**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | FCC File No. 0000013644      |
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| LMDS COMMUNICATIONS, INC.        | ) |                              |
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| Request for Waiver of Sections   | * |                              |
| 1.2109(a) and (c),               |   |                              |
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| 1.2104(g) and 101.1105(b) of the | * |                              |
| Commission's                     | ) |                              |
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| Rules Regarding BTA117, BTA122,  | * |                              |
| BTA203, BTA215, BTA218, BTA287,  |   |                              |
| BTA317, BTA328, BTA330, BTA335,  | * |                              |
| BTA375 and BTA416                | * |                              |
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+----------------------------------+---+------------------------------+

ORDER

**Adopted:** March 10, 2000 **Released:** March 17, 2000

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

# INTRODUCTION AND BACKGROUND

1.  This *Order* addresses a request for waiver of Sections 1.2109(a)
    and (c), 1.2104(g) and 101.1105(b) of the Commission\'s Rules filed
    by LMDS Communications, Inc. (LMDSC), the winning bidder of twelve
    licenses in the Local Multipoint Distribution Service (LMDS) Auction
    (Auction No. 23), requesting a sixty-day extension of its final
    payment deadline or, in the alternative, that the payments it
    already has made be applied as full payment for eight of the subject
    licenses.[^1] For the reasons discussed below, we grant in part and
    deny in part LMDSC\'s request. Specifically, we grant LMDSC's
    request to default selectively on certain licenses and retain those
    licenses for which LMDSC has already made adequate payment. However,
    we deny LMDSC's request for a sixty-day extension to submit its
    remaining payment.

2.  On May 12, 1999, at the close of Auction No. 23, LMDSC was the high
    bidder for twelve licenses totaling \$990,550.00.[^2] Prior to the
    auction, LMDSC submitted an upfront payment of \$125,000.00 on April
    12, 1999. Following the auction, on May 26, 1999, it submitted a
    down payment of \$73,110.00. On August 9, 1999, the Wireless
    Telecommunications Bureau (Bureau) conditionally granted
    applications for 127 LMDS licenses, including the twelve licenses
    for which LMDSC was the high bidder.[^3] These license grants were
    conditioned upon the full and timely payment of the remaining
    balance of each applicant\'s winning bid by August 23, 1999.[^4] The
    Commission\'s Part 1 competitive bidding rules afford applicants who
    fail to meet the initial deadline with an additional ten business
    days to make payment, provided they also pay a late fee equal to
    five percent of the amount due.[^5] Thus, LMDSC had until the late
    payment deadline of September 7, 1999, to remit full payment.

3.  At the time the LMDS Conditional Grant Public Notice was released,
    the balance left owing on LMDSC\'s twelve licenses totaled
    \$792,440.00. Prior to September 7, 1999, LMDSC remitted a total of
    \$396,220.00.[^6] This left an unpaid balance of \$396,220.00. LMDSC
    contends that it did not become aware of its payment shortfall,
    until contacting the Commission\'s Office of Managing Director,
    Auctions Accounting Group, to confirm payment on August 30,
    1999.[^7] LMDSC subsequently became aware that the shortfall was due
    to an investor\'s withdrawal of financial support.[^8] On September
    7, 1999, LMDSC filed a request seeking a sixty-day extension of the
    payment deadline. In the alternative, LMDSC requested that, since it
    had already remitted payments totaling \$633,952.00, it should be
    allowed to default selectively on four licenses (namely, those
    licenses for markets BTA122, BTA218, BTA335 and BTA375), and receive
    an unconditional grant of the remaining eight licenses (those
    licenses for markets BTA117, BTA203, BTA215, BTA287, BTA317, BTA328,
    BTA330 and BTA416) for which LMDSC believes its has paid in full
    satisfaction.[^9]

# DISCUSSION

4.  Pursuant to the Commission\'s Rules, a winning bidder who fails to
    timely remit its final payment is deemed to have defaulted.
    Generally, in the case of a default, the winning bidder\'s
    application will be dismissed and it will be subject to the default
    payments specified in Sections 1.2104(g) and 1.2109(c) of the
    Commission\'s Rules.[^10] Specifically, a defaulting bidder is
    required to pay the difference between the amount bid and the amount
    of the winning bid the next time the license is offered by the
    Commission, plus an additional amount equal to three percent of the
    defaulter\'s bid or the subsequent winning bid, whichever is
    less.[^11] In the event that the subsequent winning bid is greater
    than or equal to the defaulted bid, the total default payment is
    equal to three percent of the winning bid.[^12] If the default
    payment cannot be determined because the license(s) have yet to be
    won at auction, then the Commission has stated that it will assess
    an initial default deposit of between three percent and twenty
    percent of the defaulted bid amount.[^13] Once the license(s) have
    been auctioned the total default payment will be calculated and the
    Commission will either assess the final balance or refund any
    amounts due to the defaulting bidder.[^14]

5.  Section 1.3 of the Commission\'s Rules permits the Commission to
    waive its rules if good cause is demonstrated.[^15] Section 1.925 of
    the Commission\'s Rules provides that a waiver of the Commission\'s
    rules will not be permitted except upon an affirmative showing that
    either: (a) the underlying purpose of the rule will not be served in
    a particular situation and that granting the waiver request is in
    the public interest;[^16] or (b) the "unique or unusual factual
    circumstances of the instant case" would render application of the
    rule "inequitable, unduly burdensome or contrary to the public
    interest, or the applicant has no reasonable alternative."[^17]
    Applicants requesting a rule waiver "must plead with particularity
    the facts and circumstances which warrant such action."[^18]
    Although LMDSC contends that both Commission precedent and the
    public interest support its request for a sixty-day extension, we
    find that LMDSC fails to satisfy the necessary requirements for a
    rule waiver. Notwithstanding this decision, we conclude that
    LMDSC\'s request to default selectively and retain eight of the
    twelve subject licenses does comport with Commission precedent, and
    therefore, we grant that portion of LMDSC\'s request.

6.  *[Sixty-Day Extension of Payment Deadline]{.underline}*. LMDSC
    maintains that it does not wish to default on any of its licenses
    and that it has access to funds sufficient to satisfy the amount
    due, but requires a payment deadline extension in order to arrange
    the necessary financing.[^19] According to LMDSC, a strict adherence
    to the default requirements would weaken LMDSC, cause a significant
    delay in service to the subject market areas, and require the
    Commission to again auction the licenses.[^20] Therefore, LMDSC
    argues that, in this instance, a strict application of the default
    provisions in Sections 1.2109 and 1.2104 of the Commission\'s Rules
    would contradict the underlying purpose for these rules and
    contravene the public interest.[^21] Moreover, LMDSC contends that
    its circumstances bear similarity to prior Commission decisions,
    wherein the Commission has allowed applicants to remit final payment
    after the deadline, based on financial viability at the payment
    deadline. LMDSC asserts that it has access to assets sufficient to
    pay its winning bid balance, but \"\[b\]ecause the assets are not in
    a liquid form . . . it is necessary that LMDSC be granted a short
    extension of time to obtain the funds. . . .\"[^22]

7.  We disagree. The overall integrity of the auction process itself
    depends on timely payments by winning bidders.[^23] We believe that
    prompt payment is an objective indicator that a winning bidder is
    financially able to meet its obligations and intends to provide
    service to the public. We acknowledge that in certain limited
    situations, where winning bidders have missed payment deadlines due
    to inadvertent administrative complications, the Commission has
    accepted late payments.[^24] In these cases, the Commission stated
    that the defaulting bidder must demonstrate \"financial viability
    based upon the fact that it had access to adequate funds\" at the
    time its payment is due.[^25]

8.  We find the situation presented herein to be inapposite to those
    limited situations where the Commission has afforded relief. We
    believe that the relevant Commission precedent requires that the
    necessary funds be available at the payment due date; as a result,
    we do not believe it is necessary to determine whether LMDSC\'s real
    estate assets are sufficient to eventually cover its payments. As
    the Commission has previously stated, an \"offer to pay an
    obligation is not the same thing as actually relinquishing control
    of the funds to make the payment by placing the funds in escrow with
    a financial institution or on deposit with the payee.\"[^26]
    LMDSC\'s request for an additional sixty days to secure financing is
    indicative of a lack of immediate access to funds. Finally, the
    Commission has recognized that auction winners may encounter
    unexpected or unforeseeable difficulties when trying to arrange
    financing. In providing bidders with an additional ten business days
    following the applicable deadline to resolve financing problems, the
    Commission has sought to allow bidders some flexibility to overcome
    these complications.[^27] However, the Commission declined to
    provide for a lengthier late payment period because it believed that
    \"extensive relief from initial payment obligations could threaten
    the integrity, fairness and efficiency of the auction
    process.\"[^28] Accordingly, we deny LMDSC\'s request for a
    sixty-day extension to complete payment.

9.  *[Default Payment Obligations]{.underline}*. In the alternative,
    LMDSC maintains that, because it has already remitted sufficient
    payment to cover eight of its twelve licenses, it should be allowed
    to retain the eight licenses requested and default selectively on
    the remaining four licenses.[^29] The Commission has previously
    allowed winning bidders at auction to default selectively on
    licenses where the applicant has a sufficient amount of money on
    deposit to cover the licenses the bidder wishes to retain and the
    associated default obligations.[^30]

10. Under the Commission\'s Rules, applicants that choose to selectively
    default continue to remain responsible for the Commission\'s default
    obligations.[^31] In this instance, it is necessary to delay a
    determination of LMDSC\'s total default payment, until the four
    licenses LMDSC has chosen to default on can be auctioned. Therefore,
    pursuant to Commission practice, we will assess a deposit toward the
    default payment ultimately owed by LMDSC. As stated above, the
    Commission\'s Rules allow for an initial default deposit from three
    percent to twenty percent of the defaulted bid.[^32] Nevertheless,
    we note that if any of the subject licenses are won at auction for
    amounts greater than LMDSC\'s bid for these licenses, the default
    payment due will only be three percent of LMDSC\'s defaulted bid.
    Consequently, we will require a deposit of three percent of LMDSC\'s
    defaulted net high bid for the subject licenses, or \$11,962.50.
    Pursuant to Sections 1.2106(e) and 1.22104(g) of the Commission's
    Rules, the \$11,962.50 initial default payment will be deducted from
    the \$633,952.00 on deposit with the Commission, leaving a balance
    of \$621,989.50.[^33] This amount is sufficient to satisfy LMDSC's
    payment obligation of \$591,800.00 on the eight licenses it wishes
    to retain.[^34] This also leaves LMDSC with \$6,517.50 on deposit in
    excess of the amount owed for the licenses, the initial default
    payment deposit, and the late payment fee. Therefore, we will remit
    to LMDSC its excess on deposit. In order to process LMDSC's refund,
    the Commission must receive wire transfer instructions.[^35]

# CONCLUSION AND ORDERING CLAUSES

11. For the foregoing reasons, LMDSC\'s request for a sixty-day
    extension of its payment deadline is denied. LMDSC\'s request that
    the Commission apply its monies on deposit to the eight licenses
    specified by LMDSC is hereby granted.

12. Accordingly, IT IS ORDERED pursuant to Sections 4(i) and 309 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 309,
    and Section 1.925 of the Commission's Rules, 47 C.F.R. § 1.925, that
    the Waiver Request, filed on September 7, 1999, by LMDS
    Communications, Inc., is DENIED IN PART and GRANTED IN PART to the
    extent indicated herein.

13. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), that the
    request of LMDS Communications, Inc., that the Commission apply its
    funds on deposit to the licenses for BTA117, Du Bois-Clearfield, PA;
    BTA203, Indiana, PA; BTA215, Jamestown-Dunkirk NY/Warren, PA;
    BTA287, Meadville, PA; BTA317, New Castle, PA; BTA328, Oil
    City-Franklin, PA; BTA330, Olean, NY/Bradford, PA; and BTA416,
    Sharon, PA, is GRANTED.

14. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.2104 of the Commission's Rules, 47 C.F.R. § 1.2104, that
    the application, FCC File No. 0000013644, filed on June 24, 1999, by
    LMDS

Communications, Inc., is DISMISSED to the extent that it relates to
BTA122, East Liverpool-Salem OH; BTA218, Johnstown, PA; BTA335,
Orangeburg, SC; and BTA375, Riverton, WY.

15. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.2104(g) of the Commission's Rules, 47 C.F.R. § 1.2104(g),
    that LMDS Communications, Inc., is assessed an initial default
    payment in the amount of \$11,962.50.

16. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.2104(g) of the Commission's Rules, 47 C.F.R. § 1.2104(g),
    that the default payment shall be applied from LMDS Communications,
    Inc.'s payment deposit of \$633,952.00.

17. IT IS FURTHER ORDERED, pursuant to Section 4(i) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 154(i), that the
    Licensing and Technical Analysis Branch, Public Safety and Private
    Wireless Division, Wireless Telecommunications Bureau is instructed
    to issue to LMDS Communications, Inc. license authorizations for
    BTA117, Du Bois-Clearfield, BTA203, Indiana, PA; BTA215
    Jamestown-Dunkirk NY/Warren, PA; BTA287, Meadville, PA; BTA317, New
    Castle, PA; BTA328, Oil City-Franklin, PA; BTA330, Olean,
    NY/Bradford, PA; and BTA416, Sharon, PA, within thirty days from the
    release of this *Order*.

18. IT IS FURTHER ORDERED that the LMDS Communications, Inc. will
    receive a refund in the amount of \$6,517.50.

19. IT IS FURTHER ORDERED that LMDS Communications, Inc. will be subject
    to the balance of the default payment specified in Section 1.2104(g)
    of the Commission's Rules, 47 C.F.R. § 1.2104(g), once BTA122, East
    Liverpool-Salem OH; BTA218, Johnstown, PA; BTA335, Orangeburg, SC;
    and BTA375, Riverton, WY are won at auction, and the actual default
    payment is determined.

20. This action is taken pursuant to delegated authority granted under
    provision of Sections 4(i) and 5(c)(1) of the Communications Act of
    1934, as amended, 47 U.S.C. §§ 154(i), 155(c)(1), and Sections 0.131
    and 0.331 of the Commission\'s Rules, 47 C.F.R. §§ 0.131, 0.331.

FEDERAL COMMUNICATIONS COMMISSION

D\'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: LMDS Communications, Inc., Request for Waiver of Sections
    1.2109(a) and (c), 1.2104(g) and 101.1105(b) of the Commission\'s
    Rules (filed September 7, 1999) (Waiver Request). On October 8,
    1999, LMDSC requested that the Commission expedite its Petition or
    in the alternative issue a partial ruling addressing LMDSC\'s
    request for selective default. Letter to D\'wana R. Terry, Chief,
    Public Safety and Private Wireless Division, Wireless
    Telecommunications Bureau, from Aimee M. Cook, Esq., Blumenfeld &
    Cohen (filed October 8, 1999). Because this *Order* addresses both
    the sixty-day payment extension issue and the selective default
    request herein, LMDSC\'s request for an expedited partial ruling has
    been rendered moot.

[^2]: LMDSC was the high bidder on licenses for the following markets:
    BTA117, Du Bois-Clearfield, PA; BTA122, East Liverpool-Salem OH;
    BTA203, Indiana, PA; BTA215, Jamestown-Dunkirk, NY- Warren, PA;
    BTA218, Johnstown, PA; BTA287, Meadville, PA; BTA317, New Castle,
    PA; BTA328, Oil City-Franklin, PA; BTA330, Olean, NY -Bradford, PA;
    BTA335, Orangeburg, SC; BTA375, Riverton, WY; and BTA416, Sharon,
    PA. *See* Local Multipoint Distribution Service Auction Closes,
    *Public Notice,* 14 FCC Rcd 8543 (1999).

[^3]: *See* FCC Announces Conditional Grant of 127 Local Multipoint
    Distribution Service Licenses, Auction No. 23, *Public Notice,* 14
    FCC Rcd 13200 (1999) (LMDS Conditional Grant Public Notice).

[^4]: *Id.* at 13200.

[^5]: 47 C.F.R. § 1.2109(a).

[^6]: On August 23, 1999, LMDSC submitted a portion of this amount
    (\$171,220.00). It remitted the remainder (\$225,000.00) on August
    30, 1999, before the late payment deadline. On September 3, 1999,
    LMDSC also remitted a five percent late payment of \$39,622.00. The
    actual late payment owed on the licenses LMDSC seeks to retain is
    \$23,672.00. Accordingly, the over payment amount of \$15,950.00
    will be applied to the payment for these licenses.

[^7]: Waiver Request at 2.

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

[^9]: On March 3, 2000, LMDSC amended its September 7, 1999, waiver
    request to revise the list of licenses it was seeking to retain. The
    above listed markets accurately reflects the amended request. *See*
    Letter from Larry Blosser, Blumenfeld & Cohen to Catherine Fox,
    Public Safety & Private Wireless Division, Wireless
    Telecommunications Bureau (March 3, 2000).

[^10]: 47 C.F.R. §§ 1.2109(c), 1.2104(g).

[^11]: 47 C.F.R. § 1.2104(g)(2).

[^12]: *Id.*

[^13]: Amendment of Part 1 of the Commission\'s Rules \-- Competitive
    Bidding Procedures, Allocation of Spectrum Below 5 GHz Transferred
    from Federal Government Use, *Third Report and Order and Second
    Notice of Proposed Rule Making*, 13 FCC Rcd 374, 434 ¶ 102 (1997)
    (*Third Report and Order*).

[^14]: *Id.*

[^15]: 47 C.F.R. § 1.3.

[^16]: 47 C.F.R. § 1.925(b)(3)(i).

[^17]: 47 C.F.R. § 1.925(b)(3)(ii).

[^18]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969), *cert
    denied* 409 U.S. 1027 (1972).

[^19]: Waiver Request at 5-8. LMDSC\'s director Dean Lucas intends to
    obtain financing on an unencumbered residential property valued in
    excess of the balance on LMDSC\'s LMDS licenses.

[^20]: *Id.* at 9.

[^21]: *Id*.

[^22]: *Id.* at 11.

[^23]: *Third Report and Order*, 13 FCC Rcd at 433 ¶ 101.

[^24]: *See e.g.,* Metricom, Inc., Request for Waiver of Section
    27.208(a), *Order*, 13 FCC Rcd 890 (1998) (*Metricom*) (Wireless
    Telecommunications Bureau granted waiver of payment deadline where
    bidders down payment was delayed by two days because of mistake
    involving wire transfer); Magnacom Wireless, L.L.C. Request for
    Waiver of 24.716(a)(2), *Order*, 13 FCC Rcd 766 (1998) (*Magnacom*)
    (Wireless Telecommunications Bureau granted waiver of payment
    deadline where bidder was eight business days late with payment
    because of accounting error); Carolina PCS I Limited Partnership
    Request for Waiver of Section 24.711(a)(2), *Memorandum Opinion and
    Order*, 12 FCC Rcd 22938 (1997) (*Carolina PCS*) (Commission granted
    waiver of payment deadline where funds were available in an escrow
    account immediately following payment deadline, but not submitted
    due to investor uncertainty about whether Commission would accept
    late payment); Cenkan Tower, L.L.C., *Order*, 12 FCC Rcd 1516 (WTB
    1997) (partial waiver granted where failure to pay second down
    payment was inadvertent); The Wireless, Inc., *Order*, 12 FCC Rcd
    1821 (WTB 1997) (partial waiver granted where failure to pay second
    down payment was inadvertent); Robert-Roberts & Associates, LLC,
    *Order*, 12 FCC Rcd 1825 (WTB 1997) (partial waiver granted where
    failure to pay second down payment was due to an error by licensee's
    accountant); Southern Communications Systems, Inc., *Order*, 12 FCC
    Rcd 1532 (WTB 1997) (partial waiver granted where failure to pay
    second down payment was due to administrative error); RFW Inc.,
    *Order*, 12 FCC Rcd 1536 (WTB 1997) (partial waiver granted where
    failure to pay second down payment was due to calculation error);
    MFRI, Inc., *Order*, 12 FCC Rcd 1540 (WTB 1997) (partial waiver
    granted where failure to pay second down payment was due to
    administrative error); Wireless Telecommunications Co., *Order*, 12
    FCC Rcd 1544 (WTB 1997) (partial waiver granted where licensee
    promptly paid second down payment upon notice from the Commission of
    its delinquency); CSS Communications, Co., *Order*, 12 FCC Rcd. 1507
    (WTB 1997) (partial waiver granted where failure to pay second down
    payment was inadvertent).

[^25]: *Metricom*, 13 FCC Rcd at 891 ¶ 5-7; *Magnacom*, 13 FCC Rcd at
    768 ¶ 6; *Carolina PCS*, 12 FCC Rcd at 22944 ¶ 14 (Commission
    granted the petitioner\'s waiver request because the petitioner had
    \"a firm financial commitment from its lending institution\" and had
    placed the funds in escrow on or about the payment due date).

[^26]: Mountain Solutions, Ltd., *Order*, 12 FCC Rcd 5904 (1997),
    *Memorandum Opinion and Order*, 13 FCC Rcd 21983, 21991 ¶ 16 (1998),
    *aff'd, Mountain Solutions, Ltd., Inc. v. FCC*, 197 F.3d 512 (D.C.
    Cir. 1999) (Commission declined to grant payment extension where
    Mountain Solutions requested a thirty-day extension in order to seek
    financing).

[^27]: 47 C.F.R. §§ 1.2109(a), 1.2110(e). *See also Third Report and
    Order*, 13 FCC Rcd at 428 ¶ 93-96.

[^28]: *Third Report and Order*, 13 FCC Rcd at 429 ¶ 95.

[^29]: Waiver Request at 3-4.

[^30]: *See, e.g.*, Tel-Com Wireless Cable TV Corporation, *Order*, 12
    FCC Rcd 6747 (1997) (allowing bidder in Multipoint Distribution
    Service auction to retain two of three BTAs bid on at auction, but
    requiring that default payments be paid on third BTA); Letter to
    Stephen Kaffee, counsel for Entertainment Unlimited, Inc., from Amy
    J. Zoslov, Chief Auctions and Industry Analysis Division, Wireless
    Telecommunications Bureau, DA 99-520 (rel. Mar. 17, 1999) (setting
    forth default payment obligations for PCS D, E, and F, block winner
    that selectively defaulted on one of five licenses); Letter to John
    A. Prendergast, counsel for New Wave Networks, L.L.C., from Amy J.
    Zoslov, Chief Auctions and Industry Analysis Division, Wireless
    Telecommunications Bureau, DA 99-690 (rel. April 9, 1999) (granting
    LMDS applicant request that deposit payments be applied to four
    licenses and allowing selective default on remaining two licenses
    won at LMDS Auction No. 17).

[^31]: *See, e.g.*, Tel-Com Wireless Cable TV Corporation, 12 FCC Rcd at
    6748 ¶ 4.

[^32]: *See supra* ¶ 4.

[^33]: *See* Default Calculation, attached hereto as Attachment A.

[^34]: *Id.*

[^35]: *See* Transfer Instructions, attached hereto as Attachment B.