February 28, 2002

Mr. Walter Steimel, Jr., Esq.

Counsel for Red Hot Radio, G.P.

Greenberg Traurig

800 Connecticut Avenue, N.W., Suite 500

Washington, D.C.

Re: Eligibility Status of Red Hot Radio

Dear Mr. Steimel:

This letter responds to the Petition filed on behalf of your client, Red
Hot Radio ("RHR")[^1] seeking reconsideration of the January 3, 2001,
*Election PN*,[^2] which announced the date by which those licensees
eligible to participate in the 218-219 MHz service restructuring plan
were required to choose a restructuring option.[^3] The *Election PN*
also contained a list of those licensees eligible to participate in the
restructuring plan.[^4] Although RHR had been previously notified that
it was not eligible to participate in the 218-219 MHz restructuring
plan,[^5] RHR's Petition seeks reconsideration of its omission from the
list contained in the *Election PN*. For the reasons set forth below, we
dismiss RHR's Petition.

# Background

In September of 1994, RHR was the winning bidder for three IVDS licenses
at auction.[^6] As a small business, RHR was eligible to participate in
the Federal Communications Commission's ("Commission") installment
payment plan, which conditioned licenses upon full and timely
performance of all installment payment obligations.[^7] RHR's first
three required installment payments were owed in the following amounts:
January 5, 1996 payment due in the amount of \$1,651.88; March 31, 1996
payment due in the amount of \$3,712.20; and June 30, 1996 payment due
in the amount of \$3,712.20.[^8] RHR's filings evidence payments to the
Commission in the amount of \$7,419.65.[^9] These payments satisfied
RHR's January 5, 1996 and March 30, 1996 installment payment
obligations, but only partially satisfied RHR's June 30, 1996
installment obligation.[^10]

At the time of RHR's June 30, 1996 installment payment obligation, the
Commission's rules provided that in the event a license holder is more
than ninety days delinquent on any installment payment, its license
would cancel automatically.[^11] If, during the first ninety days
following any missed installment payment, a licensee required financial
assistance, the rules allowed the licensee to request that the
Commission grant a grace period of three to six months, during which no
installment payments need be made.[^12] Thus, RHR had until September
28, 1996, to either submit the full amount of the June 30, 1996
installment payment or file a grace period request. RHR did not file a
timely grace period request within 90 days of the June 30, 1996
obligation.[^13]

On September 10, 1999, the Commission issued the *218-219 MHz Order*,
which, among other measures, adopted a financial restructuring plan for
"Eligible Licensees."[^14] Eligible Licensees included those that: (i)
were current in installment payments as of March 16, 1998; (ii) were
less than ninety days delinquent on the last payment due before March
16, 1998; or (iii) had properly filed grace period requests under the
former installment payment rules.[^15] "Ineligible Entities" were those
that had made second down payments and: (i) made some installment
payments, but were not current in their installment payments as of March
16, 1998, and did not have a grace period request on file in conformance
with the former rules; or (ii) entities that never made any installment
payments and did not have a timely filed grace period request on
file.[^16] Ineligible Entities were not entitled to participate in the
restructuring plan for the 218-219 MHz Service as they lost their
licenses through default.[^17] However, Ineligible Entities were granted
debt forgiveness for any outstanding balances owed and were informed
that their previously paid installments would be refunded.[^18]

In a letter dated January 6, 2000, RHR was notified that it was not
eligible to participate

in the restructuring plan.[^19] RHR did not seek reconsideration of
either the *218-219 MHz Order*[^20] or the January 6, 2000 *RHR
Ineligibility Letter*. Instead, more than four years after its June 30,
1996 installment payment was due, and nearly twelve months after
notification via the *RHR Ineligibility Letter*, RHR submitted the
instant Petition.[^21]

# Discussion

By statute, Congress limited the Commission's jurisdiction to review
petitions for reconsideration to those filed within a specific time
period.[^22] Section 1.106(f) of the Commission's rules implements this
statutory mandate and requires that a petition for reconsideration be
filed within thirty days from the date of public notice of the
Commission's action.[^23] As stated above, our records indicate that RHR
failed to make full payment on its June 30, 1996 installment obligation
and failed to file a timely grace period request for the licenses by
September 28, 1996. Accordingly, the licenses automatically cancelled on
September 29, 1996.[^24] RHR did not file a timely challenge to this
automatic cancellation.[^25] RHR ignores the untimely nature of its
Petition and instead argues that the *Election PN* constitutes a "grant"
of eligibility.[^26] Although in some instances it may be proper for a
party to challenge a Commission public notice that establishes or denies
rights,[^27] the *Election PN* was not an order or action of the
Commission (or the Wireless Telecommunications Bureau) canceling RHR's
licenses. Rather, the *Election PN* was issued to announce the date by
which Eligible Licensees were required to choose a restructuring
option.[^28] Thus, RHR has failed to establish that its petition for
reconsideration is timely. Accordingly, we dismiss RHR's petition
pursuant to section 1.106(f) of our rules.

Not only is RHR's Petition untimely under section 1.106(f) of the
Commission's rules, it is also barred by the doctrine of waiver, *i.e*.,
a party with sufficient opportunity to raise a challenge in a timely
manner, but who fails to do so, is deemed to have waived the challenge
and is precluded from raising it subsequently.[^29] RHR was obligated
under the Commission's rules to bring any dispute over the automatic
cancellation of its licenses to the Commission's attention in a timely
manner. RHR did not file a grace period request before RHR's licenses
automatically canceled.[^30] RHR, also, did not file a petition for
reconsideration after the licenses automatically cancelled. Further, RHR
also failed to bring any concerns regarding the status of its licenses
to the Commission's attention when other events reasonably should have
prompted inquiry, *i.e*., release of the *218-219 MHz Order*,[^31] RHR's
receipt of the *RHR Ineligibility Letter*,[^32] and issuance of the
*Implementation PN*.[^33] In light of this record of inaction, it is
clear that RHR has waived its challenge to the automatic cancellation of
its licenses.

**III. Conclusion**

For the foregoing reasons, RHR's Petition seeking reconsideration filed
on February 2, 2001, is dismissed.

This action is taken pursuant to sections 1, 4(i), 4(j), 303(r), 309(j)
and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
154(i), 154(j), 303(r), 309(j), 405 and the authority delegated pursuant
to section 0.331[^34] of the Commission's Rules.

Sincerely,

Margaret Wiener, Chief

Auctions and Industry Analysis Division

[^1]: In the Matter of Wireless Telecommunications Bureau Announces
    Revised Election Date and Amended Eligibility List for 218-219 MHz
    Service, Petition for Reconsideration, filed on Feb. 2, 2001
    ("Petition").

[^2]: ^?^ "Wireless Telecommunications Bureau Announces Revised Election
    Data and Amends Eligibility List for 218-219 MHz Service," *Public
    Notice,* 16 FCC Rcd 5937 (2001) ("*Election PN*").

[^3]: ^?^ Amendment of Part 95 of the Commission\'s Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service, WT Docket No.
    98-169, *Report and Order and Memorandum Opinion and Order*, 15 FCC
    Rcd 1497 (1999) ("*218-219 MHz Order*").

[^4]: *Election PN*, 16 FCC Rcd 5937 (2001) ("*Election PN*").

[^5]: RHR was sent a letter indicating that it was not eligible to
    participate in the restructuring plan on January 6, 2000. Letter to
    Walter Steimel, Jr., Red Hot Radio Counsel, from Rachel Kazan,
    Chief, Auctions Finance and Market Analysis Branch, Wireless
    Telecommunications Bureau, Federal Communications Commission, dated
    January 6, 2000 ("*RHR Ineligibility Letter*"). Additionally, the
    list of Eligible Licensees was initially published in an April 20,
    2000 public notice. Implementation Procedures For The Report and
    Order and Memorandum Opinion and Order Addressing The 218-219 MHz
    Services (Formerly Known as Interactive Video and Date Services
    (IVDS)), *Public Notice*, 15 FCC Rcd. 7329, Appendix B (2000)
    ("*Implementation PN*") (explaining implementation procedures
    relating to the restructuring plan).

[^6]: ^?^ "Interactive Video And Data Service (IVDS) Applications
    Accepted For Filing," *Public Notice*, 9 FCC Rcd 6227 (1994).

[^7]: ^?^ 47 C.F.R. § 1.2110(e)(4)(iii) (1994). Wireless
    Telecommunications Bureau Staff Clarifies "Grace Period" Rule for
    IVDS "Auction" Licensees Paying By Installment Payments, *Public
    Notice*, 10 FCC Rcd. 10724 (1995) (WTB) ("IVDS Licensees that elect
    to pay for their license in installments will have their license
    conditioned upon full and timely performance of all installment
    payment obligations. The Commission's rules provide that a licensee
    will be deemed in default on its installment payments if it is more
    than 90 days delinquent in making a payment to the government.").

[^8]: ^?^ Initial installment payments for all IVDS licensees were
    stayed by an Order issued on September 22, 1995. In the Matter of
    Interactive Video and Data Service (IVDS) Licenses, Request for Stay
    to Postpone Commencement of Installment Payment Program, *Order,* 11
    FCC Rcd. 3031 (1995). The stay was lifted and initial installment
    payments were ordered to resume on January 5, 1996. In the Matter of
    Interactive Video and Data Service (IVDS) Licenses, Various Requests
    by Auction Winners, *Order*, 11 FCC Rcd. 1282 (1995). The new
    installment payment schedule was clarified by two letters sent to
    all IVDS licensees on March 10, 1996 and March 29, 1996. Notice To
    IVDS Licensees, dated March 10, 1996 from Regina Dorsey, Chief,
    Billings and Collection Branch, Federal Communications Commission;
    Letter dated March 29, 1996 from Regina Dorsey, Chief, Billings and
    Collection Branch, Federal Communications Commission.

[^9]: ^?^ Petition Attachment: "Additional Filings in Support of
    Petition" (RHR submitted a payment on April 4, 1996 in the amount of
    \$3,712.20 and a payment on July 1, 1996 in the amount of
    \$3,707.45).

[^10]: ^?^ RHR still owed \$1,656.63 on the June 30^th^ installment
    payment.

[^11]: ^?^ 47 C.F.R. § 1.2110(e)(4) (1994).

[^12]: 47 C.F.R. § 1.2110(e)(4)(ii) (1994)*.*

[^13]: ^?^ RHR does not offer any substantive indication that it filed a
    timely grace period request with respect to its June 30, 1996
    obligation. Instead, RHR offers vague representations in its
    Petition that it was aware of its payment obligations and that it
    filed timely grace period requests. Petition at 1 (alleging that RHR
    made all required installment payments or request grace periods as
    necessary); Declaration of Marjorie K. Connor, attached to Petition,
    dated February 2, 2001 (alleging that she prepare several letters to
    the Bureau to request grant of various grace periods). However, the
    record fails to support RHR's contention. Rather, documents
    submitted as attachments to RHR's Petition suggest that RHR did not
    recognize that it had not paid the full amount of its June 30, 1996
    installment payment. Letter from Marjorie K. Conner, General
    Partner, Red Hot Radio, to William F. Caton, Secretary, dated
    December 31, 1996 (seeking a grace period for the September 30, 1996
    installment payment and making no mention of the June 30, 1996
    installment payment. This letter itself was untimely as to the
    September 30, 1996 installment payment); Letter from Ronnie London,
    Hunton & Williams, to A. Jerome Fowlkes, Federal Communications
    Commission, dated April 1, 1997 (noting that RHR had filed a grace
    period request on December 31, 1996 with respect to the September
    30, 1996 installment payment, but again failing to mention the any
    prior grace period requests). Further, in its petition, RHR does not
    specifically allege that it filed a grace period request with
    respect to the June 30, 1996 installment payment.

[^14]: ^?^ *218-219 MHz Order*, 15 FCC Rcd at 1506, 1517 ¶¶ 15, 31.

[^15]: *Id*. at 1520 ¶ 37.

[^16]: *Id*. at 1520 ¶ 38.

[^17]: *Id*. at 1518 ¶ 33 (citing 47 C.F.R. § 1.2110 (1994)); *see also*
    Letter to E. Ashton Johnston, Esq., Counsel for Vista
    Communications, Inc., from Margaret Wiener, Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau, 16
    FCC Rcd. 12430 (2001); Letter to J. Jeffrey Craven, Esq., Counsel
    for IVIDCO, L.L.C., from Margaret Wiener, Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau*,* 16
    FCC Rcd*.* 7236 (2001); Letter to Fred D. Middleton, Jr., President,
    P.A.W., Inc., from Margaret Wiener, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, 16 FCC Rcd.
    3473 (2001).

[^18]: *218-219 MHz Order*, 15 FCC Rcd at 1520 ¶ 38; Implementation
    Procedures For The Report And Order And Memorandum Opinion And Order
    Addressing the 218-219 MHz Services (Formerly Known As Interactive
    Video And Data Services (IVDS)), *Public Notice*, 15 FCC Rcd 7329
    (WTB 2000) (noting that the Department of Justice authorized the
    reduction of debt owed to the United States in accordance with the
    debt relief provisions of the *218-219 MHz Order*); *Election PN*,
    16 FCC Rcd. 5937.

[^19]: ^?^ *RHR Ineligibility Letter*. As noted in note 5 above, in
    April of 2000, the Commission also published a list of Eligible
    Licensees. *Implementation PN*, 15 FCC Rcd. 7329, Appendix B

[^20]: ^?^ The *218-219 MHz Order* was released on September 10, 1999.
    *218-219 MHz Order*, 15 FCC Rcd 1497.

[^21]: ^?^ Notwithstanding the automatic cancellation of its licenses on
    September 29, 1996, the *218-219 MHz Order*, the *Implementation
    PN,* and the *RHR Ineligibility lett*er, RHR filed a restructuring
    choice and chose prepayment. That filing was noted but not accepted
    as an election by the Commission "Wireless Telecommunications Bureau
    Announces The Elections For The 218-219 MHz Service," *Public
    Notice*, 16 FCC Rcd. 5901 (2001).

[^22]: 47 U.S.C. § 405 (limiting the Commission's power to consider
    petitions for reconsideration to those filed within 30 days from
    public notice of the order, decision, report or action complained
    of); *see also Reuters Limited v. FCC*, 781 F.2d 946, 951-52 (1986)
    (narrowly construing judicially created "extraordinary
    circumstances" exception to statutory time limit for filing
    petitions for reconsideration).

[^23]: ^?^ 47 C.F.R. § 1.106(f).

[^24]: ^?^ 47 C.F.R. § 1.2110 (1994).

[^25]: ^?^ 47 C.F.R. § 1.2110(e)(4) (1994).

[^26]: *See* *generally* Petition (wherein RHR argues that the *Election
    PN* constitutes a "grant" of eligibility).

[^27]: *See* *Nextwave Order on Recon.,* 15 FCC Rcd. 17500, ¶ 10.

[^28]: ^?^ *Election PN*, 16 FCC Rcd. 5937 ("On December 28, 1999, a
    Preliminary Implementation Procedures Public Notice was issued which
    announced that Eligible Licensees had to make their elections by 7
    p.m., February 29, 2000. In order to allow sufficient time to
    address the issues raised in the various petitions for
    reconsideration of the *218-219 MHz Order*, the Commission decided
    to change the Election Date to the last business day of the first
    full month after an Order on the petitions for reconsideration was
    released. On December 13, 2000, the Commission released an Order
    addressing the aforementioned petitions for reconsideration.
    Accordingly, Eligible Licensees must make their elections by 7 p.m.,
    Wednesday, January 31, 2001.") (citations omitted).

[^29]: ^?^ *Adelphia Communications Corp. v. FCC*, 88 F.3d 1250, 1256
    (D.C. Cir. 1996*); Northwest Indiana Telephone Company, Inc. v.
    FCC*, 872 F.2d 465, 470 (D.C. Cir. 1989); In the Matter of Weblink
    Wireless, Inc., *Order*, DA 01-1143, ¶ 6 (rel. May 3, 2001)
    ("*Weblink*"); In the Matter of Community Teleplay, Inc., et. al.,
    *Order*, 13 FCC Rcd 12426, 12428 ¶ 5 (WTB 1998) ("*Community
    Teleplay*").

[^30]: *See supra* fn. 13.

[^31]: *218-219 MHz Order*, 15 FCC Rcd. 1497 (rel. September 10, 1998).

[^32]: ^?^ *RHR Ineligibility Letter*, issued January 6, 2000.

[^33]: ^?^ *Implementation PN*, 15 FCC Rcd. 7329 (2000).

[^34]: ^?^ 47 C.F.R. § 0.331.