-1035, (rel. May 10,
    2000).

[^4]: *See* "Auction of Licenses for Fixed Point-to-Point Microwave
    Service in the 38.6 to 40.0 GHz (39 GHz) Band; Auction Notice and
    Filing *Requirements* for 2,450 Licenses in the 39 GHz Band
    Scheduled for April 12, 2000: Minimum Opening Bids and Other
    Procedural Issues," *Public Notice*, 15 FCC Rcd 850 (2000)
    ("*Auction No. 30 Public Notice"*)*.*

[^5]: *Auction No. 30 Public Notice* at Section III.D.

[^6]: Waiver Request at 1.

[^7]: *Id*. at 1-2.

[^8]: *Id*. at 2.

[^9]: *See* "Auction of Licenses for Fixed Point-to-Point Microwave
    Service in the 38.6 to 40.0 GHz (39 GHz) Band; 35 Qualified
    Bidders," *Public Notice*, 15 FCC Rcd 5748, 5769 (2000) ("*Auction
    No. 30 Qualified Bidders Public Notice"*)*.*

[^10]: Waiver Request at 1.

[^11]: *Letter Ruling* at 1.

[^12]: Since Bell Mountain's Petition does not rely on facts that have
    occurred or circumstances that have changed since its Waiver
    Request, the appropriate standard for review is 47 C.F.R §
    1.106(d)(2). Bell Mountain must cite findings of fact and/or
    conclusions of law it believes to be erroneous and must also state
    with particularity the respects in which it believes such findings
    and conclusions should be changed. 47 C.F.R § 1.106(d)(2).

[^13]: Petition at 4 (citing Letter to Mark Bollinger, Acting Chief,
    Auctions and Industry Analysis Division, Wireless Telecommunications
    Bureau, from Sandra J. Haller, Managing Director, Riggs & Company,
    dated April 12, 2000 ("Second Riggs Letter"), appended as an
    attachment to Petition).

[^14]: *See* Application of Ramona Lee Hayes-Bell for A New FM
    Construction Permit on Channel 236A at Pahrump, Nevada, *Memorandum
    Opinion and Order*, 15 FCC Rcd 14729 (2000) ("*Hayes-Bell*").

[^15]: *See* Letter from Margaret W. Wiener, Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau, to
    Lynn R. Charytan, Wilmer Cutler & Pickering, Counsel for MPCS
    Wireless, Inc., DA 00-2760 (rel. December 12, 2000) ("*MPCS*").

[^16]: 47 C.F.R. § 1.925.

[^17]: Letter to Mr. Kent Foster from Sandra J. Haller, Managing
    Director, Riggs & Company, dated April 4, 2000 ("First Riggs
    Letter"), appended as an attachment to the Waiver Request. In the
    First Riggs Letter, Riggs explains to the Applicant's president: "We
    immediately faxed your wire instructions to our DC Operations
    Center. However, they either never received the instructions or they
    were inadvertently \[sic\] mixed in with other faxes. Unfortunately,
    with a busy operations area, this can happen on occasion."

[^18]: *See*, *e.g.*, Letter from Mark Bollinger, Acting Chief, Auctions
    and Industry Analysis Division, Wireless Telecommunications Bureau,
    to Mr. Jason Bunch, 15 FCC Rcd 6069 (2000) (applicant initiated
    processing of the wire payment the day of the payment deadline,
    leaving little time to become familiar with the requirements of the
    process and react to unforeseen last-minute difficulties); Letter
    from Amy J. Zoslov, Chief, Auctions and Industry Analysis Division,
    Wireless Telecommunications Bureau, to James A. Rech, Counsel for
    Landmark Site Development, LLC, 14 FCC Rcd 6479 (1999) (noting that
    the Commission cautioned Auction No. 23 applicants to discuss
    arrangements with their banker several days before they planed to
    make the wire transfer); Letter from Amy J. Zoslov, Chief, Auctions
    and Industry Analysis Division, Wireless Telecommunications Bureau,
    to John D. Szuchan, Counsel for On Target, L.L.C., 14 FCC Rcd 6375
    (1999) (request for waiver of the FCC Form 175 filing deadline);
    Letter from Amy J. Zoslov, Chief, Auctions and Industry Analysis
    Division, Wireless Telecommunications Bureau, to Cary S. Tepper,
    Booth Freret Imlay & Tepper, P.C., and Larry D. Jones, DA 99-1903
    (September 17, 1999) (noting the importance of planning ahead to
    account for unforeseen last-minute difficulties).

[^19]: Petition at 4-6.

[^20]: Riggs states that it "processes hundreds of wire transfers each
    week, and a domestic wire transfer request takes no longer than a
    few hours." Letter to Mark Bollinger, Acting Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau, from
    Sandra J. Haller, Managing Director, Riggs & Company, dated April
    12, 2000 ("Second Riggs Letter"), appended as an attachment to
    Petition.

[^21]: *See Letter Ruling* at 2-3 ("The \[First Riggs Letter\] further
    indicates that a successful wire transfer may reasonably require
    longer than one full day").

[^22]: First Riggs Letter, appended as an attachment to the Waiver
    Request.

[^23]: *See* n.17, *supra.*

[^24]: *See* n.18, *supra*.

[^25]: *Auction No. 30 Public Notice* at Section III.D.1; *see also*
    "Auction Notice and Filing Requirements for 528 Multilateration
    Licenses; Scheduled for December 15, 1999; Minimum Opening Bids and
    Other Procedural Issues," *Public Notice*, 13 FCC Rcd 18583 18596
    (1998) (warning Auction No. 21 applicants to avoid untimely payments
    by making arrangements early before planning wire transfers);
    "Auction Notice and Filing Requirements for 168 Local Multipoint
    Distribution Service Spectrum, Scheduled for April 27, 1999; Minimum
    Opening Bids and Other Procedural Issues," *Public Notice*, 14 FCC
    Rcd 2191, 2204 (1998) (warning Auction No. 23 applicants to avoid
    untimely payments by making arrangements early before planning wire
    transfers); "Auction Notice and Filing Requirements for 2,499 Paging
    Upper Band Licenses; Scheduled for February 24, 2000; Minimum
    Opening Bids and Other Procedural Issues," *Public Notice*, DA
    99-1591 at Section 3.C.1 (rel. August 12, 1999) (warning Auction No.
    26 applicants to avoid untimely payments by making arrangements
    early before planning wire transfers).

[^26]: *Letter Ruling* at 2.

[^27]: Petition at 4-6.

[^28]: First Riggs Letter.

[^29]: Petition at 4-6.

[^30]: *Auction No. 30 Public Notice* at Section III.D.1.

[^31]: Petition at 5.

[^32]: Second Riggs Letter at 1.

[^33]: *See* 12 C.F.R. Part 229, Appendix A.

[^34]: *See Auction No. 30 Public Notice* at Section III.D.1 (listing
    the ABA routing number for Mellon Bank, which receives wire
    transfers for the Commission).

[^35]: Petition at 5.

[^36]: *Letter Ruling* at 3.

[^37]: *See*, *e.g.*, *Hayes-Bell*, 15 FCC Rcd at 14732-33, ¶¶ 8-9.

[^38]: Waiver Request at 2; Supplement at 1.

[^39]: *Hayes-Bell*, 15 FCC Rcd at 14730 n.5.

[^40]: *MPCS* at 3-4.

[^41]: *Id*. at 3.

[^42]: *See* Waiver Request at 1-2.

[^43]: Second Riggs Letter at 1 ("Although the ABA number was not
    included in the wire transfer instructions forwarded to Riggs . .
    .").

[^44]: MPCS performed sufficient due diligence to overcome any error in
    the submission of its payment. MPCS exercised reasonable diligence
    in checking on the status of the wire transfer to Mellon Bank. When
    Chase suspended processing of the wire transfer, MPCS, to its
    credit, persuaded Chase to continue processing the transaction
    before its upfront payment deadline. Despite MPCS's notable
    attention to the details of the wire transfer, and its successful
    intervention when a Chase supervisor instructed the branch manager
    to suspend the wire transfer, MPCS's effort to make timely payment
    was foiled at the last minute. In addition, MPCS confirmed receipt
    of the transfer and notified the Auctions and Industry Analysis
    Division as soon as it discovered that its payment was not timely.
    *MPCS* at 3.