**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Applications of            | *  | File No. 0000997158          |
|                                  | *) |                              |
| Smith-Bagley, Inc. &             | ** | File No. 0000959496          |
|                                  |    |                              |
| WWC License L.L.C.               | *  |                              |
|                                  | *) |                              |
| Phase II Cellular Unserved Area  | ** |                              |
| Applications                     |    |                              |
|                                  | *  |                              |
| For New Mexico 3 RSA (Catron)    | *) |                              |
|                                  | ** |                              |
| Market No. 555, Block A          |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: February 7, 2005 Released: February 8, 2005**

By the Assistant Chief, Mobility Division, Wireless Telecommunications
Bureau:

# introduction

1.  This Order addresses three petitions seeking to deny the
    above-captioned applications. On September 20, 2002, McElroy
    Electronics Corporation (McElroy) and WWC License L.L.C. (WWC)
    separately filed petitions to deny the application of Smith Bagley,
    Inc. (SBI).[^1] On September 25, 2002, McElroy also filed a Petition
    to Dismiss or Deny WWC's above-captioned amended application and
    associated request for waiver of Section 22.949(b)(3) of the
    Commission' rules permitting only one Cellular Geographic Service
    Area (CGSA) per application (Waiver Request).[^2] For the reasons
    set forth below, we grant the petitions seeking to deny SBI's
    application and dismiss SBI's application as defective. We further
    deny McElroy's Petition to Dismiss or Deny WWC's application and
    grant WWC's Waiver Request.

# background

2.  By statute, the Commission is required to employ competitive bidding
    procedures when choosing from among pending mutually exclusive
    applications for certain initial licenses.[^3] Under Part 22 of the
    Commission's rules, which governs site-specific application
    procedures for the cellular service, mutually exclusive applications
    are processed in filing groups.[^4] If the earliest application
    accepted for filing is for an initial authorization, the Commission
    releases a public notice initiating a 30-day notice and cut-off
    filing period for competing applications.[^5] The Commission may
    dismiss as defective any mutually exclusive application whose filing
    date is outside the date range for inclusion in the filing group.
    Mutually exclusive applications that are submitted within the filing
    group, however, are given concurrent consideration.[^6] The
    Commission then applies competitive bidding procedures in accordance
    with its competitive bidding rules to all of the mutually exclusive
    applications filed within the 30-day notice and cut-off period.
    After the auction, the Commission may grant the highest bidder's
    application and dismiss the other applications without
    prejudice.[^7]

3.  These rules governing filing groups for processing mutually
    exclusive applications apply to this proceeding, which stems from a
    letter issued on May 30, 2002,[^8] implementing the Commission's
    revocation of the license granted to Alee Cellular Communications
    (Alee) for Station KNKN271.[^9] Alee's license authorized cellular
    operations in the New Mexico 3 RSA, Market No. 555, on Block A (New
    Mexico 3 RSA). Under its license, Alee operated six cellular sites
    located on the eastern side of the New Mexico 3 RSA, running in a
    north-to-south direction along Interstate Highway 125.[^10] One day
    after the revocation of Alee's license, on May 31, 2002, the former
    Commercial Wireless Division (Division)[^11] issued a Public Notice
    inviting interested parties to file Phase II unserved area
    applications for the New Mexico 3 RSA.[^12] On June 4, 2002, in
    response to the Public Notice, McElroy filed an application to
    provide cellular service in New Mexico 3 RSA at ten proposed
    locations. On June 12, 2002, the Division released a public notice
    accepting McElroy's application for filing,[^13] and establishing a
    cut-off deadline of July 12, 2002, for filing competing
    applications.[^14]

4.  Four additional interested parties filed competing applications
    within the notice and cut-off period established by McElroy's
    first-filed application. All of the applications propose service
    coverage similar to that previously provided by Alee, but McElroy
    and WWC also each proposed three sites in their initial applications
    extending due west of the former Alee service area, including a site
    at Datil, New Mexico. McElroy and WWC each proposed a site at the
    Datil, New Mexico location unaware that the site had already been
    licensed to SBI under Call Sign KNKR315 pursuant to the grant of a
    Phase II unserved area application that SBI filed in 1998. The
    issues raised in the three petitions that are the subject of this
    Order stem from errors made in SBI's license application for Station
    KNKR315, and the corresponding error in the status of the station
    license in the Commission's ULS database that remained in error
    until July 16, 2002, four days after the cut-off deadline in this
    proceeding. The following describes in detail the facts surrounding
    the history of the license for Station KNKR315, as well as the
    status of each application filed in this proceeding.

## Smith Bagley Inc.'s License for Station KNKR315 -- Datil, New Mexico

5.  On September 6, 1994, SBI filed a Phase I unserved area application
    seeking authority to construct and operate a cellular site in the
    New Mexico 3 RSA at Datil, New Mexico.[^15] On May 21, 1997, the
    Division's Licensing and Technical Branch (Licensing Branch) granted
    the application, assigning the license Call Sign KNKR315. Around
    that same time, SBI was granted licenses to operate cellular systems
    under Station KNKN208 in the Arizona 3 RSA, which is the adjacent
    Block A cellular market west of New Mexico 3 RSA, and a license for
    Station KNKR316 to provide cellular service in the New Mexico 1 RSA,
    which is the adjacent Block A cellular market north of the New
    Mexico 3 RSA. While SBI constructed and is still operating under its
    licenses for Stations KNKN208 and KNKR316,[^16] SBI failed to meet
    the construction and commencement of service requirements under
    Section 22.946(a) of the Commission's rules[^17] for Station KNKR315
    and, as a result, the license automatically cancelled on May 21,
    1998.[^18] The Division's Licensing Branch sent SBI a letter dated
    August 7, 1998, notifying SBI of the automatic cancellation of its
    license for Station KNKR315.[^19] As a result of the automatic
    cancellation, the status of the license for Station KNKR315 was
    entered into ULS as "Terminated."

6.  Despite the automatic cancellation and associated notification, SBI
    filed a Phase II unserved area application on September 16, 1998,
    proposing to modify its license for Station KNKR315 by adding a
    second cell site northwest of Datil, New Mexico.[^20] SBI's
    application was granted on November 12, 1998.[^21] While granting
    the application was substantively proper, a new call sign should
    have been assigned to the license. SBI's application, however, was
    granted under Call Sign KNKR315 as requested in the
    application,[^22] but the status of KNKR315 remained in ULS as
    Terminated. SBI notified the Commission of the error on July 11,
    2002, through a Petition to Dismiss or Deny McElroy's first-filed
    application that it filed on that day[^23] and the status of SBI's
    license in ULS for Station KNKR315 was changed to "Active" on July
    16, 2002.

## McElroy Electronics Corporation's Applications

7.  The ten cellular sites that McElroy proposed in its first-filed
    application included seven sites that would provide service to an
    area virtually identical to the area formerly served by Alee,
    together with three sites, Magdalena, Datil, and Quemado, extending
    due west of the former Alee service area. The Magdalena site is the
    eastern-most site and the Quemado site is farthest west, with Datil
    located between the two.[^24] According to McElroy, over the course
    of the 30-day notice and cut-off filing period, it discovered that
    SBI was licensed and operating under Station KNKR315 at McElroy's
    proposed Datil site.[^25] On July 11, 2002, the 29^th^ day of the
    notice and cut-off period, McElroy amended its first-filed
    application to delete the proposed Datil and Quemado sites. McElroy
    deleted the proposed Quemado site from its first-filed application
    because Commission rules limit each application to one CGSA,[^26]
    and without the Datil site, authority to operate at Quemado requires
    a stand-alone CGSA.[^27] McElroy therefore separately filed, on the
    same day, July 11, 2002, a Phase II unserved area application for
    the Quemado site.[^28] Also on July 11, 2002, SBI filed its Petition
    to Dismiss or Deny McElroy's first-filed application, alleging that
    McElroy's proposal would cause harmful interference to its Station
    KNKR315 licensed at the Datil site. The Division's Policy and Rules
    Branch dismissed SBI's Petition to Deny as moot because McElroy had
    amended its application to remove the potential interference.[^29]

## Commnet Capital, LLC Application and ALLTEL Communications of the Southwest Limited Partnership Application

8.  Commnet Wireless, LLC (Commnet) submitted the second-in-time
    mutually exclusive application on June 12, 2002,[^30] one day after
    McElroy's application was accepted for filing. ALLTEL Communications
    of the Southwest Limited Partnership (ALLTEL) filed a competing
    application on July 11, 2002, the 29^th^ day of the notice and
    cut-off period.[^31] Neither of these applications proposes service
    at any of the three western sites, Magdalena, Datil, or Quemado, New
    Mexico.

## WWC License L.L.C.'s Application

9.  WWC also filed its competing application on July 11, 2002, within
    the 30-day notice and cut-off window established by McElroy's
    first-filed application. WWC's application is virtually identical to
    McElroy's first-filed application, including proposals for the
    Magdalena, Datil, and Quemado sites. [^32] On July 25, 2002, the
    Division's Licensing Branch returned WWC's application along with a
    letter directing WWC to amend its application within 60 days of the
    date of the letter to demonstrate that its proposal would not cause
    unlawful interference to the Datil site authorized under SBI's
    license for Station KNKR315 (July 25 Letter).[^33] In response, on
    September 5, 2002, WWC filed an amendment to its application
    deleting the Datil site and reducing power at its proposed Magdalena
    and Quemado sites. As in McElroy's situation, deleting the Datil
    site left a gap in the service area proposed in WWC's initial
    application, resulting in a distinct CGSA for the proposed Quemado
    site. Rather than submitting a separate application for the Quemado
    site, however, WWC requests waiver of Section 22.949(b)(3) of the
    Commission's Rules, which permits only one CGSA per
    application.[^34] In the alternative, WWC requests a waiver of the
    filing date requirement set forth under Section 22.131(b) of the
    Commission's rules to allow it to file a separate application for
    the Quemado site. Finally, WWC states that if the Commission denies
    its alternative waiver requests, it will withdraw its proposed
    Quemado site.[^35] On September 25, 2002, McElroy filed its Petition
    to Dismiss or Deny WWC's amended application as defective.[^36]

## Smith Bagley, Inc.'s Applications

10. SBI filed its competing application on July 12, 2002, the last day
    of the notice and cut-off period, proposing service that would cover
    the area in the New Mexico 3 RSA east of its Station KNKR315 located
    at Datil, New Mexico. Specifically, SBI's application proposes
    service at the Magdalena site in addition to the area formerly
    covered by Alee. The application does not propose service at the
    Quemado site.[^37] Rather, on August 14, 2002, SBI filed a separate
    Phase II unserved area application for a new cellular system at the
    Quemado site.[^38] According to SBI, it filed its Quemado
    application within the 30-day period established by McElroy's
    separately filed Quemado application, which was accepted for filing
    on July 17, 2002.[^39] On September 20, 2002, McElroy and WWC filed
    individual petitions to dismiss SBI's Quemado application as
    defective, arguing that SBI filed the application outside of the
    30-day notice and cut-off window established by McElroy's
    first-filed application.[^40]

# discussion

## Smith Bagley, Inc. Quemado Application

11. We dismiss SBI's application proposing service at the Quemado, New
    Mexico site as defective because SBI filed the application outside
    the 30-day notice and cut-off period established by the public
    notice accepting McElroy's first-filed application for filing. The
    Commission has, over time, adopted various cut-off rules, so called
    because applicants filing before the deadlines are cut off from
    competition against late-filing parties.[^41] The Commission has
    repeatedly stated that the cut-off period established by the
    first-filed mutually exclusive application applies to all mutually
    exclusive filings.[^42] Thus, once the Commission places that
    initial application on public notice as accepted-for-filing, all
    applications proposing CGSAs that overlap the CGSA proposed in that
    first-filed application must be filed within the notice and cut-off
    period established by the first-filed application to be given
    concurrent consideration. This rule applies to applications that are
    either directly or indirectly mutually exclusive with the
    first-filed application.[^43] Similarly, the cut-off deadline
    established by the first-filed application applies to additional
    mutually exclusive facilities proposed by the original
    applicant.[^44] Section 22.131(c)(3)(iii) of the Commission's rules
    states that a 30-day notice and cut-off period is used when
    applications are filed for initial authorizations.[^45] The
    Licensing Branch placed McElroy's first-filed application on public
    notice on June 12, 2002, establishing a cut-off deadline of July
    12, 2002. SBI filed its Quemado application on August 14, 2002, 33
    days after the notice and cut-off deadline for filing competing
    applications.

12. In dismissing SBI's Quemado application as filed in an untimely
    manner, we reject SBI's argument that its Quemado application and
    McElroy's first-filed application were never competing applications.
    SBI explains that McElroy had amended its first-filed application to
    delete its Quemado site so that the CGSA of McElroy's amended
    first-filed application did not overlap with the CGSA in SBI's
    proposed Quemado application at the time SBI filed its Quemado
    application.[^46]

13. SBI supports its argument that its Quemado application is not
    untimely by citing to *In the Matter of Plaincom, Inc.*[^47] Relying
    heavily on the rule that whether "an application is timely must be
    determined as of the time of filing, not by an event occurring after
    the cut-off date," SBI argues that McElroy "withdrew" its proposed
    Quemado site from its first-filed application before SBI filed its
    own Quemado application.[^48] SBI further contends that the
    Commission's rule that the "first-filed application, even if
    subsequently dismissed, establishes the cut-off period for all later
    competing applications" is inapplicable because SBI filed its
    Quemado application after, not before, McElroy amended its
    first-filed application to delete its originally proposed Quemado
    site.[^49] In *Plaincom*, the Commission explained that where the
    first-filed application is dismissed after the second application is
    filed, deeming the untimeliness of the second application to be
    cured retroactively by the subsequent dismissal of the first
    application would deprive interested parties of the opportunity to
    file competing applications against the second and untimely
    application.[^50] The Commission further explained that where a
    first-filed application is dismissed before the untimely second
    application is filed, the public notice listing the second
    application as accepted-for-filing initiates a new notice and
    cut-off period, during which competing applications may be
    filed.[^51] *Plaincom*, however, is inapplicable in this proceeding
    because McElroy's first-filed application has neither been dismissed
    nor withdrawn.

14. Consistent with Commission rules, the July 12, 2002 cut-off deadline
    in this proceeding applies to all applications that are either
    directly or indirectly mutually exclusive with McElroy's first-filed
    application, including additional mutually exclusive facilities
    proposed by McElroy. Stated another way, once the Division placed
    McElroy's first-filed application on public notice as
    accepted-for-filing, all applications proposing CGSAs that overlap
    the CGSA proposed in McElroy's first-filed application must be filed
    within the 30-day notice and cut-off period established by McElroy's
    first-filed application to be given concurrent consideration.
    Commnet, ALLTEL, WWC, and SBI individually filed initial
    applications meeting that requirement.

15. In addition, pursuant to Commission rules that permit applicants to
    submit minor amendments to their applications,[^52] McElroy amended
    its first-filed application for the purpose of curing defects in its
    initial proposal that would have caused unlawful interference to
    operations authorized under SBI's license for Station KNKR315 at
    Datil, New Mexico. By curing the defects in its application, McElroy
    preserved its right to protection for its application from competing
    applications filed after the cut-off deadline. In addition, McElroy
    filed a new application for the Quemado site prior to the cut-off
    deadline, similarly preserving its right to protection for that
    proposed site from competing applications filed after the same
    cut-off deadline.[^53] McElroy's amendment and application for
    additional facilities at the Quemado site did not alter the cut-off
    deadline established by its first-filed application. McElroy's
    actions merely preserved its ability to be given concurrent
    consideration with other applications filed in a timely manner
    within that notice and cut-off period. SBI, on the other hand, filed
    its Quemado application outside the notice and cut-off period
    established by McElroy's first-filed application.

16. While SBI contends that McElroy's separately filed Quemado
    application initiated a new 30-day notice and cut-off period and
    that its August 14, 2002 Quemado application is therefore filed in a
    timely manner,[^54] SBI raises a concern in its Opposition that its
    Quemado application may be untimely filed in the context of the
    Commission's daisy chain rule[^55] because WWC filed an application
    before the July 12, 2002 cut-off deadline that also proposed a site
    at Quemado, New Mexico.[^56] SBI counters its own contention arguing
    that WWC's application is so defective because of the interference
    that it would cause to SBI's Station KNKR315 that WWC's application
    "does not warrant concurrent consideration with SBI's Quemado
    application" and "should be dismissed."[^57] We initially dismiss
    SBI's argument as a late-filed petition to deny WWC's initial
    application.[^58] Section 1.939(a)(2) of the Commission's rules
    provides that petitions to deny must be filed no later than 30 days
    after the date of the public notice listing the application as
    accepted for filing.[^59] WWC's application was accepted for filing
    on July 17, 2002, establishing a deadline for petitions to deny of
    August 16, 2002. SBI filed its Opposition, which presents its
    argument to dismiss WWC's application, on October 3, 2002, 77 days
    after WWC's application was accepted for filing.

17. Moreover, the daisy chain rule is inapplicable in this case because
    SBI's Quemado application is not indirectly mutually exclusive with
    McElroy's first-filed application. As we have already stated, the
    cut-off period established by the first-filed mutually exclusive
    application applies to all mutually exclusive filings. Under
    Commission rules, the CGSA proposed in McElroy's first-filed
    application does not shape-shift as events take place during the
    notice and cut-off period. The amendment of McElroy's first-filed
    application did not alter the CGSA proposed in that first-filed
    application nor did it alter the cut-off deadline in this
    proceeding. McElroy's first-filed application proposed a site at
    Quemado, New Mexico; WWC's application proposed a site at Quemado,
    New Mexico; SBI filed an application proposing a site at Quemado,
    New Mexico. Those proposals are directly mutually exclusive. The
    daisy chain rule is inapplicable.

18. We note, however, that even if the daisy chain rule were relevant in
    this case, we would reject SBI's argument opposing application of
    the rule. SBI urges us to "enforce \[its\] right to
    interference-free operation" by dismissing WWC's application,
    arguing that SBI's Quemado application cannot be cut-off by an
    application that is "fundamentally defective."[^60] Commission
    policy and rules protect existing stations from unlawful
    interference.[^61] While that type of technical defect in an
    application may result in the dismissal of the application, an
    application with a proposal that would result in unlawful
    interference or even the dismissal of that application generally
    cannot cure the untimeliness of another application, [^62] and SBI
    provides no legal support to demonstrate otherwise.

19. Finally, SBI has held a license for many years to provide cellular
    service under the Call Sign KNKR315 in the western portion of the
    New Mexico RSA 3 market at Datil, New Mexico. By stating in its July
    11, 2002 Petition to Dismiss or Deny McElroy's first-filed
    application that "\[u\]pon review of McElroy's application, SBI
    discovered that its Datil Site, operating under Call Sign KNKR315,
    had been terminated in the Commission's ULS database for unspecified
    reasons," ... and "that each of McElroy's proposed service contours
    for each of its three site locations at Datil, NM, Quemado, NM, and
    Magdalena, NM overlaps SBI's existing authorized Datil site,"[^63]
    SBI fully acknowledges that it was aware that McElroy's first-filed
    application included a proposal for the Quemado site and was
    informed about the circumstances in this proceeding in making its
    decisions on when to file its applications.[^64] We find that SBI
    filed its Quemado application in an untimely manner outside the
    30-day notice and cut-off period established by McElroy's
    first-filed application. Accordingly, we dismiss SBI's Quemado
    application as defective pursuant to Section 1.934(a) of the
    Commission's rules.[^65]

## WWC License L.L.C. Amended Application and Request for Waiver

20. We next turn to WWC's amended application and associated Waiver
    Request, and McElroy's challenge to that amended application. As we
    stated above, WWC filed its amended application on September 5,
    2002, along with a request for waiver of Section 22.949(b)(3) of the
    Commission's rules, which permits only one CGSA per application. In
    the alternative, WWC seeks waiver of the filing date requirement,
    set forth under Section 22.131(b) of the Commission's rules, to
    allow WWC to file a separate application for the Quemado site after
    the cut-off deadline established by McElroy's first-filed
    application.[^66] We grant WWC waiver of Section 22.949(b)(3). We
    therefore will not consider WWC's request for waiver of Section
    22.131(b) of the Commission's rules.

21. We initially find that McElroy filed its Petition to Dismiss or Deny
    WWC's application in an untimely manner. Section 1.939(a)(2)
    provides that petitions to deny non-auctionable applications must be
    filed no later than 30 days after the date of the public notice
    listing the application or major amendment to the application as
    accepted for filing.[^67] McElroy reasons that Section 1.939(a)(2)
    is "inapposite regarding the timeliness of \[its\] petition" because
    Section 22.131(b), the rule section that governs this proceeding for
    granting one application in a group of mutually exclusive
    applications, directs the Commission to employ auction
    procedures.[^68] The purpose of each rule section, however, differs
    from the other and the procedural requirements of Section
    1.939(a)(2) precede the procedural requirements of Section
    22.131(b). Section 1.939(a)(2) of the Commission's rules outlines
    those procedures used to allow third parties to assist the
    Commission in determining whether a non-auctionable application is
    defective and should be dismissed in the first place. For
    applications that are determined finally to be acceptable for
    filing, Section 22.131(b) of the Commission's rules outlines the
    procedures used for determining whether applications are mutually
    exclusive and, if so, whether competitive bidding will be used to
    determine which of those mutually exclusive applications may be
    granted.

22. We also reject McElroy's arguments that its Petition to Dismiss or
    Deny is timely because WWC's separate CGSA constitutes either an
    initial authorization or a major modification to an existing
    station. McElroy first argues that Section 22.131(d)(2)(i) of the
    Commission's rules defines an application for a new station as a
    request for an "initial authorization" and that Section 1.929(a) of
    the Commission's rules defines an application for an "initial
    authorization" as a major action, initiating a new 30-day notice and
    cut-off period.[^69] WWC did not file an application on September 5,
    2002, for its proposed Quemado site. WWC filed an amendment to its
    initial application deleting the Datil site and reducing the
    Magdalena and Quemado sites. The amendments also resulted in two
    separate CGSAs, causing WWC to seek a waiver of the Commission's
    rule permitting only one CGSA per application. Denial of the waiver
    could result in dismissal of WWC's application, but the amendments
    are considered minor under Commission rules and do not initiate a
    new pleading cycle for filing petitions to deny.[^70]

23. For the same reasons, we reject McElroy's contention that Section
    1.947(a) of the Commission's rules classifies WWC's amended
    application as a major modification, initiating a new 30-day filing
    period for petitions to deny under Section 1.939(a)(2) of the
    Commission's rules. Section 1.947(a) states, in relevant part, that
    a major modification to an existing station requires Commission
    approval.[^71] McElroy argues that because the amendment required
    under the July 25, 2002 letter sent to WWC "implies" that Commission
    approval is required, WWC's September 5 filing is therefore "also
    classified as a major amendment under Section 1.947(a)."[^72] This
    argument is groundless. Section 1.947 of the Commission's rules
    outlines procedures for filing and processing major or minor
    modification applications, not amendments to applications. The plain
    language of the rule states that major modifications require
    Commission approval, not that an action requiring Commission
    approval constitutes a major amendment to an application.

24. McElroy's Petition to Dismiss or Deny is late-filed because WWC's
    application was accepted for filing on July 17, 2002, establishing a
    deadline for filing petitions to deny on August 16, 2002. McElroy
    filed its Petition to Dismiss or Deny WWC's application on September
    25, 2002, 40 days after the deadline, without seeking a waiver of
    the deadline. We, however, grant McElroy's request, in the
    alternative, to consider its pleading as an informal objection.[^73]
    Because Section 1.925 does not provide formal procedures for
    responding to requests for waivers, we grant McElroy's request to
    consider its pleading as an Informal Objection to WWC's Waiver
    Request under Section 1.41 of the Commission's rules.[^74]

25. While we grant McElroy's request, we deny the Informal Objection and
    grant WWC waiver of Section 22.949(b)(3) of the Commission's rules.
    We may grant a waiver pursuant to Section 1.925 of the Commission's
    rules if it is shown that: (1) the underlying purpose of the rule
    would not be served or would be frustrated by application to the
    instant case, and a grant of the requested waiver would be in the
    public interest; or (2) in view of unique or unusual factual
    circumstances of the instant case, application of the rule would be
    inequitable, unduly burdensome or contrary to the public interest,
    or the applicant has no reasonable alternative.[^75] We find that
    strict application of Section 22.949(b)(3) in this case would not
    serve the underlying purpose of the rule and would be contrary to
    the public interest.

26. The Commission's underlying purpose for permitting only one CGSA per
    application is to promote administrative efficiency in the effective
    evaluation of mutually exclusive applications.[^76] In proposing the
    rule, the Commission explained that multiple CGSAs in the same
    application could create unworkable mutually exclusive applications,
    where, because of a possible 'daisy chain' effect, it would be
    extremely difficult to determine which applications were mutually
    exclusive."[^77] That concern is not an issue with respect to WWC's
    amended application and the other applications filed in a timely
    manner in this proceeding. WWC's amended application is virtually
    identical to McElroy's amended application and separately filed
    Quemado application. In fact, all of the applications are virtually
    identical to each other, except WWC and McElroy each propose sites
    for Quemado, New Mexico. None of these proposals has created
    unworkable mutually exclusive applications resulting in some daisy
    chain effect that is extremely difficult to determine which
    applications are in fact mutually exclusive. The issues raised in
    this proceeding have stemmed entirely from the status error
    reflected in SBI's license for Station KNKR315. Granting WWC's
    request for waiver of Section 22.949(b) does not result in any
    further delay in processing the mutually exclusive applications in
    this proceeding.

27. In finding that strict application of the rule will not serve the
    underlying purpose of Section 22.949(b)(3), we also reject McElroy's
    argument that WWC's application should be dismissed because the
    circumstances resulting in WWC's defective application are neither
    unique[^78] nor inequitable.[^79] According to McElroy, the
    circumstances are not unique because both applicants researched the
    same public documents and submitted applications containing the same
    technical defects.[^80] McElroy fails, however, to reconcile its
    arguments with cases where the Commission has granted waivers to
    entities where the same facts affect and relief is applied to
    several parties similarly situated, sometimes even where the
    affected parties have not sought waiver relief.[^81]

28. McElroy also argues that circumstances in this proceeding are not
    inequitable because McElroy cured the defects in its initial
    application prior to the cut-off deadline, while WWC did not, which,
    according to McElroy, demonstrates that WWC's errors in its
    application are "attributable to WWC's own acts and omissions" and
    lack of due diligence.[^82] While choosing not to disclose how it
    discovered the defects in its own application,[^83] McElroy
    insinuates that WWC could have ascertained the operational status of
    KNKR315 simply by test-driving the New Mexico RSA 3 market."[^84]
    McElroy further hints that WWC could have discovered the status
    error through what McElroy deems to be "inconsistent information"
    regarding Station KNKR315 in the Commission's ULS database.[^85]
    While WWC or any other applicant may have performed a drive-test or
    interpreted information in the Commission's database in the same way
    that McElroy might have interpreted the information, McElroy fails
    again to provide any legal basis on which we would apply these
    measures regarding a final determination for WWC's Waiver Request.

29. Similarly, McElroy's argument that Commission due diligence public
    notices issued prior to an auction[^86] is also misplaced. McElroy
    quotes the standard language from one of these public notices as
    strongly encouraging potential bidders "to physically inspect any
    sites located in, or near, the market for which they plan to
    bid."[^87] McElroy then concludes that "\[t\]he strong encouragement
    ... demonstrates that it would have been eminently reasonable for
    WWC ... to inspect NM RSA 3 before filing its application."[^88]
    McElroy, however, does not explain why this standard language from a
    due diligence public notice issued prior to auctions applies to
    WWC's amended application and request for waiver of the Commission's
    rule permitting only one CGSA per application.

30. The due diligence public notices remind potential bidders in the
    competitive bidding process of two things. The first is that certain
    filings may remain pending before the Commission after the auction
    closes, the resolution of which may affect the availability of the
    spectrum in any given market. Second, the Commission makes no
    representations or guarantees regarding the accuracy or completeness
    of information in its databases, including the accuracy or
    completeness of information that incumbent licensees have provided.
    The public notices are intended to seek out information from the
    public to correct errors in the Commission databases and to assist
    potential bidders in taking steps that might help them determine the
    actual value of the white space in the market in which they are
    bidding. Importantly, the Commission issues subsequent due diligence
    public notices to update information regarding both filings and
    corrections to database information as that information becomes
    available before the auction. We find no reason, and McElroy
    provides none, to mandate that suggestions intended to assist
    potential bidders in the context of competitive bidding be used as a
    pre-condition to eligibility as an applicant in this proceeding.

31. Finally, we reject McElroy's argument that the public notice
    accepting its Quemado application for filing established a new
    cut-off deadline for WWC to amend the similar defects in its
    application.[^89] According to McElroy, "\[a\]ll interested parties
    were given notice of Station KNKR315's operational status on July
    17, \[2002\] when the Public Notice accepting McElroy's re-filed
    Quemado cell as a separate application was released."[^90] McElroy
    concludes that WWC was "clearly able" to amend its application
    within the 30 days of that public notice, but that WWC "never
    bothers to justify" amending its application beyond that 30-day
    period."[^91] McElroy's argument is not only legally unfounded, but
    seemingly at odds with its opposition to SBI's Quemado application.
    No Commission rule obligated WWC to meet a 30-day deadline based on
    the public notice accepting McElroy's Quemado application for
    filing. In fact, the Commission has clearly stated that the
    acceptance of a later application during a notice and cut-off period
    does not establish a later cut-off period.[^92] Staff sent WWC the
    letter dated July 25, 2002, directing WWC to amend its application
    to "demonstrate interference-free operation" at SBI's Datil site
    licensed as Station KNKR315. The letter granted WWC sixty days
    within which to submit its amendment. WWC filed its amendment and
    corresponding waiver request 20 days before that deadline. WWC
    therefore filed the requested information in a timely manner.
    Significantly, McElroy fails to explain why the 30-day period
    following the release of the public notice accepting its Quemado
    application for filing should apply to WWC's amended Quemado site,
    but not to SBI's separately filed Quemado application. We therefore
    deny McElroy's Informal Objection. We further grant WWC's request
    for waiver of Section 22.949(b)(3) of the Commission's rules, and
    accept for filing WWC's amended application filed on September 5,
    2002, which includes two separate CGSAs.

32. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 303(r),
    and 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 303(r), 309(d), and Sections 0.331 and 1.939 of the
    Commission's rules, 47 C.F.R. §§ 0.331, 1.939, the Petition to Deny
    filed by McElroy Electronics Corporation on September 20, 2002, and
    the Petition to Deny filed by WWC License L.L.C. on September 20,
    2002, are GRANTED.

33. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 303(r) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and Sections 0.331 and 1.934(a) of the Commission's rules,
    47 C.F.R. §§ 0.331, 1.934(a), the Application, File Number
    0000997158, filed by Smith Bagley, Inc. on August 14, 2002, is
    DISMISSED.

34. IT IS FURTHER ORDERED that, pursuant to Sections 4(i), 303(r), and
    309(d) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), 309(d), and Sections 0.331 and 1.939 of the
    Commission's rules, 47 C.F.R. §§ 0.331, 1.939, the Opposition filed
    by Smith Bagley, Inc. on October 3, 2002, is DISMISSED to the extent
    described herein.

35. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 303(r) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and Sections 0.331 and 1.41 of the Commission's rules, 47
    C.F.R. §§ 0.331, 1.41, the request filed by McElroy Electronic
    Corporation on September 25, 2002, to accept its Petition to Dismiss
    or Deny as an Informal Objection, is GRANTED.

36. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 303(r) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and Sections 0.331 and 1.41 of the Commission's rules, 47
    C.F.R. §§ 0.331, 1.41, the Informal Objection filed by McElroy
    Electronic Corporation on September 25, 2002, is DENIED.

37. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 303(r) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and Sections 0.331 and 1925 of the Commission's rules, 47
    C.F.R. §§ 0.331, 1.925, the Request for Waiver filed by WWC License
    L.L.C. on September 5, 2002, is GRANTED to the extent described
    herein.

38. IT IS FURTHER ORDERED that, pursuant to Sections 4(i) and 303(r) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and Sections 0.331 and 22.131 of the Commission's rules, 47
    C.F.R. §§ 0.331, 22.131, the Mobility Division shall process
    Application File Nos. 0000913369 and 0000959846, filed by McElroy
    Electronics Corporation on June 4, 2002, and July 11, 2002,
    respectively; File No. 0000922001, filed by Commnet Wireless, LLC on
    June 12, 2002; File No. 0000959430, filed by ALLTELL Communications
    of the Southwest Limited Partnership on July 11, 2002; File No.
    0000960815 filed by Smith Bagley, Inc. on July 12, 2002; and File
    No. 0000959496 filed by WWC License L.L.C., as amended on September
    5, 2002, in accordance with Commission rules.

FEDERAL COMMUNICATIONS COMMISSION

Cyndi Thomas

Assistant Chief, Mobility Division

Wireless Telecommunications Bureau

[^1]: Petition to Deny, filed by McElroy Electronics Corporation (Sept.
    20, 2002) (McElroy SBI Petition); Petition to Deny, filed by WWC
    License L.L.C. (Sept. 20, 2002) (WWC Petition).

[^2]: Petition to Dismiss or Deny of McElroy Electronics Corporation,
    filed by McElroy Electronics Corporation (Sept. 25, 2002) (McElroy
    Informal Objection). *See infra* at ¶ 24 (accepting SBI's Petition
    to Dismiss or Deny WWC's application as an Informal Objection to
    WWC's Waiver Request).

[^3]: 47 U.S.C. § 309(j); *see* 47 C.F.R. Part 1, Subpart Q, Competitive
    Bidding Procedures (implementing Section 309(j) of the
    Communications Act, as amended). Two or more pending applications
    are mutually exclusive if the grant of one application would
    effectively preclude the grant of one or more of the other
    applications. 47 C.F.R. § 22.131.

[^4]: 47 C.F.R. § 22.131(b).

[^5]: 47 C.F.R. § 22.131(c)(iii). The rule section provides for one
    exception: "for Phase I unserved area applications in the Cellular
    Radiotelephone Service, a one-day window filing group is used (see §
    22.949)." *Id*.

[^6]: 47 C.F.R. § 22.131(b).

[^7]: 47 C.F.R. § 22.131(c)(4)(ii)(A).

[^8]: Letter to Alee Cellular Communications from Katherine M. Harris,
    Deputy Chief, Commercial Wireless Division, Wireless
    Telecommunications Bureau (May 30, 2002).

[^9]: In re Applications of ALGREG Cellular Engineering, *Memorandum
    Opinion and Order and Order on Reconsideration*, 14 FCC Rcd 18524
    18533-35 (1999), *aff'd*, *Alee Cellular Communications v. FCC*,
    slip op., No. 99-1460 (D.C. Cir. Jan. 30, 2001), *reh'g denied*,
    (D.C. Cir. Apr. 5, 2001), *cert. denied*, (S. Ct. Oct. 9, 2001).

[^10]: The six sites were located in three counties: Socorro NM, Socorro
    County (Location 1); Cabello Mountain NM, Sierra County (Location
    2); Bernardo NM, Socorro County (Location 3); Truth or Consequences
    NM, Sierra County (Location 4); Belen NM, Valencia County (Location
    5); and San Antonio NM, Sierra County (Location 6).

[^11]: In late 2003, the Commission's Wireless Telecommunications Bureau
    was reorganized. Many of the mobile radio services licensing issues
    formerly under the Bureau's Commercial Wireless Division, including
    Part 22 cellular service operations, are now under the purview of
    the Bureau's Mobility Division. FCC's Wireless Bureau Announces
    Reorganization, *Public Notice* (rel. Nov. 24, 2003).

[^12]: Wireless Telecommunications Bureau Implements Revocation of
    Cellular Call Sign KNKN271 (NM3 RSA); Phase II Unserved Area
    Application Rules to be Applied, *Public Notice*, 17 FCC Rcd 10518
    (2002).

[^13]: Wireless Telecommunications Bureau Site-by-Site Accepted for
    Filing, *Public Notice*, Report No. 1201 (June 12, 2002).

[^14]: 47 C.F.R. § 22.131(b)(3).

[^15]: File No. 07639-CL-P1-95.

[^16]: The license for Station KNKR316 was granted in 1998, and the
    license for Station KNKN208 was granted in 1999, each with ten-year
    license terms.

[^17]: 47 C.F.R. § 22.946(a).

[^18]: 47 C.F.R. § 1.946(c) (formerly 47 C.F.R. § 22.144(b) (1998)).

[^19]: Letter from Roger S. Noel, Chief, Licensing & Technical Analysis
    Branch, Commercial Wireless Division to J. Justin McClure, Esq.,
    Counsel to Smith Bagley, Inc. (Aug. 7, 1998) (stating that "\[a\]
    review of Commission records indicates that an FCC Form 489 has not
    been filed within the 12 month period for station KNKR315 as
    required by Section 22.946(a) of the rules. In view of the foregoing
    and pursuant to Section 22.144(b) of the Commission's rules, the
    authorization for station KNKR315 is hereby terminated."); *Public
    Notice*, Report No. CWS-98-46 at 3 (Aug. 20, 1998) (listing
    07639-CL-P1-95, KNKR315, 555A1, Smith Bagley, Inc. as terminated by
    letter effective August 7, 1998).

[^20]: File No. 03925-CL-P2-98. Letter from J. Justin McClure, Esq.,
    Counsel for Smith Bagley, Inc. to Steven Weingarten, Chief,
    Commercial Wireless Division (Sept. 16, 1998).

[^21]: *Public Notice*, Report No. CWS-99-7 (Nov. 12, 1998). SBI later
    amended its license to reduce the service area boundary. The
    modification was granted on April 1, 1999.

[^22]: Only the site proposed in SBI's modified Phase II unserved area
    application is licensed under Station KNKR315.

[^23]: Petition to Dismiss or Deny, filed by Smith Bagley, Inc. (July
    11, 2002) (SBI July 11, 2002 Petition).

[^24]: FCC 601 Main Form, File No. 0000913369. The ten (10) proposed
    locations included: Bernardo NM, Socorro County (Location 1);
    Caballo NM, Sierra County (Location 2); Datil NM, Catron County
    (Location 3); Socorro NM, Socorro County (Location 4); Magdalena NM,
    Socorro County (Location 5); Belen NM, Valencia County (Location 6);
    Quemado NM, Catron County (Location 7);San Antonio NM, Socorro
    County (Location 8); Socorro NM, Socorro County (Location 9); and
    Truth or Consequences NM, Sierra County (Location 10).

[^25]: SBI is authorized to operate at a tower located approximately 9.7
    miles northwest of Datil NM, at the location coordinates of
    34-15-00.0 N, 107-57-17.0 W. McElroy proposed operations at the
    exact same location.

[^26]: 47 C.F.R. § 22.949(b)(3).

[^27]: In amending its application, FCC File No. 0000913369, McElroy
    also reduced power at the Magdalena site.

[^28]: FCC 601 Main Form, File No. 0000959846 (July 11, 2002).

[^29]: In re Application of McElroy Electronics Corporation For
    Authorization to Construct and Operate a Cellular Station in Market
    No. 555, New Mexico RSA 3, *Order*, 17 FCC Rcd 23657 (CWD 2002). In
    a letter filed on July 22, 2002, SBI acknowledged that McElroy's
    amended application fully protects SBI's Datil site from
    interference and voluntarily withdrew its Petition to Deny McElroy's
    application. Letter from Todd Slamowitz, Counsel for Smith Bagley,
    Inc., to Marlene Dortch, Secretary (July 22, 2002).

[^30]: FCC 601 Main Form, filed by Commnet Capital, LLC, File No.
    0000922001 (June 12, 2002). Commnet's application was accepted for
    filing on June 19, 2002, *Public Notice*, Report No. 1207 (June 19,
    2002).

[^31]: FCC 601 Main Form, File No. 0000959430 (July 11, 2002). ALLTEL's
    application was accepted for filing on July 17, 2002, Wireless
    Telecommunications Bureau Site-by-Site Accepted for Filing, *Public
    Notice*, Report No. 1231 at 27 (July 17, 2002) (*July 17, 2002
    Public Notice*).

[^32]: FCC 601 Main Form, File No. 0000959496 (July 11, 2002). WWC's
    application proposed ten sites, nine of which were identical in
    location to McElroy's proposals. WWC did not include the Bernardo
    NM, Socorro County location proposed in McElroy's application.
    Rather, WWC proposes a nearby site at Bosque NM in Socorro County
    (Location 1). WWC's application was accepted for filing on July 17,
    2002. *July 17, 2002 Public Notice* at 28-29.

[^33]: Letter to William J. Hackett, Western Wireless Corporation, from
    Michael A. Ferrante, Chief, Licensing and Technical Analysis Branch,
    Commercial Wireless Division (July 25, 2002).

[^34]: FCC File No. 0000959496, at Ex. 9, Request for Waiver of Section
    22.949(b)(3) at 2 (Waiver Request).

[^35]: Waiver Request at 3.

[^36]: McElroy Informal Objection at 1. WWC filed an opposition on
    October 9, 2002, Opposition to Petition to Dismiss or Deny, filed by
    WWC License L.L.C. (Oct. 9, 2002). McElroy filed a motion on October
    17, 2002, seeking an extension of time to October 28, 2002, for
    filing its reply, Motion for Extension of Time, filed by McElroy
    Electronics Corporation (Oct. 17, 2002). Counsel for WWC consented
    to the extension. We therefore grant the motion. McElroy filed its
    reply on October 28, 2002, Reply of McElroy Electronics Corporation
    to Opposition to Petition to Dismiss or Deny, filed by McElroy
    Electronics Corporation (Oct. 28, 2002) (McElroy Informal Reply).

[^37]: FCC 601 Main Form, File No. 0000960815 (July 12, 2002). SBI's
    initial application was also accepted for filing on July 17, 2002.
    *July 17, 2002 Public Notice* at 29-30.

[^38]: FCC 601 Main Form, File No. 0000997158 (Aug. 14, 2002). SBI's
    second application was accepted for filing on August 21, 2002.
    *Public Notice*, Report No. 1263 (Aug. 21, 2002).

[^39]: *July 17, 2002 Public Notice* at 29.

[^40]: SBI filed a consolidated opposition to both petitions to deny.
    Opposition to Petitions to Dismiss, filed by Smith Bagley Inc. (Oct.
    3, 2002) (SBI Opposition). McElroy and WWC separately filed replies
    to SBI's Opposition. Reply of McElroy Electronics Corporation to
    Opposition to Petition to Dismiss or Deny, filed by McElroy
    Electronics Corporation (Oct. 15, 2002) (McElroy SBI Reply); Reply
    to Opposition to Petitions to Dismiss or Deny, filed by WWC License
    L.L.C. (Oct. 16, 2002) (WWC Reply).

[^41]: *See Florida Institute of Technology v. FCC*, 952 F.2d 549 (D.C.
    Cir. 1992) (*Florida Institute*) (explaining that "\[i\]n response
    to the holding in *Ashbacker Radio Corp. v. FCC*, 326 U.S. 327
    (1945) that the Commission must afford a comparative hearing to
    mutually exclusive applications for a broadcast license, the
    Commission established various "cut-off" rules, so named because
    applicants filing before the deadlines are cut off from competition
    against late-filing parties).

[^42]: In re Applications of William G. Bowles, Jr. d/b/a Mid-Missouri
    Mobilfone, *Memorandum Opinion and Order and Order on
    Reconsideration*, 61 Rad. Reg. 2d 20 (CCB 1986) (*William G.
    Bowles*). To ensure consistent and impartial treatment of
    applicants, the Commission strictly enforces its cut-off rules even
    when enforcement causes harsh results in particular cases. *See*
    *Florida Institute*, 952 F. 2d at 550 (stating that to promote the
    purpose of the cut-off rules and "to ensure consistent and impartial
    treatment of applicants, the FCC has insisted on strict enforcement
    of the rules, even when this causes harsh results in particular
    cases) (citing *RKO General Inc. (WNAC-TV)*, 89 F.C.C. 2d 297, 321
    n.96 (1982); *Nazarene Theological Seminary Radio Corp. (KTSR)*, 52
    Rad Reg. (P&F) 559, 563 (Broadcast Bur. 1982)).

[^43]: Another way of explaining this principle is to state that the
    rule applies to applications proposing CGSAs that either directly or
    indirectly overlap with the CGSA proposed in the first-filed
    application.

[^44]: *William G. Bowles*, 61 Rad. Reg. 2d 20 (CCB 1986). In *William
    G. Bowles,* the Common Carrier Bureau dismissed the first-filed
    applicant's later-filed applications where those later-filed
    applications were mutually exclusive with a competing application
    that was filed within the notice and cut-off period of the original
    applicant's first-filed application, but the original applicant
    filed its later applications after the cut-off deadline of its own
    first-filed application. *Id*. at ¶ 13. Similarly, in *Pacific
    Bell*, the Mobile Services Division rejected the original
    applicant's later-filed application even after the applicant had
    voluntarily withdrawn its first-filed application. In that case, the
    later-filed application was mutually exclusive with a competing
    application that was filed within the notice and cut-off period of
    the original applicant's first-filed application and the original
    applicant filed its second application after the cut-off deadline
    established by its first-filed application. In re Application of
    Pacific Bell, *Memorandum Opinion and Order*, 3 FCC Rcd 3692 (MSD
    1988).

[^45]: 47 C.F.R. § 22.131(c)(3)(iii).

[^46]: SBI Opposition at 5-6.

[^47]: In the Matter of Plaincom, Inc., *Memorandum Opinion and Order*,
    15 FCC Rcd 11889 (2000) (*Plaincom*). *Plaincom* involved a
    first-filed application and Plaincom, Inc.'s competing application
    that was filed several weeks after the cut-off deadline. The
    competing application was dismissed as untimely and the first-filed
    application was subsequently dismissed as defective. Plaincom, Inc.
    appealed the dismissal of its application up to the Commission,
    arguing that the dismissal of the first-filed application cured the
    untimeliness of its own application. The Commission rejected
    Plaincom, Inc.'s argument.

[^48]: SBI Opposition at 6-7 (citing *Plaincom*, 15 FCC Rcd at 11892, ¶
    7). SBI takes the quote "whether an application is timely must be
    determined as of the time of filing, not by an event occurring after
    the cut-off date," from a portion of *Plaincom* where the Commission
    is summarizing a daisy chain case, *Leo V. Carmody*, In the Matter
    of Leo V. Carmody, *Memorandum Opinion and Order*, 4 FCC Rcd 5459,
    5460, ¶ 9 (CCB 1989). *Plaincom*, 15 FCC Rcd at 11892, *¶* 7. The
    Commission explicitly states that *Carmody* "did not involve the
    dismissal of a first-filed application; instead, it involved
    application of the daisy chain rule." *Id*. As the Commission
    explained, Leo V. Carmody filed an application to provide service in
    Greenville, New York. The Greenville application was mutually
    exclusive with a previously filed application to serve Monticello,
    New York. Although both applications were part of a daisy chain,
    neither application was the first-filed application. The Greenville
    application was timely with respect to the Monticello application,
    but was filed more than sixty days after the cut-off date of the
    first-filed application. After the Greenville application was filed,
    the Monticello application was dismissed. *Id*. The Commission
    affirmed in *Plaincom* that as a consequence of the dismissal of the
    Monticello application, the Greenville application was no longer
    part of a daisy chain with the first-filed application, so it did
    not have to be filed by the cut-off date established by that
    application. *Id*. SBI provides no analysis on how this case applies
    to the instant proceeding or any evidence that any event occurred
    after the cut-off date established by McElroy's first-filed
    application that would deem SBI's Quemado application as filed in a
    timely manner.

[^49]: SBI Opposition at 6.

[^50]: *Plaincom*, 15 FCC Rcd at 11893, ¶ 9.

[^51]: *Id*; *see William G. Bowles, Jr.*, 61 Rad. Reg. 2d at ¶ 13
    (stating that "\[t\]he subsequent dismissal of the first-filed
    application does not alter the applicable cut-off period").

[^52]: Minor amendments filed prior to a pending application being
    designated for hearing or listed in a public notice as accepted for
    filing for competitive bidding are permitted as a matter of right
    under Commission rules. 47 C.F.R. § 1.927.

[^53]: *See* 47 C.F.R. § 22.949(b)(2) (providing that "\[t\]here is no
    limit to the number of phase II applications that may be granted on
    each channel block in each market. ... \[m\]utually exclusive
    applications are processed using the general procedures in §
    22.131").

[^54]: SBI Opposition at 5-6.

[^55]: Formerly 47 C.F.R. § 22.31(c).

[^56]: SBI Opposition at 7-9.

[^57]: SBI Opposition at 7-9.

[^58]: In its Opposition, SBI explains that although it was aware of the
    defects in WWC's application, SBI elected not to file a petition to
    deny at the time WWC filed its application. SBI Opposition at 4.
    Specifically, SBI stated, that "\[p\]erfectly aware that WWC's
    application was defective, and believing that it had been returned,
    SBI did not consider a challenge to the application." *Id*.

[^59]: 47 C.F.R. § 1.939(a)(2).

[^60]: SBI Opposition at 8-9.

[^61]: 47 C.F.R. §§ 22.911-22.917.

[^62]: An applicant might withdraw its first-filed application or the
    Commission might dismiss the application before any mutually
    exclusive applications are filed, which could result in a new filing
    and a new notice and cut-off period, but that is not the situation
    in this case.

[^63]: SBI July 11, 2002 Petition at 2.

[^64]: We cannot disregard the diligence that each of the five
    applicants has shown in filing applications before the cut-off
    deadline established by McElroy's first-filed application. The
    Commission has long recognized that diligent applicants have a
    legitimate expectation that we will enforce the cut-off rules. *See
    Florida Institute of Technology v. FCC*, 952 F.2d 549, 554 (D.C.
    Cir. 1992) (stating that in contrast to the applicant that filed
    after the cut-off date, the applicant that filed a mutually
    exclusive application in a timely manner had "at all times complied
    with the cut-off rules and, as the Commission (and this court) has
    long recognized, such diligent applicants have a legitimate
    expectation that the cut-off rules will be enforced" (citing *City
    of Angels Broadcasting, Inc. v. FCC*, 745 F.2d 656, 663 (D.C. Cir.
    1984)).

[^65]: 47 C.F.R. § 1.934(a).

[^66]: Waiver Request at 2.

[^67]: 47 C.F.R. § 1.939(a)(2).

[^68]: McElroy Informal Reply at 2-3. McElroy contends that WWC's citing
    in this proceeding, specifically in its Petition to Deny SBI's
    application, to "the rules section directing the Commission to use
    [auctions]{.underline} when granting an application in a group of
    mutually exclusive applications, ... demonstrates that Section
    1.939(a)(2) is inapposite regarding the timeliness of McElroy's
    Petition." *Id*. at 3 (emphasis in original). We note that McElroy
    filed its Petition to Dismiss or Deny under Section 1.939 of the
    Commission's rules, 47 C.F.R. § 1.939. McElroy Informal Objection at
    1.

[^69]: McElroy Informal Reply at 3 (citing 47 C.F.R. § 22.131(d)(2)(i)).

[^70]: Section 1.929 of the Commission's rules, 47 C.F.R. 1.929, lists
    the actions classified as major. 47 C.F.R. § 1.929(a). Any change
    not specifically listed in Sections 1.929(a) through (j), including
    the deletion and reduction of cell sites in a pending application,
    is considered minor. *Id*. § 1.929(k).

[^71]: 47 C.F.R. § 1.947(a).

[^72]: McElroy Informal Reply at 4.

[^73]: McElroy Informal Objection at 4, n.8; McElroy Informal Reply at
    5.

[^74]: 47 C.F.R. § 1.41. Section 1.41 provides in relevant part,
    "\[e\]xcept where formal procedures are required under the
    provisions of this chapter, requests for action may be submitted
    informally." *Id*.

[^75]: 47 C.F.R. § 1.925.

[^76]: In the Matter of Amendment of Part 22 of the Commission's Rules
    to Provide for Filing and Processing of Applications of Unserved
    Areas in the Cellular Service and to Modify Other Cellular Rules,
    *Notice of Proposed Rulemaking*, 5 FCC Rcd 1044, 1045 ¶ 16 (1990).

[^77]: *Id*. The Commission repeated its underlying purpose of efficient
    processing of applications in adopting the rule section. In the
    Matter of Amendment of Part 22 of the Commission's Rules to Provide
    for Filing and Processing of Applications of Unserved Areas in the
    Cellular Service and to Modify Other Cellular Rules, *Report and
    Order and Memorandum Opinion and Order and Order on
    Reconsideration*, 6 FCC Rcd 6185 (1991). The cellular unserved area
    rules permitting only one CGSA per application were initially
    adopted in Section 22.902(b)(4).

[^78]: McElroy Informal Objection at 7.

[^79]: McElroy Informal Objection at 7.

[^80]: McElroy Informal Objection at 7. WWC states that "\[p\]rior to
    filing its application, \[it\] researched thoroughly to determine
    whether any licensees were operating or had rights to operate within
    the New Mexico 3 -- Catron RSA. \[WWC's\] research included a review
    of the FCC's ULS, paper and microfiche records, as well as
    commercially-available databases such as Berry Best. \[WWC\]
    determined that Smith Bagley had received an authorization for
    station KNKR315, and that the Commission had terminated the
    authorization for failure to construct prior to the expiration of
    the construction period on May 21, 1998. On September 16, 1998,
    Smith Bagley filed an application to modify its terminated station,
    but there was no evidence in the Commission's records that this, or
    any of Smith Bagley's proposals, had been constructed. In addition,
    ULS listed the authorization for station KNKR315 as 'Terminated.'
    Thus, \[WWC\] reasonably concluded that station KNKR315 was not
    operational, and applied to serve the subject areas." Waiver Request
    at 2. McElroy states that it "researched the same documents and
    sources mentioned by WWC and reached the same erroneous conclusions
    before filing its first application to serve the western portion of
    New Mexico RSA 3. McElroy Informal Objection at 7. Thus, according
    to McElroy, "WWC's claim that its experience was somehow unique
    collapses under scrutiny." *Id*.

[^81]: *See*, *e.g.*, In the Matter of National Exchange Carrier
    Association Petition to Amend Section 69.104 of the Commission's
    Rules, *Order Granting Petition for Rulemaking, Notice of Proposed
    Rulemaking, and Order Granting Interim Partial Waiver*, 19 FCC Rcd
    13591, 13604 and n.99 (2004) (granting, in relevant part, partial
    interim waiver of Section 69.104 of the Commission's rules to all
    similarly situated rate-of-return carriers, including those that did
    not formally request the waiver, that wish to avail themselves of
    the waiver); American Family Association, *Letter*, 19 FCC Rcd 18681
    (Sept. 22, 2004) (granting waiver of Section 1.2105(b)(2) of the
    Commission's rules for the petitioners and other similarly situated
    applicants because the circumstances unique to Auction 37 compel
    grant of the requested waiver as being in the public interest).

[^82]: McElroy Informal Objection at 7. WWC argues that it seeks waiver
    of Section 22.949(b)(3) of the Commission's rules because "it did
    not know, and could not reasonably have known, prior to filing its
    application that station KNKR315 was operational." Waiver Request at
    2-3.

[^83]: McElroy Informal Objection at 7-8; McElroy Informal Reply at 5-6.
    In response to WWC's statement in its Opposition that McElroy "does
    not assert that it was able to determine the status \[of Station
    KNKR315\] through publicly available information that WWC could have
    accessed," WWC Opposition at 5, McElroy simply reiterates that
    "McElroy's success conclusively proves that WWC's failure is no
    basis for a waiver," McElroy Informal Reply at 6.

[^84]: McElroy Informal Objection at 7.

[^85]: McElroy Informal Reply at 6. The "inconsistent information" to
    which McElroy refers in the ULS database is that SBI filed its Phase
    II modification application several weeks after the "cancellation
    date" of August 7, 1998. *Id*. While McElroy boasts that
    "confronting exactly the same facts," it "undertook additional
    research and was able to timely submit a fully compliant amendment."
    *Id*. We note, however, that confronted with the same facts, McElroy
    also submitted a completely defective application in the first place
    and only corrected its defects after publicly filing that
    application.

[^86]: McElroy Informal Reply at 6-7.

[^87]: McElroy Informal Reply at 7.

[^88]: McElroy Informal Reply at 7.

[^89]: McElroy Informal Objection at 5 and 8; McElroy Informal Reply at
    8.

[^90]: McElroy Informal Objection at 8.

[^91]: McElroy Informal Objection at 8; McElroy Informal Reply at 8.

[^92]: King Communications, Inc., *Memorandum Opinion and Order* *on
    Reconsideration*, 1986 WL 291849 (FCC) (CCB June 11, 1986).