**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  |                              |
|                                  | *) |                              |
| BARRY P. LUNDERVILLE,            | ** |                              |
|                                  |    |                              |
| CONNOISSEUR MEDIA, LLC,          | *  |                              |
|                                  | *) |                              |
| COLLEGE CREEK BROADCASTING,      | ** |                              |
| INC., CUMULUS LICENSING LLC, and |    |                              |
|                                  | *  |                              |
| KEMP COMMUNICATIONS, INC.        | *) |                              |
|                                  | ** |                              |
| Request to Reduce Bid Withdrawal |    |                              |
| Payments                         | *  |                              |
|                                  | *) |                              |
| CONNOISSEUR MEDIA, LLC           | ** |                              |
|                                  |    |                              |
| Petition for Reconsideration and | *  |                              |
| Request for Refund of Bid        | *) |                              |
| Withdrawal Payment               | ** |                              |
|                                  |    |                              |
| NASSAU BROADCASTING HOLDINGS,    | *  |                              |
| INC.                             | *) |                              |
|                                  | ** |                              |
| Petition for Reconsideration or, |    |                              |
| in the Alternative, Request for  | *  |                              |
| Waiver of Bid Withdrawal Payment | *) |                              |
| Rule                             | ** |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: July 2, 2008 Released: July 2, 2008**

By the Chief, Wireless Telecommunications Bureau:

# INTRODUCTION

1.  In this Order, we address several pleadings seeking relief from bid
    withdrawal payment obligations that the petitioners incurred under
    Section 1.2104(g) of the Commission's rules as a result of
    withdrawing provisionally winning bids in Auction No. 37, an auction
    of FM broadcast construction permits.[^1] Specifically, we
    address (1) a request filed on behalf of Barry P. Lunderville
    ("Lunderville"), Connoisseur Media, LLC ("Connoisseur"), College
    Creek Broadcasting, Inc. ("College Creek"), Cumulus Licensing LLC
    ("Cumulus"), and Kemp Communications, Inc. ("Kemp") (collectively,
    the "Joint Parties") seeking a reduction of the bid withdrawal
    payments they have been assessed;[^2] (2) a petition filed
    separately by Connoisseur, seeking reconsideration of the assessment
    of its bid withdrawal payment and a refund of the full amount of its
    payment;[^3] (3) a petition filed by Nassau Broadcasting Holdings,
    Inc. ("Nassau") in which Nassau seeks reconsideration of the
    assessment of its bid withdrawal payment and a reduction or
    cancellation of the payment or, in the alternative, a waiver of
    Section 1.2104(g)(1);[^4] and (4) an amendment to Nassau's petition,
    in which Nassau requests that its bid withdrawal payment be reduced
    to the amount of the interim bid withdrawal payment it has already
    paid to the Commission.[^5] In addition, we have before us a request
    filed on behalf of the Joint Parties seeking an extension of time to
    pay their bid withdrawal payments.[^6] For the reasons set forth
    below, we deny all of the petitions, including Nassau's amendment,
    and the Joint Parties' Request for Extension of Time.

# BACKGROUND

**A. The Bid Withdrawal Payment Rule, Auction No. 37, and the
Petitioners' Bid Withdrawal Payments**

2.  The Commission adopted Section 1.2104(g), which prescribes bid
    withdrawal payments, as part of its original competitive bidding
    rules. In doing so, the Commission explained that "\[a\]llowing
    bidders to withdraw bids without ever paying a penalty would
    encourage insincere bidding. Insincere bidding, whether purely
    frivolous or strategic, distorts the price information generated by
    the auction process and reduces its efficiency."[^7] The Commission
    also noted that bid withdrawal payments protect the government from
    the loss of revenue associated with bid withdrawals.[^8]

3.  Prior to Auction No. 37, which began on November 3, 2004, and
    concluded on November 23, 2004, the Wireless Telecommunications
    Bureau and the Media Bureau ("Bureaus") jointly released a public
    notice outlining the terms, conditions, and procedures for the
    auction.[^9] As with most previous auctions, the Bureaus announced
    that each bidder would be allowed to make limited use of bid
    withdrawals. The Bureaus specified that in Auction No. 37 each
    bidder would be permitted to withdraw a high bid in no more than two
    rounds.[^10] The *Auction No. 37 Procedures Public Notice* also
    explained that a "high bidder that withdraws its standing high bid
    from a previous round during the auction is subject to the bid
    withdrawal payments specified in 47 C.F.R. § 1.2104(g)."[^11] The
    *Auction No. 37 Procedures Public Notice* described how interim and
    final bid withdrawal payments would be calculated under Section
    1.2104(g)(1). Under this provision, if a high bid is withdrawn
    during an auction, the bid withdrawal payment is the difference
    between the withdrawn bid and the ultimate winning bid for the
    license or permit. If a license or permit remains unsold at the end
    of the auction in which the bid is withdrawn, an interim bid
    withdrawal payment is assessed, and the final bid withdrawal payment
    is calculated once the license or permit is sold in a subsequent
    auction.[^12] At the time of Auction No. 37, Section 1.2104(g)(1)
    provided that the interim bid withdrawal payment would be 3 percent
    of the withdrawn bid.[^13]

4.  During Auction No. 37, the petitioners withdrew provisionally
    winning bids that they had submitted in earlier rounds. The
    withdrawn bids that gave rise to the bid withdrawal payments we
    consider here are Lunderville's bid of \$422,000 on the Groveton,
    New Hampshire, permit, withdrawn in Round 42; Connoisseur's bid of
    \$893,750 on the Flasher, North Dakota, permit, withdrawn in Round
    36; College Creek's bid of \$1,339,000 on the Windsor, New York,
    permit and its bid of \$1,026,000 on the Blue Lake, California,
    permit, both withdrawn in Round 33; Cumulus's bid of \$1,461,000 on
    the Cannon Ball, North Dakota, permit, withdrawn in Round 61; Kemp's
    bid of \$1,796,250 on the Nanakuli, Hawaii, permit, withdrawn in
    Round 42; and Nassau's bid of \$822,000 on the Whitefield, New
    Hampshire, permit, withdrawn in Round 39.[^14] All of these permits
    remained unsold at the close of Auction No. 37.[^15] The Commission
    was therefore unable to calculate final bid withdrawal payments on
    these permits and instead imposed interim bid withdrawal payments of
    3 percent of the withdrawn bids. These interim bid withdrawal
    payments were announced on December 1, 2004, in a public notice
    announcing the close of the bidding in Auction No. 37.[^16]
    Lunderville's interim bid withdrawal payment was \$12,660;
    Connoisseur's was \$26,813; College Creek's were \$40,170 and
    \$30,780; Cumulus's was \$43,830; Kemp's was \$53,888; and Nassau's
    was \$24,660.[^17] Pursuant to Section 1.2104(g)(1), these amounts
    were deducted from the upfront payments the petitioners had
    submitted to qualify for participation in Auction No. 37.[^18]

5.  Each of the permits in question was won in Auction No. 62, an
    auction of FM broadcast construction permits that began on January
    12, 2006, and concluded on January 31, 2006.[^19] On February 8,
    2006, in a public notice announcing the close of the bidding in
    Auction No. 62, the Bureaus announced final bid withdrawal payments
    for bidders that had withdrawn bids in Auction No. 37 on
    construction permits that had sold in Auction No. 62, including the
    petitioners. For the bid withdrawals at issue here, Lunderville's
    final bid withdrawal payment was \$244,000; Connoisseur's final
    payment was \$609,750; College Creek's two final payments were
    \$794,000 and \$665,000; Cumulus's final payment was \$1,337,000;
    Kemp's final payment was \$112,250; and Nassau's final payment was
    \$626,000. Pursuant to Section 1.2104(g)(1), each of these amounts
    was the difference between the withdrawn bid and the ultimate
    winning bid for the permit.[^20] On October 31, 2006, the Commission
    issued a demand for payment letter to each of the petitioners,
    informing it of the amount of its final bid withdrawal payment or
    payments; each petitioner was instructed to pay the amount it owed,
    after subtracting its interim bid withdrawal payment or payments,
    within 30 days of the date of the letter.[^21]

    **B. The Petitioners' Requests**

6.  *The Joint Parties.* The Joint Parties style their pleading as a
    request for a reduction of their bid withdrawal payments.[^22]
    Asserting that the Commission has the discretion to decide whether
    or not to impose bid withdrawal payments, they ask the Commission to
    "exercise its discretion" and reduce each of their bid withdrawal
    payments from the amount calculated under Section 1.2104(g)(1) to
    the difference between the withdrawn bid and the next highest bid
    submitted for the relevant permit in Auction No. 37.[^23] The Joint
    Parties also request a waiver of Section 1.2104(g)(1) "to the extent
    necessary."[^24]

7.  According to the Joint Parties, the reduction of their bid
    withdrawal payments is warranted for several reasons. First, they
    argue that their bid withdrawal payments are individually and
    collectively "unconscionably excessive."[^25] Noting that each of
    the challenged payments is greater than \$100,000, they assert that
    these payments are disproportionately high given the history of bid
    withdrawal payments because their research shows that (1) there have
    been only "a small number of withdrawal payments that have totaled
    more than \$600,000"[^26] and (2) "the withdrawal payments assessed
    in Auction 37 represent a significantly higher percentage of the
    actual value of the permits than the withdrawal payments assessed in
    PCS auctions."[^27] Second, the Joint Parties contend that Auction
    No. 37 was an anomaly among auctions because it was the first
    broadcast auction in which bids were withdrawn and because six bid
    withdrawal payments over \$600,000 were assessed as a result of bid
    withdrawals in the auction.[^28]

8.  Third, the Joint Parties argue that a reduction of their bid
    withdrawal payments is appropriate because of the "specialized
    nature" of the FM broadcast service. According to the Joint Parties,
    FM broadcast service market conditions change from year to year to a
    greater degree than market conditions of other auctionable
    services.[^29] More specifically, they contend that the discrepancy
    in bids between Auction No. 37 and Auction No. 62 can be explained
    at least in part by the fact that (1) the value of a new FM station
    in a market is influenced by the characteristics of other FM
    stations in the market, (2) these characteristics---including
    station ownership, formats, and technical parameters---can change
    frequently, and (3) such characteristics are not shared by other
    auctionable services.[^30] At the same time, however, the Joint
    Parties assert that they could not have expected that the permits on
    which they withdrew bids would decrease in value as substantially as
    they did between Auction No. 37 and Auction No. 62.[^31] They also
    argue that the Commission could have avoided selling the permits in
    question in Auction No. 62 for substantially less than their
    withdrawn bids if it had awarded the permits to the next highest
    bidders in Auction No. 37.[^32]

9.  Fourth, the Joint Parties assert that the reduction of their bid
    withdrawal payments would not frustrate the purpose of the bid
    withdrawal payment rule because there are legitimate reasons for
    withdrawing bids, such as freeing up bidding units to bid on other
    permits.[^33] Although the Joint Parties do not claim that they all
    withdrew the bids at issue for this reason, they do assert that Kemp
    withdrew its high bid on the Nanakuli, Hawaii, permit solely in
    order to free up bidding units to bid on three other
    allotments.[^34] Similarly, they argue that Connoisseur withdrew its
    high bid for the Flasher, North Dakota, permit in order to free up
    bidding units to bid on another permit it valued more highly and
    that had become available at a price it could afford because of a
    withdrawn bid.[^35] The only explanation the Joint Parties provide
    regarding the rest of their withdrawn bids is that their decisions
    to withdraw were "based in part on the number of bidders willing to
    bid what the Joint Parties valued the permits."[^36] They further
    assert that "\[w\]hile the FCC may find the Joint Parties at fault
    for failing to perform adequate due diligence, the Joint Parties did
    not try to abuse the FCC's auction processes."[^37]

10. Finally, the Joint Parties contend that their bid withdrawal
    payments should be reduced because they have not violated any
    Commission rule and yet have been assessed bid withdrawal payments
    that are higher than "any forfeiture for a violation of the FCC's
    rules."[^38] "Even if the Commission believes that some gamesmanship
    was present," the Joint Parties assert, "these penalties far exceed
    any fine that may be assessed."[^39]

11. *Connoisseur Media, LLC.* Connoisseur, which is one of the Joint
    Parties, presents its separate request as a petition for
    reconsideration of the assessment of its bid withdrawal payment,
    citing the demand for payment letter issued to it on October 31,
    2006.[^40] In its petition, Connoisseur indicates that it has paid
    its bid withdrawal payment under protest, requests the rescission of
    the assessment, and seeks a full refund of its payment.[^41] In
    support of its request, Connoisseur reiterates a number of the
    arguments made by the Joint Parties, i.e., that its bid withdrawal
    payment is unconscionably large; that it could not foresee that the
    price of the Flasher, North Dakota, permit would decrease by as much
    as it did between Auction No. 37 and Auction No. 62; that it did not
    game the Commission's auction process; and that, even though it did
    not violate any Commission rule, it is being forced to pay an amount
    higher than any typical forfeiture imposed for a rule
    violation.[^42] Elaborating on the Joint Parties' explanation of its
    withdrawal of its provisionally winning bid on the Flasher permit,
    Connoisseur also states that it stopped bidding on the Augusta,
    Kansas, permit because the price for that permit became too high;
    that it consequently reduced its eligibility; that the standing high
    bid for the Augusta permit was then withdrawn; that it had
    insufficient eligibility to return to its previous position as
    standing high bidder on the Augusta permit without withdrawing its
    provisionally winning bid from another license; and that it
    therefore withdrew its bid on the Flasher permit.[^43]

12. Connoisseur asserts that its bid withdrawal payment should be
    rescinded because, but for the Commission's rules prohibiting the
    recovery of lost eligibility, it would not have incurred a bid
    withdrawal payment.[^44] According to Connoisseur, allowing bidders
    to recover lost eligibility, or to return to previously held
    positions as standing high bidders when others withdraw
    provisionally winning bids, would be preferable to imposing large
    bid withdrawal payments on small broadcasters who withdraw bids for
    valid reasons.[^45] In addition, Connoisseur contends that it has
    benefited the U.S. Treasury by ensuring that the Augusta permit was
    sold in Auction No. 37 rather than in a later auction, and for a
    higher price than would have been likely in a later auction.[^46]
    Finally, noting that the Commission decided not to allow bid
    withdrawals in FM broadcast Auctions No. 68 and 70, Connoisseur
    argues that Auction No. 37 was in effect a "test case" for certain
    procedures in broadcast auctions and that it would therefore be only
    fair for the Commission to rescind its bid withdrawal payment.[^47]

13. *Nassau Broadcasting Holdings, Inc.* In its initial request---which
    it styles as a petition for reconsideration of the demand for
    payment letter issued to it on October 31, 2006, or, in the
    alternative, a request for waiver of Section 1.2104(g)(1)---Nassau
    asks that its bid withdrawal payment be reduced or canceled.[^48] In
    support of its request, Nassau states that after bidding on both the
    Whitefield and Jefferson, New Hampshire, permits, whose allotments
    are close to each other, it withdrew its bid on the Whitefield
    permit to avoid the possibility of violating the Commission's
    multiple ownership rules.[^49] Citing *Atlanta Trunking Associates*,
    a case in which the Commission waived bid withdrawal payments
    assessed against bidders that had made typographical errors in
    submitting bids, Nassau argues that it should be granted the same
    relief because it withdrew its bid on the Whitefield permit in order
    to correct "a mistake that may have caused a violation of the
    Commission's multiple ownership rules."[^50] Nassau also states
    that, after considering the difficulties involved in obtaining the
    approval of local authorities to construct stations, it decided that
    "it was far more likely to be successful in obtaining zoning
    approval if it only requested approval of one, rather than two,
    tower locations."[^51] According to Nassau, it would be inequitable
    to penalize it for withdrawing a bid based on such considerations,
    "which are clearly beyond Nassau's control."[^52]

14.  Citing Section 1.925 of the Commission's rules, Nassau claims that
    it meets the Commission's standard for a waiver of Section
    1.2104(g)(1).[^53] More specifically, Nassau asserts that the
    imposition of a bid withdrawal payment in its case does not serve
    the underlying purpose of the rule, which is to deter insincere
    bidding. Nassau argues that it has demonstrated that it was a
    sincere bidder by winning two licenses in Auction No. 37.[^54]
    Nassau also maintains that it would be inequitable to apply the bid
    withdrawal payment rule to it in this case because it took steps to
    ensure both compliance with the Commission's rules and service to
    the public.[^55] Finally, Nassau asserts that it had no reasonable
    alternative to withdrawing its bid for the Whitefield permit once it
    realized that it faced the possibility of violating the multiple
    ownership rules and that it would be unlikely to obtain local
    governmental approval for two stations in New Hampshire.[^56]

15. In its amendment to its petition, Nassau argues that it should
    receive the same relief we granted in *Advance*, a case decided
    after Nassau filed its petition.[^57] In *Advance*, we waived the
    portion of Section 1.2104(g)(1) that prescribes final bid withdrawal
    payments, with the result that the petitioner was required to pay
    only the amount of the interim bid withdrawal payment it had been
    assessed.[^58] Reiterating its argument that it meets the
    Commission's waiver standard under Section 1.925, Nassau further
    contends in its amendment that "\[t\]he facts surrounding Nassau's
    bid withdrawal more strongly support a waiver of the bid withdrawal
    rule than the facts in the *Advance Order*."[^59] According to
    Nassau, this is so because it withdrew its high bid due to a mistake
    (bidding on permits for two allotments in the same New Hampshire
    county) that might have caused it to violate a Commission rule,
    whereas Advance withdrew its high bid due to a mistake (relying on
    engineering software that yielded incorrect results) that meant only
    that it could not make the station economically attractive through
    an upgrade.[^60]

16. Nassau acknowledges in its amendment that its bid withdrawal payment
    is not as high as the final bid withdrawal payment that we waived in
    *Advance*, which was over \$4 million and which we waived because it
    was the only bid withdrawal payment ever assessed that both exceeded
    \$4 million and represented more than 200 percent of the ultimate
    winning bid for the permit or license.[^61] Nassau nevertheless
    argues that its final bid withdrawal payment of \$626,000 should be
    reduced to \$24,660, the amount of its interim bid withdrawal
    payment, because \$626,000 represents 319 percent of the ultimate
    winning bid for the Whitefield permit. According to Nassau, a bid
    withdrawal payment of more than 300 percent of the winning bid for
    the permit is inequitable "in the face of clear evidence that Nassau
    was not 'gaming' the auction system."[^62]

# DISCUSSION

17. Before considering the substantive arguments the petitioners
    present, we address the procedural posture of their requests for
    relief. Notwithstanding the different ways in which they have styled
    their requests for either reductions or cancellations of their bid
    withdrawal payments, we consider all of these petitions as requests
    for waiver of Section 1.2104(g) of the Commission's rules. We do not
    consider them as petitions for reconsideration of the October 31,
    2006, letters sent to the petitioners.

18. We note first that the letters sent to the petitioners on October
    31, 2006, were demand for payment letters issued pursuant to Section
    1.1911 of the Commission's rules.[^63] These letters were
    ministerial in nature, informing the petitioners of the amount of
    their final bid withdrawal payments already established under
    Section 1.2104(g)(1) and announced in the *Auction No. 62 Closing
    Public Notice*, and providing them with certain other information
    about their debt.[^64] Because the petitioners have not alleged that
    these letters contained any errors, they have not provided any basis
    for reconsideration of the letters.

19. We also reject the Joint Parties' assertion that Section
    1.2104(g)(1) provides the Commission, or the Bureau under delegated
    authority, with the discretion to decide whether or not to impose a
    bid withdrawal payment.[^65] Section 1.2104(g) states unequivocally
    that "the Commission *will impose* payments on bidders who withdraw
    high bids during the course of an auction."[^66] The Commission has
    the authority to waive its rules, but neither it nor the Bureau may
    decide, absent a finding that the rule should be waived under the
    appropriate standard, that the provisions of Section 1.2104(g)
    should not be applied. The Joint Parties and Nassau explicitly
    request a waiver of Section 1.2104(g)(1); Connoisseur does not.
    However, Connoisseur's petition is equivalent to such a waiver
    request because it seeks a rescission and refund of its bid
    withdrawal payment. We therefore consider all of the requests for
    reductions or cancellations of bid withdrawal payments before us as
    requests for either partial or complete waivers of Section 1.2104(g)
    of the Commission's rules.

20. To obtain a waiver of the bid withdrawal payment rule, a petitioner
    in the FM broadcast service must demonstrate that special
    circumstances warrant a deviation from the rule, or that such a
    deviation would serve the public interest.[^67] We find that none of
    the petitioners has demonstrated any special circumstances
    justifying a deviation from Section 1.2104(g)(1) or that a deviation
    from this rule would be in the public interest. We therefore
    conclude that none of the bid withdrawal payments at issue here
    should be waived either in part or in whole. We turn now to an
    examination of the petitioners' individual arguments.

21. *The Joint Parties.* We disagree with the Joint Parties' assertion
    that their bid withdrawal payments are individually and collectively
    excessive.[^68] In adopting the bid withdrawal payment rule, the
    Commission recognized that bid withdrawal payments that were too
    high would be detrimental to the auction process because they would
    tend to discourage the efficient aggregation of licenses.[^69] In
    establishing guidelines for assessing bid withdrawal payments where
    bidders made typographical errors in submitting bids, the Commission
    also explained that it wished to provide for bid withdrawal payments
    in such cases that were "substantial enough to discourage strategic
    placement of erroneous bids without being so severe as to impose an
    untenable burden on bidders."[^70] Although neither the efficient
    aggregation of licenses nor bid withdrawal payments triggered by
    typographical errors are at issue here, we find that the
    Commission's dual goal of deterring insincere bidding while avoiding
    excessive burdens on bidders remains relevant to auctions
    generally.[^71] We find here that none of the Joint Parties' bid
    withdrawal payments is so high as to constitute a special
    circumstance warranting either a partial or complete waiver of the
    amount assessed.

22. First, we find that the total amount of the six bid withdrawal
    payments the Joint Parties challenge, which is \$3,773,000, is
    irrelevant to a consideration of whether these bid withdrawal
    payments are too high. Consistent with the purpose of Section
    1.2104(g), bid withdrawal payments are calculated on a
    license-by-license basis. In other words, where a bidder withdraws
    bids on multiple licenses or permits, the calculation of a bid
    withdrawal payment is made separately for each license or
    permit.[^72] The aggregate amount of certain bid withdrawal payments
    owed by different selected parties has no significance, and it would
    be entirely arbitrary for us to consider the Joint Parties' bid
    withdrawal payments collectively. Thus, while it is not
    inappropriate for the Joint Parties to file a joint request for
    relief presenting a single set of arguments, we find that their
    assertion that their bid withdrawal payments are collectively
    excessive is misplaced.

23. Second, we find that none of the Joint Parties' individual bid
    withdrawal payments is excessive. As noted above, in *Advance* we
    found that a bid withdrawal payment that exceeded \$4 million and
    represented more than 200 percent of the ultimate winning bid for
    the construction permit was unnecessarily high to achieve the
    purpose of Section 1.2104(g)(1).[^73] In reaching this finding, we
    explained that the bid withdrawal payment in question was the only
    bid withdrawal payment ever assessed that exceeded both \$4 million
    and 200 percent of the winning bid; we also noted that, if we were
    to enforce it, it would be the highest bid withdrawal payment, as an
    absolute number, ever imposed in the history of the auctions
    program.[^74] In reaching our decision, we found that neither a bid
    withdrawal payment of over \$4 million that is less than 200 percent
    of the ultimate winning bid for the permit or license, nor a bid
    withdrawal payment that is over 200 percent of the winning bid for
    the permit or license but under \$4 million, is *per se*
    excessive.[^75] In reviewing the bid withdrawal payments at issue
    here, we continue to hold this view.

24. Three of the bid withdrawal payments we consider here represent more
    than 200 percent of the winning bids for the permits.[^76] All of
    the challenged bid withdrawal payments, however, are well below the
    \$4 million bid withdrawal payment we waived in *Advance*. Indeed,
    the highest bid withdrawal payment assessed against any of the
    petitioners is \$1,337,000, which we do not consider an excessive
    amount, and the rest of the bid withdrawal payments at issue are
    considerably lower than that. The Joint Parties argue that their bid
    withdrawal payments are excessive because they are greater than
    \$100,000 and because there have previously been only a small number
    of bid withdrawal payments over \$600,000.[^77] We find, however,
    that such amounts are not necessarily out of line with the purpose
    of the bid withdrawal payment rule.

25. Bid withdrawal payments must be substantial enough to deter
    insincere bidding, whether such bidding is strategic in nature or
    based on inadequate due diligence or planning. The Joint Parties
    argue that their bid withdrawal payments should be reduced even
    though "the FCC may find \[them\] at fault for failing to perform
    adequate due diligence."[^78] We disagree. Bidders that bid too much
    for a license or permit based on inadequate due diligence may
    distort price information, to the detriment of auction efficiency,
    as do bidders that place insincere bids for strategic reasons. In
    addition to the obvious possible harm of keeping the second highest
    bidder from winning a license which it should have been able to win,
    inflated bidding may adversely affect auction participants in more
    subtle ways.  For example, other bidders may react to the inflated
    price signals, believing them to be true signals of value, by
    switching their bidding strategies away from comparable licenses on
    which they may have placed the highest value, or by overbidding in
    turn on other licenses.  Moreover, we reject the Joint Parties'
    suggestion that their bid withdrawal payments should be reduced
    "\[e\]ven if the Commission believes that some gamesmanship was
    present."[^79] To the extent bidders purposefully engage in
    strategic insincere bidding, they should be held fully accountable
    for their actions. Indeed, the Joint Parties' suggestion that the
    Commission should reduce bid withdrawal payments even where bidders
    perform inadequate due diligence or engage in gamesmanship
    underlines the importance of assessing bid withdrawal payments that
    are substantial enough to deter such behavior. We make no findings
    regarding either the Joint Parties' due diligence or possible
    gamesmanship on their part; however, we do find that, in light of
    the purpose of Section 1.2104(g)(1), their bid withdrawal payments
    are not excessive.

26. We also find no merit in the Joint Parties' contention that their
    bid withdrawal payments are excessive because the bid withdrawal
    payments incurred in Auction No. 37 represent a higher percentage of
    the value of the permits than the bid withdrawal payments incurred
    in PCS auctions.[^80] Although we found in *Advance* that a \$4
    million bid withdrawal payment was exceptionally high in part
    because it was 200 percent of the winning bid for the construction
    permit and the other \$4 million bid withdrawal payments that had
    been assessed previously were less than 5 percent of the winning
    bids for the licenses,[^81] we find that comparisons of bid
    withdrawal payments between auctions or services generally are not a
    valid basis for reducing individual bid withdrawal payments. The
    ratios of bid withdrawal payments to winning bids will inevitably
    vary from one auction to another and may also be different among
    services. Such variations and differences, which are undoubtedly the
    result of a complex variety of factors, do not necessarily mean that
    any individual bid withdrawal payments are excessive or inequitable.
    We therefore find that only in very exceptional circumstances will
    the comparison of ratios of bid withdrawal payments to winning bids
    among auctions or services constitute a basis for reconsidering a
    bid withdrawal payment calculated pursuant to Section 1.2104(g)(1),
    and we find no exceptional circumstances here.

27. We turn now to the Joint Parties' remaining arguments. We do not
    agree that the Joint Parties' bid withdrawal payments should be
    reduced because Auction No. 37 was the first broadcast auction in
    which bids were withdrawn and bid withdrawal payments were assessed,
    or because of the "concentration of high withdrawal payments," as
    they assert.[^82] Neither of these facts renders Auction No. 37 so
    different from all other Commission auctions that a deviation from
    the normal application of Section 1.2104(g)(1) to the Joint Parties
    is justified. The fact that Auction No. 37 was the first open FM
    broadcast auction does not justify a reduction of the Joint Parties'
    bid withdrawal payments. For every type of auction the Commission
    decides to conduct, there has to be a first such auction held.
    Furthermore, the bid withdrawal payment rule for Auction No. 37 was
    not new; it had been adopted many years before the auction, and all
    auction participants should have been familiar with it. In addition,
    we find that the occurrence of several bid withdrawal payments of
    over \$600,000 in an auction is not by itself a circumstance that is
    sufficiently exceptional to warrant a deviation from the bid
    withdrawal payment rule. The behavior of bidders can vary among
    auctions, as can the results of auctions. The withdrawal payment
    rule applies to all auctions in which withdrawals are permitted and
    variations among auctions do not necessarily constitute special
    circumstances warranting deviations from the Commission's rules.

28. We also reject the Joint Parties' argument that a reduction of their
    bid withdrawal payments is appropriate because of the "specialized
    nature" of the FM broadcast service.[^83] The value of licenses in
    other services can and does fluctuate from one auction to another
    because of factors similar to those involved in the FM broadcast
    service. Thus, although wireless communications operators do not
    offer "formats" of the kind radio stations do, they nonetheless
    offer services that can be packaged differently and that can change
    from one year to the next, which may affect competing service
    providers. In addition, just as the ownership of radio stations
    changes, the ownership of wireless licenses can change from year to
    year, which may affect market conditions. We therefore find the
    Joint Parties' assertion that broadcast service market conditions
    change from year to year to a greater degree than the market
    conditions of other auctionable services to be unsupported. We also
    find their contention that they could not have expected the permits
    on which they withdrew bids to decrease in value as much as they did
    between Auction No. 37 and Auction No. 62 to be misplaced; the
    possibility that license values will fluctuate over time is a risk
    that bidders in all auctions face, regardless of the service
    involved.

29. In addition, we do not accept the Joint Parties' claim that the
    Commission could have avoided selling the permits in question for
    substantially less than their withdrawn bids if it had awarded the
    permits to the next highest bidders in Auction No. 37.[^84]
    According to the Joint Parties, the Commission could have done this
    under Section 1.2109(b) of its rules.[^85] The Joint Parties
    acknowledge that Section 1.2109(b) applies to winning bidders that
    withdraw bids *after* the close of an auction or fail to remit their
    required down payments on time, but they assert that this "does not
    seem to preclude the FCC from awarding a permit to the next highest
    bidder when a high bid is withdrawn during an auction and no
    subsequent bids are placed."[^86] We disagree. Section 1.2109(b) by
    its terms provides the Commission with the discretion to award a
    permit or license to the next highest bidder in an auction when the
    winning bidder withdraws its winning bid after the auction closes;
    Section 1.2104(g), which governs cases in which a provisionally
    winning bid is withdrawn during an auction, does not provide the
    Commission with such discretion. We may not read such discretion
    into Section 1.2104(g), nor may we apply Section 1.2109(b) to
    situations governed by Section 1.2104(g).

30. We agree with the Joint Parties that there are legitimate reasons
    for withdrawing bids, such as freeing up bidding units to pursue
    alternative bidding strategies. We also accept at face value their
    assertions that Kemp and Connoisseur withdrew the provisionally
    winning bids at issue for this reason.[^87] We find, however, that
    the withdrawal of a bid for such a reason does not constitute a
    special circumstance; to the contrary, this kind of bid withdrawal
    is both expected and commonplace in Commission auctions. Similarly,
    we find nothing remarkable about the Joint Parties' statement that
    their decisions to withdraw bids were "based in part on the number
    of bidders willing to bid what the Joint Parties valued the
    permits."[^88] As noted above, the Joint Parties suggest that they
    may not have performed adequate due diligence in preparing for
    Auction No. 37.[^89] We lack sufficient information to make any such
    findings on this point. We find, however, that, even assuming
    adequate due diligence and an absence of insincere bidding on their
    part, the Joint Parties' asserted reasons for withdrawing their bids
    do not constitute special circumstances that would warrant a
    deviation from the bid withdrawal payment rule.

31. We also do not accept the Joint Parties' argument that their bid
    withdrawal payments should be reduced or waived because they are
    higher than forfeitures imposed for violations of the Commission's
    rules.[^90] As we explained in *Advance*, the statutory and
    regulatory provisions that govern such forfeitures have different
    purposes than the Commission's bid withdrawal payment rule.[^91]
    Moreover, the factors involved in any particular forfeiture case
    will be different from the factors involved in the assessment of a
    bid withdrawal payment under Section 1.2104(g)(1). Any comparison of
    forfeitures and bid withdrawal payments is therefore irrelevant to a
    consideration of the equitableness of the latter.[^92]

32. Finally, we find that the Joint Parties have not justified an
    extension of time in which to pay their bid withdrawal payments. The
    demand letters of October 31, 2006, provided them with 30 days from
    the date of the letters to submit their final payments in full.[^93]
    In their Request for Extension of Time, the Joint Parties request an
    additional 90 days, i.e., until February 28, 2007. In making this
    request, they state that, if their request for a reduction of their
    bid withdrawal payments is granted, the amount each party owes will
    be significantly reduced.[^94] Three of the Joint
    Parties---Connoisseur, Cumulus, and Kemp---nevertheless paid their
    final bid withdrawal payments within 30 days of the date of the
    demand letters. The Joint Parties' Request for Extension of Time is
    therefore moot with respect to these three parties. Because it
    presents no facts that warrant providing either of the other Joint
    Parties with additional time in which to pay their bid withdrawal
    payments, we deny the Joint Parties' Request for Extension of Time
    as it applies to Lunderville and College Creek.[^95]

33. *Connoisseur Media, LLC.* As noted above, Connoisseur makes
    arguments in its individual petition that are in addition to those
    already made by the Joint Parties. We find that these arguments fail
    to describe any special circumstances that warrant a deviation from
    Section 1.2104(g)(1). First, we reject Connoisseur's assertion that
    its bid withdrawal payment should be rescinded because it would not
    have incurred this payment if it had been allowed to recover the
    eligibility it had lost before withdrawing its bid on the Flasher,
    North Dakota, permit.[^96] Prior to Auction No. 37, the Bureaus
    sought comment on proposed activity rules for the auction, including
    a requirement that auction participants bid on construction permits
    representing 100 percent of their bidding units in each round of the
    auction in order to maintain the bidding eligibility established by
    their upfront payments. The Bureaus explained that, under this
    proposal, failure to maintain the requisite activity level would
    result in either the use of one of the bidder's limited number of
    activity rule waivers, if the bidder had not used them all, or a
    permanent reduction in the bidder\'s eligibility.[^97] Connoisseur
    did not comment on or object to these proposed rules, which were
    adopted for the auction.[^98] Its argument that the procedures
    applied during the auction were flawed is therefore untimely.
    Moreover, the activity rules and bid withdrawal procedures applied
    in Auction No. 37 were applied to all participants. We therefore
    find that Connoisseur's reduced eligibility during Auction No. 37 is
    not an unusual circumstance and does not justify a rescission of its
    bid withdrawal payment.

34. Second, we disagree with Connoisseur's contention that its bid
    withdrawal payment should be waived because it benefited the U.S.
    Treasury by ensuring that the Augusta permit was won in Auction No.
    37 rather than in a subsequent auction, and for a higher price than
    would have been likely in a later auction.[^99] The fact that
    Connoisseur won a permit other than the one on which it withdrew a
    provisionally winning bid is not a special circumstance. Bidders may
    frequently win one permit or license after withdrawing a bid on
    another. If we were to waive the bid withdrawal payment rule each
    time this happened, the rule would no longer function as intended to
    deter insincere bidding. Connoisseur's claim that it won the Augusta
    permit at a price higher than would have been likely in a later
    auction is therefore not only speculative but also irrelevant to the
    application of Section 1.2104(g)(1).

35. Finally, we do not accept Connoisseur's argument that its bid
    withdrawal payment should be rescinded because Auction No. 37 was in
    effect a "test case" for bid withdrawals in broadcast
    auctions.[^100] Connoisseur is correct that the Bureaus decided not
    to allow bid withdrawals in Auctions No. 68 and 70, FM broadcast
    auctions that were held after Auction No. 37.[^101] Connoisseur is
    incorrect, however, in describing Auction No. 37 as a test case for
    certain procedures in broadcast auctions. The Commission had,
    consistent with its well-established approach to non-broadcast
    auctions, permitted bid withdrawals in previous broadcast
    auctions.[^102] The Bureaus decided to prohibit bid withdrawals in
    Auction No. 68 and Auction No. 70 primarily because they found that
    there was evidence suggesting that bid withdrawals may have been
    used for anticompetitive purposes in previous FM broadcast
    auctions.[^103] The Bureaus' decision to prohibit bid withdrawals in
    light of this evidence does not support Connoisseur's claim that
    Auction No. 37 was a test case for auction procedures; the Bureaus'
    decision is simply one instance in which auction procedures have
    been adjusted in response to behaviors on the part of bidders.[^104]
    Therefore, as we have already indicated, we find nothing unusual
    about Auction No. 37 that would warrant a waiver of Section
    1.2104(g)(1).[^105]

36. *Nassau Broadcasting Holdings, Inc.* Nassau has also failed to
    present any special circumstances that warrant a deviation from
    Section 1.2104(g)(1). We do not accept Nassau's characterization of
    its bid on the Whitefield, New Hampshire, permit as a mistake
    similar to the typographical errors involved in *Atlanta Trunking
    Associates.*[^106] Nassau suggests that it realized only during the
    course of Auction No. 37 that winning both the Whitefield and
    Jefferson, New Hampshire, permits might cause it to violate the
    Commission's multiple ownership rules.[^107] However, Nassau knew or
    should have known the requirements of these rules when it began
    bidding in Auction No. 37, and it should have planned its bidding
    strategy accordingly.[^108] To the extent Nassau determined that it
    should change its bidding strategy during the auction, or decided
    that its initial bidding strategy was a mistake, it could have
    avoided these circumstances by determining at the outset of the
    auction that, if it bid on both the Whitefield and Jefferson
    permits, it might risk violating the Commission's multiple ownership
    rules.

37. Similarly, Nassau should have taken into consideration all zoning
    laws relevant to its plans before it began bidding in Auction
    No. 37. Although government approval of tower locations may be
    beyond the control of any particular bidder, all bidders are
    responsible for their bidding strategies. If Nassau thought it was
    more likely to obtain approval of one tower location, rather than
    two, it could and should have made this assessment prior to the
    start of bidding.

38. We also find that the application of the bid withdrawal payment rule
    to Nassau in this case serves the underlying purpose of the rule,
    which is to deter insincere bidding. Contrary to Nassau's claim, its
    having won two construction permits in Auction No. 37 does not
    demonstrate that it bid sincerely. Moreover, Nassau, by its own
    arguments, has shown that it did not adequately plan its bidding
    strategy and placed bids before properly taking into consideration
    laws and regulations that it knew or should have known about before
    the commencement of the auction. In light of these circumstances,
    its bid withdrawal payment is not inequitable.

39. Turning to Nassau's amendment to its original petition, we reject
    Nassau's argument that it should be granted the same relief that we
    granted in *Advance.* In *Advance* we waived the petitioner's final
    bid withdrawal payment because we found that it was exceptionally
    high; more specifically, it was the only bid withdrawal payment ever
    assessed in the history of the auctions program that exceeded both
    \$4 million and 200 percent of the ultimate winning bid for the
    permit or license.[^109] Nassau's bid withdrawal payment of
    \$626,000 is significantly below \$4 million. Nassau therefore is
    not similarly situated with the petitioner in *Advance.* Moreover,
    we explained in *Advance* that neither a bid withdrawal payment of
    over \$4 million that is less than 200 percent of the ultimate
    winning bid for the permit or license, nor a bid withdrawal payment
    that is over 200 percent of the winning bid for the permit or
    license but under \$4 million, is necessarily excessive or out of
    line with the Commission's goals in imposing bid withdrawal
    payments.[^110] Therefore, our decision in *Advance* provides no
    precedent for a finding here that Nassau's final bid withdrawal
    payment is exceptionally high or constitutes a special circumstance
    under the Commission's waiver standard.

40. Furthermore, Nassau's amendment presents no reason why we should
    find either that the amount of its final bid withdrawal payment is
    inconsistent with the Commission's goals in imposing bid withdrawal
    payments or that a deviation from the bid withdrawal rule is
    warranted in its case. Nassau claims that its bid withdrawal payment
    of more than 300 percent of the winning bid for the permit is
    inequitable "in the face of clear evidence that Nassau was not
    'gaming' the auction system."[^111] We do not agree that Nassau has
    submitted unambiguous evidence that it did not withdraw its
    provisionally winning bid on the Whitefield permit for strategic
    reasons. Moreover, as we have already explained, Nassau knew or
    should have known the requirements of the Commission's rules, and
    should have taken into consideration all zoning laws relevant to its
    plans, before it began bidding in Auction No. 37. In any event, we
    need not and do not make any findings regarding Nassau's motivations
    for withdrawing its provisionally winning bid on the Whitefield
    permit. As we have already indicated, bidders that bid too much for
    a license or permit based on inadequate due diligence or planning
    may distort price information, to the detriment of auction
    efficiency, in the same way as bidders that place insincere bids for
    strategic reasons.[^112] Other bidders may react to the faulty price
    signals, believing them to be true signals of value, by modifying
    their bidding behavior on other licenses in ways that interfere with
    the auction's ability to assign licenses to the highest valuing
    bidders.  Therefore, in order for the bid withdrawal payment rule to
    achieve its underlying purpose, bid withdrawal payments must be
    substantial enough to deter bidding based on inadequate planning and
    should not be reduced to reward such behavior.

41. Finally, Nassau's contention that it is more deserving of a waiver
    of the bid withdrawal rule than the petitioner in *Advance*, because
    its bid withdrawal was occasioned by a mistake that could have
    resulted in a violation of the Commission's rules and Advance's was
    not, is without merit.[^113] We made clear in *Advance* that our
    decision to waive the final bid withdrawal payment in that case was
    based on no other reason than the fact that the bid withdrawal
    payment at issue was the only one ever assessed that exceeded both
    \$4 million and 200 percent of the ultimate winning bid for the
    permit.[^114] We also emphasized that we did not consider Advance's
    allegations of mistake to be a justification for a waiver of the bid
    withdrawal payment rule.[^115] Nassau's comparison of its mistake
    with that alleged by Advance is therefore misplaced. Just as we
    found in *Advance* that all participants in Commission auctions are
    responsible for performing adequate due diligence in deciding
    whether and how much to bid for any particular construction permit
    or license, so we find here.[^116]

# Conclusion

42. For the reasons discussed above, we conclude that all of the
    petitioners have failed to demonstrate facts supporting either a
    partial or complete waiver of Section 1.2104(g). The petitioners
    have not shown any special circumstances that would justify a
    deviation from Section 1.2104(g), nor have they shown that a
    deviation from this rule would be in the public interest. We
    therefore deny all of the petitions before us seeking relief from
    the rule.

43. Finally, we conclude that the Joint Parties' Request for Extension
    of Time is moot with respect to Connoisseur, Cumulus, and Kemp. We
    deny the Joint Parties' Request for Extension of Time as it applies
    to Lunderville and College Creek. These two parties' unpaid bid
    withdrawal payments, which were delinquent debts as of October 31,
    2006, are subject to collection action as required under the Debt
    Collection Improvement Act of 1996, as amended ("DCIA").[^117]
    Interest, penalties, and administrative charges continue to accrue,
    and the debtors are subject to other administrative procedures to
    enforce collection.[^118] If Lunderville and College Creek fail to
    make full payment of their outstanding debt obligations, as detailed
    in the Bid Withdrawal Payment Demand Letters, the Commission will,
    within 30 days of the date of this Order, transfer the full amount
    of the outstanding debt to the United States Department of Treasury
    for debt collection and other administrative or judicial
    action.[^119]

# Ordering clauseS

44. Accordingly, IT IS ORDERED pursuant to Sections 4(i), 303(r), and
    309(j) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 303(r), and 309(j), and Sections 1.3 and 1.1204(g)(1) of the
    Commission\'s rules, 47 C.F.R. §§ 1.3 and 1.1204(g)(1), that the
    request for reduction of bid withdrawal payments filed on behalf of
    Barry P. Lunderville, Connoisseur Media, LLC, College Creek
    Broadcasting, Inc., Cumulus Licensing LLC, and Kemp Communications,
    Inc., on November 20, 2006, IS DENIED.

45. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 309(j)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and 309(j), and Sections 1.3 and 1.1204(g)(1) of the
    Commission\'s rules, 47 C.F.R. §§ 1.3 and 1.1204(g)(1), that the
    Petition for Reconsideration filed on behalf of Connoisseur Media,
    LLC, on November 20, 2006, IS DENIED.

46. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 309(j)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and 309(j), and Sections 1.3 and 1.1204(g)(1) of the
    Commission\'s rules, 47 C.F.R. §§ 1.3 and 1.1204(g)(1), that the
    Petition for Reconsideration or, in the Alternative, Request for
    Waiver of Bid Withdrawal Penalty Rule, filed on behalf of Nassau
    Broadcasting Holdings, Inc., on November 30, 2006, and the Amendment
    to Petition for Reconsideration or, in the Alternative, Request for
    Waiver of Bid Withdrawal Penalty Rule, filed on behalf of Nassau
    Broadcasting Holdings, Inc., on February 25, 2008, ARE DENIED.

47. IT IS FURTHER ORDERED pursuant to Sections 4(i), 303(r), and 309(j)
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and 309(j), and Section 1.1204(g)(1) of the Commission\'s
    rules, 47 C.F.R. § 1.1204(g)(1), that the Request for Extension of
    Time filed on behalf of Barry P. Lunderville, Connoisseur Media,
    LLC, College Creek Broadcasting, Inc., Cumulus Licensing LLC, and
    Kemp Communications, Inc., on November 20, 2006, IS MOOT with
    respect to Connoisseur Media, LLC, Cumulus Licensing LLC, and Kemp
    Communications, Inc., and IS DENIED with respect to Barry P.
    Lunderville and College Creek Broadcasting, Inc.

48. This action is taken under delegated authority pursuant to Section
    0.331 of the Commission's rules, 47 C.F.R. § 0.331.

FEDERAL COMMUNICATIONS COMMISSION

James D. Schlichting

Acting Chief, Wireless Telecommunications Bureau

**Appendix**

For each of the bid withdrawal payments at issue in this Order, the
table below shows the amount of the bid the petitioner withdrew in
Auction No. 37, the interim bid withdrawal payment, the winning bid for
the construction permit in Auction No. 62, and the final bid withdrawal
payment*.* As explained above, College Creek, Cumulus, and Kemp withdrew
other high bids during Auction No. 37, but those withdrawn bids are not
at issue in this Order either because the permits received winning bids
for amounts equal to or greater than the withdrawn bids and therefore no
bid withdrawal payments were incurred or because the withdrawing bidders
have not challenged the bid withdrawal payments incurred.[^120]

+--------------+------------+--------------+------------+------------+
| **Petitioner | *          | **Interim    | **Winning  | **Final    |
| Name**       | *Withdrawn | Bid          | Bid(s) in  | Bid        |
|              | Bid(s) in  | Withdrawal   | Auction    | Withdrawal |
|              | Auction    | Payment(s)** | No. 62**   | Pa         |
|              | No. 37**   |              |            | yment(s)** |
+==============+============+==============+============+============+
| Barry P.     | \$422,000  | \$12,660     | \$178,000  | \$244,000  |
| Lunderville  | (Groveton, |              |            |            |
|              | NH)        |              |            |            |
+--------------+------------+--------------+------------+------------+
| Connoisseur  | \$893,750  | \$26,813     | \$284,000  | \$609,750  |
| Media, LLC   |            |              |            |            |
|              | (Flasher,  |              |            |            |
|              | ND)        |              |            |            |
+--------------+------------+--------------+------------+------------+
| College      | \          | \$40,170     | \$545,000  | \$794,000  |
| Creek        | $1,339,000 |              |            |            |
| B            | (Windsor,  | \$30,780     | \$361,000  | \$665,000  |
| roadcasting, | NY)        |              |            |            |
| Inc.         |            |              |            |            |
|              | \          |              |            |            |
|              | $1,026,000 |              |            |            |
|              |            |              |            |            |
|              | (Blue      |              |            |            |
|              | Lake, CA)  |              |            |            |
+--------------+------------+--------------+------------+------------+
| Cumulus      | \          | \$43,830     | \$124,000  | \          |
| Licensing,   | $1,461,000 |              |            | $1,337,000 |
| LLC          |            |              |            |            |
|              | (Cannon    |              |            |            |
|              | Ball, ND)  |              |            |            |
+--------------+------------+--------------+------------+------------+
| Kemp         | \          | \$53,888     | \          | \$112,250  |
| Com          | $1,796,250 |              | $1,684,000 |            |
| munications, |            |              |            |            |
| Inc.         | (Nanakuli, |              |            |            |
|              | HI)        |              |            |            |
+--------------+------------+--------------+------------+------------+
| Nassau       | \$822,000  | \$24,660     | \$196,000  | \$626,000  |
| Broadcasting |            |              |            |            |
| Holding,     | (W         |              |            |            |
| Inc.         | hitefield, |              |            |            |
|              | NH)        |              |            |            |
+--------------+------------+--------------+------------+------------+

[^1]: 47 C.F.R. § 1.2104(g).

[^2]: Letter from Barry P. Lunderville; David Oxenford and Brendan
    Holland, Counsel for Connoisseur Media, LLC; Aaron Shainis, Counsel
    for College Creek Broadcasting, Inc.; Mark N. Lipp, Edgar Class, and
    Scott Woodworth, Counsel for Cumulus Licensing LLC; and James
    Koerner, Counsel for Kemp Communications, Inc., to Margaret W.
    Wiener, Chief, Auctions and Spectrum Access Division, Wireless
    Telecommunications Bureau, Federal Communications Commission, filed
    November 20, 2006 ("Joint Parties' Petition"). Connoisseur Media,
    LLC, participated in Auction No. 37 under its former name,
    Bigglesworth Broadcasting, LLC ("Bigglesworth"). Public notices and
    other documents associated with the auction therefore refer to the
    company as Bigglesworth.

[^3]: Connoisseur Media, LLC, Petition for Reconsideration and Request
    for Refund of Bid Withdrawal Payment, filed November 30, 2006
    ("Connoisseur Petition")*. See supra* note 2 regarding Connoisseur's
    name change.

[^4]: Nassau Broadcasting Holdings, Inc., Petition for Reconsideration
    or, in the Alternative, Request for Waiver of Bid Withdrawal Penalty
    Rule, filed November 30, 2006 ("Nassau Petition").

[^5]: Nassau Broadcasting Holdings, Inc., Amendment to Petition for
    Reconsideration or, in the Alternative, Request for Waiver of Bid
    Withdrawal Penalty Rule, filed February 25, 2008 ("Nassau Amendment
    to Petition").

[^6]: Letter from Denise Moline, Counsel for Advance Acquisition, Inc.;
    Barry P. Lunderville; David Oxenford and Brendan Holland, Counsel
    for Connoisseur Media, LLC; Aaron Shainis, Counsel for College Creek
    Broadcasting, Inc.; Mark N. Lipp, Edgar Class, and Scott Woodworth,
    Counsel for Cumulus Licensing LLC; and James Koerner, Counsel for
    Kemp Communications, Inc., to Rita Cookmeyer, Auctions and Spectrum
    Access Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, filed November 20, 2006 ("Joint Parties'
    Request for Extension of Time"). As discussed below, the Joint
    Parties request 90 additional days beyond the 30 days provided to
    them to submit their bid withdrawal payments. *See infra* para.
    32*.* Advance Acquisition, Inc., a party to the Joint Parties'
    Request for Extension of Time, did not join the Joint Parties'
    petition seeking a reduction of their bid withdrawal payments and
    instead filed separate requests for waiver of the bid withdrawal
    payment it incurred in Auction No. 37. *See* Advance Acquisition,
    Inc., *Order*, 22 FCC Rcd 18,846 (WTB 2007) ("*Advance*").

[^7]: Implementation of Section 309(j) of the Communications Act --
    Competitive Bidding, *Second Report and Order,* 9 FCC Rcd 2348, 2373
    ¶ 147 (1994) ("*C**ompetitive Bidding Second Report and Order*")*.*

[^8]: *Id.* at 2374 ¶ 152.

[^9]: Auction of FM Broadcast Construction Permits Scheduled for
    November 3, 2004; Notice and Filing Requirements, Minimum Opening
    Bids, Upfront Payments and Other Auction Procedures, *Public
    Notice*, 19 FCC Rcd 10,570 (WTB/MB 2004) ("*Auction No. 37
    Procedures Public Notice*").

[^10]: *Id.* at 10,602-04.

[^11]: *Id.* at 10,603. Section 1.2104(g) provides that "the Commission
    will impose payments on bidders who withdraw high bids during the
    course of an auction, or who default on payments due after an
    auction closes or who are disqualified." 47 C.F.R. § 1.2104(g).
    Section 1.2104(g)(1) prescribes the method of calculating the
    payment that is imposed when a bid is withdrawn prior to the close
    of an auction. 47 C.F.R. § 1.2104(g)(1).

[^12]: As the *Auction No. 37 Procedures Public Notice* explained, the
    interim payment is applied toward any final bid withdrawal payment
    that is assessed after the construction permit is sold. *Auction No.
    37 Procedures Public Notice,* 19 FCC Rcd at 10,604. Where a bid that
    is higher than the withdrawn bid is subsequently submitted in the
    same auction, no bid withdrawal payment is assessed. 47 C.F.R. §
    1.2104(g)(1); *Auction No. 37 Procedures Public Notice*, 19 FCC Rcd
    at 10,603.

[^13]: In 2006, the Commission amended Section 1.2104(g)(1) to raise the
    3 percent limit on interim bid withdrawal payments to 20 percent. In
    doing so, the Commission noted that there had been a
    disproportionate number of bid withdrawals late in auctions,
    indicating that some bidders had been placing and then withdrawing
    bids primarily to discourage potential or existing market
    competitors from seeking to acquire licenses, and expressed its
    continuing concern that bid withdrawals weaken the integrity of the
    auctions process and impede the deployment of service to the public.
    Implementation of the Commercial Spectrum Enhancement Act and
    Modernization of the Commission's Competitive Bidding Rules and
    Procedures, *Report and Order*, 21 FCC Rcd 891, 901-04 ¶¶ 24-32
    (2006). The Commission, as part of its determination of competitive
    bidding procedures in advance of each auction, now establishes the
    appropriate level, from 3 percent up to a maximum of 20 percent, at
    which to set interim bid withdrawal payments. *Id.* at 903-04 ¶ 31.

[^14]: The amounts of these withdrawn bids, the ultimate winning bids
    for the construction permits in question, and the interim and final
    bid withdrawal payments incurred as a result of these withdrawn bids
    are shown in a table in the Appendix in addition to being discussed
    in the text of this Order. College Creek also withdrew bids on three
    other permits in Auction No. 37. These permits received winning bids
    in Auction No. 37 for less than College Creek's withdrawn bids, and
    bid withdrawal payments were assessed. College Creek did not seek
    relief from these payments. Cumulus also withdrew bids on three
    other permits in Auction No. 37. Two of these permits received
    winning bids in Auction No. 62 for amounts equal to or greater than
    Cumulus's withdrawn bids, and therefore the Commission assessed no
    bid withdrawal payments. The other permit was sold in Auction No. 62
    for less than Cumulus's withdrawn bid, and a bid withdrawal payment
    was assessed. Cumulus did not seek relief from this payment. Kemp
    withdrew bids on four other permits in Auction No. 37. One of these
    permits received a winning bid in Auction No. 37 and two of these
    permits received winning bids in Auction No. 62 for amounts equal to
    or greater than Kemp's withdrawn bids, and therefore the Commission
    assessed no bid withdrawal payments. The other permit was sold in
    Auction No. 62 for less than Kemp's withdrawn bid, and a bid
    withdrawal payment was assessed. Kemp did not seek relief from this
    payment.

[^15]: *See* FM Broadcast Construction Permits Auction Closes; Auction
    No. 37 Winning Bidders Announced; Payment and Application Deadlines
    Established, *Public Notice*, 20 FCC Rcd 1021, Attachment A (WTB/MB
    2004) ("*Auction No. 37 Closing Public Notice*").

[^16]: *Id.*, Attachment C.

[^17]: *Id*.

[^18]: Section 1.2104(g)(1) provides: "The withdrawal payment amount is
    deducted from any upfront payments or down payments that the
    withdrawing bidder has deposited with the Commission." 47 C.F.R. §
    1.1204(g)(1).

[^19]: The Groveton, New Hampshire, permit sold for \$178,000; the
    Flasher, North Dakota, permit sold for \$284,000; the Windsor, New
    York, permit sold for \$545,000; the Blue Lake, California, permit
    sold for \$361,000; the Cannon Ball, North Dakota, permit sold for
    \$124,000; the Nanakuli, Hawaii, permit sold for \$1,684,000; and
    the Whitefield, New Hampshire, permit sold for \$196,000. Auction of
    FM Broadcast Construction Permits Closes; Winning Bidders Announced
    for Auction No. 62, *Public Notice*, 21 FCC Rcd 1071, Attachment A
    (WTB/MB 2006) ("*Auction No. 62 Closing Public Notice*").

[^20]: *Id.,* Attachment D. Section 1.2104(g)(1) states: "In the event
    that a bidding credit applies to any of the bids, the bid withdrawal
    payment is either the difference between the net withdrawn bid and
    the subsequent net winning bid, or the difference between the gross
    withdrawn bid and the subsequent gross winning bid, whichever is
    less." 47 C.F.R. § 1.1204(g)(1). Kemp qualified for a 25 percent
    bidding credit in Auction No. 37. The winning bidder for the
    Nanakuli, Hawaii, permit in Auction No. 62, Big D Consulting, Inc.,
    was initially found to be qualified for a 35 percent bidding credit.
    The Commission therefore initially calculated Kemp's bid withdrawal
    payment for the Nanakuli permit as \$701,650, which was the
    difference between Kemp's net withdrawn bid and Big D Consulting,
    Inc.'s net winning bid, and announced this amount in Attachment D of
    the *Auction No. 62 Closing Public Notice.* Following the release of
    the *Auction No. 62 Closing Public Notice*, Big D Consulting, Inc.,
    became ineligible for the bidding credit it had initially qualified
    for, and it paid the gross winning bid amount for the Nanakuli
    permit. Accordingly, Kemp's bid withdrawal payment for the permit
    was reduced to \$112,250*. See* Letter from Rita Cookmeyer,
    Financial Policy Analyst, Auctions and Spectrum Access Division,
    Wireless Telecommunications Bureau, Federal Communications
    Commission, to Will Kemp, President, Kemp Communications, Inc.,
    dated October 31, 2006, at 2 n.6.

[^21]: Letter from Rita Cookmeyer, Financial Policy Analyst, Auctions
    and Spectrum Access Division, Wireless Telecommunications Bureau,
    Federal Communications Commission, to Barry P. Lunderville, dated
    October 31, 2006; Letter from Rita Cookmeyer, Financial Policy
    Analyst, Auctions and Spectrum Access Division, Wireless
    Telecommunications Bureau, Federal Communications Commission, to
    Jeffrey D. Warshaw, Bigglesworth Broadcasting, LLC, dated October
    31, 2006; Letter from Rita Cookmeyer, Financial Policy Analyst,
    Auctions and Spectrum Access Division, Wireless Telecommunications
    Bureau, Federal Communications Commission, to Neal J. Robinson,
    President, College Creek Broadcasting, Inc., dated October 31, 2006;
    Letter from Rita Cookmeyer, Financial Policy Analyst, Auctions and
    Spectrum Access Division, Wireless Telecommunications Bureau,
    Federal Communications Commission, to Lewis W. Dickey, Cumulus
    Licensing LLC, dated October 31, 2006; Letter from Rita Cookmeyer,
    Financial Policy Analyst, Auctions and Spectrum Access Division,
    Wireless Telecommunications Bureau, Federal Communications
    Commission, to Will Kemp, President, Kemp Communications, Inc.,
    dated October 31, 2006 (collectively, "Bid Withdrawal Payment Demand
    Letters").

[^22]: Joint Parties' Petition at 1.

[^23]: *Id*. In support of their assertion that the Commission may
    decide whether or not to impose bid withdrawal payments, the Joint
    Parties cite the language in Section 1.2104(g)(1) stating that a
    bidder that withdraws a bid during an auction is "subject to" a bid
    withdrawal payment. *Id.* at 1 n.4.

[^24]: *Id*.

[^25]: *Id.* at 4-5.

[^26]: *Id.* at 4.

[^27]: *Id.* at 5.

[^28]: *Id.* at 3, 4.

[^29]: *Id.* at 6-7.

[^30]: *Id.* at 6.

[^31]: *Id.* at 8.

[^32]: *Id.* at 7.

[^33]: *Id.* at 7-9.

[^34]: *Id.* at 8.

[^35]: *Id.* at 9.

[^36]: *Id.* at 7.

[^37]: *Id.* at 9.

[^38]: *Id.* at 6.

[^39]: *Id.* at 10.

[^40]: Connoisseur Petition at 1.

[^41]: *Id.* at 1, 5, 8.

[^42]: *Id.* at 5.

[^43]: *Id.* at 2-3.

[^44]: *Id.* at 6.

[^45]: *Id.*

[^46]: *Id.* at 2, 5.

[^47]: *Id.* at 6-7.

[^48]: Nassau Petition at 1-2. In its initial request Nassau does not
    specify how it believes a reduction of its bid withdrawal payment
    should be calculated.

[^49]: *Id.* at 3.

[^50]: *Id.* at 3-4 (citing Atlanta Trunking Associates, Inc. and MAP
    Wireless L.L.C.; Georgia Independent PCS Corporation, *Memorandum
    Opinion and Order*, 12 FCC Rcd 6382 (1997) ("*Atlanta Trunking
    Associates*")).

[^51]: *Id.* at 5.

[^52]: *Id.* at 2, 5.

[^53]: *Id.* at 5-6. Section 1.925 of the Commission's rules applies to
    wireless radio services licenses. 47 C.F.R. § 1.925. This waiver
    standard and the waiver standard applied to broadcasters, which is
    discussed *infra* at para. 20, have been found to be substantially
    the same. *See* In re Application of Delta Radio, Inc*.*,
    *Memorandum Opinion and Order*, 18 FCC Rcd 16,889, 16,891 ¶ 7 (2003)
    ("*Delta Radio*") (citing *Bellsouth Corporation v. FCC*, 162 F.3d
    1215, 1225 n.10 (D.C. Cir. 1999)). Nassau asserts that, for the same
    reasons it meets the waiver standard prescribed in Section 1.925, it
    also meets the general "good cause" standard for obtaining a waiver
    of the Commission's rules under 47 C.F.R. § 1.3. Nassau Petition at
    5-6 n.13; Nassau Amendment to Petition at 1-2 n.2, 4 n.10.

[^54]: Nassau Petition at 6. Nassau won construction permits for
    Jefferson, New Hampshire, and Hardwick, Vermont. *Auction No. 37
    Closing Public Notice*, 20 FCC Rcd 1021, Attachment A.

[^55]: Nassau Petition at 6*.*

[^56]: *Id.*

[^57]: *See supra* note 6.

[^58]: *Advance*, 22 FCC Rcd at 18,846 ¶ 1, 18,853 ¶¶ 15, 16. The final
    bid withdrawal payment assessed against Advance was \$4,616,000;
    Advance's interim bid withdrawal payment, which we did not waive and
    which Advance paid, was \$205,500. *Id.* at 18,847-48 ¶¶ 3-4.

[^59]: Nassau Amendment to Petition at 4.

[^60]: *Id.* at 4-5.

[^61]: *Id.* at 2,5.

[^62]: *Id.* at 5-6.

[^63]: 47 C.F.R. § 1.1911.

[^64]: For example, the letters explained the basis of the petitioners'
    debt and provided information regarding interest, penalties, and
    administrative costs.

[^65]: *See supra* para. 6.

[^66]: 47 C.F.R. § 1.2104(g) (emphasis added).

[^67]: *Delta Radio*, 18 FCC Rcd at 16,891 ¶ 7. *See also Northeast
    Cellular Telephone Co. v. FCC*, 897 F.2d 1164, 1166 (D.C. Cir. 1990)
    (citing *WAIT Radio v. FCC*, 418 F.2d 1153, 1157-59 (D.C. Cir.
    1969)); 47 C.F.R. § 1.3 ("Any provision of the rules may be waived .
    . . on petition if good cause therefor is shown.").

[^68]: Joint Parties' Petition at 4-5.

[^69]: The Commission explained, "In either sequential or simultaneous
    auctions, a bidder may bid high on one property in the expectation
    that it will also win a complementary property, only to find that it
    is outbid on the complementary property. If the penalty for bid
    withdrawal is too high, bidders will tend to be too cautious in
    attempting to aggregate licenses." *Competitive Bidding Second
    Report and Order*, 9 FCC Rcd at 2373 ¶ 148.

[^70]: Atlanta Trunking Associates, Inc. and MAP Wireless L.L.C.,
    *Order*, 11 FCC Rcd 17,189, 17,198 ¶ 19 (1996). In certain early bid
    withdrawal cases involving typographical errors, bid withdrawal
    payments calculated under Section 1.2104(g)(1) might have amounted
    to tens of millions of dollars because bidders added extra zeroes to
    bids.

[^71]: Bidders do not normally seek to aggregate construction permits in
    broadcast auctions such as Auction No. 37 in the same way they may
    seek to aggregate wireless communications licenses, and none of the
    petitioners argues that it was in fact attempting to aggregate
    permits. The cases before us also do not involve facts similar to
    the cases in which auction participants submitted erroneous bids due
    to typographical errors. Following the submission of mistaken bids
    that contained typographical errors in the early years of the
    auctions program, the Commission implemented various system
    enhancements to reduce the possibility of such types of erroneous
    bids. *See, e.g.,* *Atlanta Trunking Associates*, 12 FCC Rcd at 6388
    ¶ 11. Typographical errors have ceased to be a problem in Commission
    auctions.

[^72]: The Commission has never calculated bid withdrawal payments on
    other than a license-by-license basis. Moreover, the Commission has
    refused to calculate default payments under Section 1.2104(g)(2) on
    an aggregate basis because to do so would minimize the impact of the
    default payment rule. *See* BDPCS, Inc., *Memorandum Opinion and
    Order*, 15 FCC Rcd 17,590, 17,602-03 ¶¶ 20-23 (2000) (rejecting
    argument that where bidder had defaulted on multiple licenses, its
    default payments should be considered in the aggregate and "gains"
    realized from the subsequent auction of some licenses should be used
    to offset "losses" incurred on others); Amendment of Part 1 of the
    Commission's Rules -- Competitive Bidding Procedures, *Order on
    Reconsideration of the Third Report and Order, Fifth Report and
    Order, and Fourth Further Notice of Proposed Rule Making*, 15 FCC
    Rcd 21,293, 15,327-29 ¶¶ 68-73 (2000) (declining to modify Section
    1.2104(g) to provide that, where winning bidder defaults on multiple
    licenses, default payment would be calculated on aggregate basis,
    because doing so might encourage insincere bidding). The same
    reasoning is applicable to bid withdrawal payments under Section
    1.2104(g)(1).

[^73]: *Advance*, 22 FCC Rcd at 18,850 ¶ 7.

[^74]: *Id.* at 18,851 ¶ 9.

[^75]: *Id.* at 18,851-52 ¶ 10.

[^76]: Connoisseur's bid withdrawal payment is 215 percent of the
    winning bid for the Flasher, North Dakota, permit. Nassau's bid
    withdrawal payment is 319 percent of the winning bid for the
    Whitefield, New Hampshire, permit. Cumlulus's bid withdrawal payment
    is 1078 percent of the winning bid for the Cannon Ball, North
    Dakota, permit.

[^77]: Joint Parties' Petition at 4.

[^78]: *Id.* at 9.

[^79]: *Id.* at 10.

[^80]: *Id.* at 5.

[^81]: *Advance*, 22 FCC Rcd at 18,851-52 ¶¶ 9-10.

[^82]: Joint Parties' Petition at 3, 4.

[^83]: *Id.* at 6-7.

[^84]: *Id.* at 7.

[^85]: 47 C.F.R. § 1.2109(b).

[^86]: Joint Parties' Petition at 7 n.19.

[^87]: *Id.* at 8-9.

[^88]: *Id.* at 7.

[^89]: *Id.* at 9.

[^90]: *Id.* at 6.

[^91]: *Advance*, 22 FCC Rcd at 18,852 ¶ 12.

[^92]: *Id.*

[^93]: Bid Withdrawal Payment Demand Letters, *supra* note 20, at 2.

[^94]: Joint Parties' Request for Extension of Time at 1.

[^95]: As explained in the Bid Withdrawal Payment Demand Letters, under
    31 U.S.C. § 3717 unpaid debts owed the United States are subject to
    interest, penalties, and administrative costs from the date of
    delinquency. In this instance, the debts were delinquent if not paid
    in full on or before October 31, 2006. *See* Bid Withdrawal Payment
    Demand Letters, *supra* note 20, at 2. Because Connoisseur, Cumulus,
    and Kemp paid the full amount due within 30 days of October 31,
    2006, under 31 U.S.C. § 3717(d) these three parties were not charged
    interest and they incurred no penalties or administrative costs.

[^96]: Connoisseur Petition at 6.

[^97]: Consistent with their general practice, in their Public Notice
    seeking comment on procedures for the auction the Bureaus proposed
    that the amount of the upfront payment submitted by each bidder
    would determine the maximum number of bidding units on which that
    bidder would be permitted to place bids, and that this limit would
    define the bidder's initial eligibility. Revised Inventory and
    Auction Start Date for FM Broadcast Construction Permits; Auction
    Rescheduled for November 3, 2004; Comment Sought on Reserve Prices
    or Minimum Opening Bids and Other Auction Procedures, *Public
    Notice*, 19 FCC Rcd 6907, 6911 (WTB/MB 2004) ("*Auction No. 37
    Comment Public Notice*").

[^98]: *Auction No. 37 Procedures Public Notice*, 19 FCC Rcd at 10,593,
    10,595-96. Connoisseur also did not comment on the Bureaus' proposal
    to allow auction participants to withdraw high bids in two rounds of
    the auction. *See Auction No. 37 Comment Public Notice*, 19 FCC Rcd
    at 6916.

[^99]: Connoisseur Petition at 2, 5.

[^100]: *Id.* at 6-7.

[^101]: Auction of FM Broadcast Construction Permits Scheduled for
    January 10, 2007; Notice and Filing Requirements, Minimum Opening
    Bids, Upfront Payments and Other Procedures for Auction No. 68,
    *Public Notice*, 21 FCC Rcd 11,144, 11,179-80 ¶ 144 (WTB/MB 2006);
    Auction of FM Broadcast Construction Permits Scheduled for March 7,
    2007; Notice and Filing Requirements, Minimum Opening Bids, Upfront
    Payments and Other Procedures for Auction No. 70, *Public Notice*,
    21 FCC Rcd 12,957, 12,995 ¶ 163 (WTB/MB 2006) ("*Auction No. 70
    Procedures Public Notice*").

[^102]: Bid withdrawals had been permitted, for example, in Auction No.
    25. Closed Broadcast Auction; Notice and Filing Requirements for
    Auction of AM, FM, TV, LPTV, and FM and TV Translator Construction
    Permits Scheduled for September 28, 1999; Minimum Opening Bids and
    Other Procedural Issues, *Public Notice*, 14 FCC Rcd 10,632,
    10,665-66 (WTB/MMB 1999).

[^103]: In proposing to prohibit bid withdrawals in Auction No. 68, the
    Bureaus noted that the permits being offered in the auction were
    permits for which provisionally winning bids had been withdrawn in
    previous FM broadcast auctions, in some cases in successive auctions
    by the same bidders, and that allowing bidders further opportunities
    to withdraw bids on these permits might encourage insincere bidding
    or the use of withdrawals for anticompetitive purposes. Auction of
    FM Broadcast Construction Permits Scheduled for January 10, 2007;
    Comment Sought on Competitive Bidding Procedures for Auction No. 68,
    *Public Notice*, 21 FCC Rcd 9482, 9489 (WTB/MB 2006). In prohibiting
    bid withdrawals in Auction No. 70, the Bureaus noted again that some
    bidders in previous FM broadcast auctions may have used the bid
    withdrawal mechanism improperly to keep new facilities out of the
    hands of competitors, thus delaying new service. *Auction No. 70
    Procedures Public Notice*, 21 FCC Rcd at 12,995 ¶ 163. As
    Connoisseur indicates, the Bureaus also stated their conclusion that
    bid withdrawals are unnecessary in FM broadcast auctions because
    bidders do not need to aggregate permits to realize the full value
    of the stations or to put the spectrum to effective and efficient
    use. *Id.*

[^104]: Another example of such an adjustment to auction procedures is
    the institution of click-box bidding in 1997. In the first few years
    of the auctions program, the bid submission screen provided an entry
    field in which bidders typed their bids. This system allowed for
    typographical errors and permitted bidders to signal bidding
    information to other bidders in violation of the Commission's
    anti-collusion rules by embedding such information in the digits of
    their bids. The Commission eliminated these problems and simplified
    bidding by instituting the provision of click boxes in which bidders
    check minimum acceptable bid amounts. *See* FCC Announces Changes to
    Auction Procedures for the 800 MHz SMR Auction (Auction No. 16),
    *Public Notice*, 12 FCC Rcd 13,449, 13,450 (WTB 1997). *See also*
    Auction of Licenses in the 747-792 MHz Bands Scheduled for September
    6, 2000, *Public Notice*, 15 FCC Rcd 11,526, 11,547 (WTB 2000).

[^105]: *See supra* para. 27.

[^106]: Nassau Petition at 4.

[^107]: *Id.* at 3.

[^108]: *See* 47 C.F.R. § 73.3555(a).

[^109]: *Advance*, 22 FCC Rcd at 18,850 ¶ 7, 18,853 ¶ 16.

[^110]: *Id.* at 18,851-52 ¶ 10.

[^111]: Nassau Amendment to Petition at 5-6.

[^112]: *See supra* para. 25.

[^113]: Nassau Amendment to Petition at 4-5.

[^114]: *Advance*, 22 FCC Rcd at 18,852 ¶ 13.

[^115]: We stated, "\[W\]e do not base our decision on Advance's claim
    that it relied on faulty third-party software. . . . \[A\]ll
    participants in Commission auctions are responsible for performing
    adequate due diligence in deciding whether and how much to bid for
    any particular construction permit or license. We therefore
    emphasize that we do not consider Advance's allegations of
    third-party mistake to be a justification for a waiver of the bid
    withdrawal payment rule." *Id.* at 18,852 ¶ 11.

[^116]: *Id.*

[^117]: Pub.L. 104-134, 110 Stat. 1321, 1358 (Apr. 26, 1996).

[^118]: *See* 31 U.S.C. § 3717; 47 C.F.R. § 1.1910.

[^119]: In 2004, the Commission adopted rules implementing the
    requirements of the DCIA. *See* Amendment of Parts 0 and 1 of the
    Commission\'s Rules -- Implementation of the Debt Collection
    Improvement Act of 1996 and Adoption of Rules Governing Applications
    or Requests for Benefits by Delinquent Debtors, 19 FCC Rcd 6540
    (2004); 47 C.F.R. Part 1, Subpart O. The Commission\'s rules
    implementing the DCIA require entities and individuals doing
    business with the Commission to pay their debts in a timely manner.
    Furthermore, under these rules delinquent debtors may not obtain
    Commission benefits. Pursuant to Section 1.1910 of the Commission\'s
    rules, action will be withheld on any application pending before the
    Commission that has been filed by Lunderville or College Creek, and
    if these parties do not pay their delinquent debt or make other
    satisfactory arrangements within 30 days of the date of this Order,
    any pending application they have filed will be dismissed. 47 C.F.R.
    § 1.1910.

[^120]: *See supra* note 14.