**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
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| The Petition for Reconsideration | ** |                              |
| of the Denial of Vista           |    |                              |
| Communications, Inc.'s Request   | *  |                              |
| for Waiver of the Installment    | *) |                              |
| Payment Rules for the 218-219    | ** |                              |
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**ORDER ON RECONSIDERATION**

**Adopted: February 21, 2003 Released: February 21, 2003**

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

**I. INTRODUCTION**

1\. We have before us a petition[^1] filed by Vista Communications, Inc.
("Vista"), seeking reconsideration of the Auction and Industry Analysis
Division's (the "Division") June 12, 2001 Order,[^2] which denied
Vista's request for waiver[^3] of the installment payment rules for the
218-219 MHz Service.[^4] For the reasons set forth below, we deny
Vista's Petition.

**II. BACKGROUND**

2\. In September of 1994, the Wireless Telecommunications Bureau
("Bureau") announced that Vista was the high bidder for two Interactive
Video and Data Service ("IVDS")

licenses.[^5] As a small business, Vista was eligible to pay for its
winning bids through the Commission's installment payment plan.[^6]
Grant of the licenses was conditioned upon Vista's full and timely
performance of all installment payment obligations.[^7]

3\. Vista acknowledges that after making its March 31, 1997 installment
payments, it ceased making payments on the licenses.[^8] Vista's next
installment payment was due on June 30, 1997. The Commission's rules at
that time provided that in the event a license holder was more than
ninety days delinquent on any installment payment, its license would
cancel automatically.[^9] If, during the first ninety days following any
missed installment payment, a licensee required additional time to make
its payment, 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.[^10] Thus, under the Commission's
rules, Vista had until September 28, 1997, to either submit the full
amount of the June 30, 1997 installment payments or file a grace period
request. Vista did neither,[^11] and as a result, the licenses
automatically canceled on September 29, 1997.

4\. On September 17, 1998, the Commission issued the *218-219 MHz Flex
Order*, which, among other measures, re-designated IVDS as the 218-219
MHz Service and proposed a financial restructuring scheme that allowed
non-defaulting licensees the option of retaining their licenses under
reamortized payment obligations or returning their licenses to the
Commission in exchange for cancellation of debt, *i.e.*, amnesty.[^12]

5\. On June 1, 1999, more than 18 months after the licenses canceled,
Vista filed a request for waiver of the grace period and automatic
cancellation provisions of the installment payment rules.[^13] Vista
alleged that its confusion and uncertainty over its installment payment
schedule and its lack of knowledge regarding the grace period provisions
justified grant of the waiver.[^14] In its Waiver Request, Vista also
argued that the Commission's proposal in the *218-219 MHz Flex Order* to
allow licensees that had not made installment payments, but had filed
timely grace period requests, to retain their license(s), while refusing
to permit licensees that made "substantial payments" to retain their
license(s), would be inequitable.[^15]

6\. On September 10, 1999, while Vista's Waiver Request remained
pending, the Commission issued the *218-219 MHz Restructuring Order*,
which, among other measures, adopted a financial restructuring plan for
"Eligible Licensees."[^16] 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.[^17] "Ineligible Entities" were those
that had made second down payments and either (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) never made any installment payments and
did not have a timely filed grace period request on file.[^18]
Ineligible Entities were not entitled to participate in the
restructuring plan for the 218-219 MHz Service because they lost their
licenses through default.[^19] Ineligible Entities, however, were
granted debt forgiveness for any outstanding balances owed and were
informed that their previously paid installments would be refunded.[^20]
Finally, the Commission also delegated to the Bureau and the Office of
Managing Director ("OMD") the authority to implement the provisions in
the *218-219 MHz Restructuring Order*.[^21]

7\. Subsequently, on December 3, 1999, Vista filed a petition for
reconsideration of the *218-219 MHz Restructuring Order*.[^22] In this
petition, Vista raised the same arguments contained in its Waiver
Request. On December 13, 2000, the Commission issued the *218-219 MHz
Second Order on Reconsideration*,[^23] which, among other things,
affirmed the definition of Eligible Licensee set forth in the *218-219
MHz Restructuring Order*[^24] and rejected Vista's petition for
reconsideration of the *218-219 MHz Restructuring Order*.[^25]

8\. Pursuant to its delegated authority, the Bureau sent individual
letters on January 6, 2000, to former and current 218-219 MHz licensees
confirming their status.[^26] The letter sent to Vista confirmed that it
was not eligible to participate in the restructuring plan.[^27]
Additionally, on April 20, 2000, the Bureau issued two public notices
explaining the restructuring procedures.[^28] One of those public
notices, the *Implementation Public Notice*, included a list of entities
that would be eligible to participate in the 218-219 MHz restructuring
plan.[^29] Vista was not among those listed as eligible.[^30]

9\. On January 3, 2001, the Bureau released a public notice containing
information regarding election procedures and also including an amended
list of Eligible Licensees.[^31] Again, Vista was not among those listed
as eligible for participation in the restructuring plan. Vista did not
dispute the Bureau's confirmation of Vista's status in the *Vista
Ineligibility Letter*, nor did it dispute that it was not included in
the list of eligible entities in the *Implementation Public Notice* or
the *Election Public Notice*.

10\. On April 9, 2001, Vista filed a petition for review of the orders
implementing the Commission's comprehensive restructuring of the 218-219
MHz Service before the United States Court of Appeals for the District
of Columbia Circuit.[^32] It remains pending.

11\. On June 12, 2001, the Division issued an order denying Vista's
Waiver Request.[^33] In the *Vista Order*, the Division described
Vista's allegations in detail and explained that Vista's alleged
confusion regarding the application of the installment payment rules and
its installment payment schedule did not justify grant of the Waiver
Request.[^34] As part of this determination, the Division found that
Vista's assumption that it could withhold payments despite the
Commission's repeated notification of the consequences that would flow
from failure to make full and timely installment payments was
unreasonable.[^35] In making this determination, the Division took
notice of the Commission's prior conclusion, in the context of Vista's
challenge to the *218-219 MHz Restructuring Order*, that "even the most
favorable reading of the Commission's Orders and letters to licensees
would not reasonably lead a licensee to believe that it was excused from
its obligation to make payments, or that it did not need to file a grace
period request if it determined that it could not make timely
payments."[^36] The Division also explained that Vista, just as every
Commission licensee, was charged with knowledge of the applicable
regulations.[^37] Thus, the Division found that Vista's alleged lack of
knowledge with respect to the grace period rules also did not justify
waiver of the rules and it had failed to demonstrate unique or unusual
circumstances that would warrant waiver of the rules.[^38]

12\. The Division also addressed Vista's contention that enforcement of
the rules that resulted in the automatic cancellation of Vista's license
would be inequitable and contrary to the underlying purpose of the
rules.[^39] Vista alleged that it would be unfair to allow licensees
that made no installment payments, but filed timely grace period
requests, to retain their licenses, while refusing to permit licensees
that had made "substantial payments," such as Vista, to retain their
licenses.[^40] The Division noted that the Commission had previously
rejected this argument when Vista raised it as part of a reconsideration
petition essentially seeking to change the definition of "Eligible
Licensee" to include those who had made "substantial payments."[^41] The
Division also explained that strict enforcement of the Commission's
payment rules ensures that applicants have the necessary financial
qualifications to be a Commission licensee and that spectrum is awarded
to those qualified bidders who value the spectrum most.[^42] Further,
the Division stated that insisting that licensees demonstrate their
ability to pay as a condition to holding licenses is essential to a fair
and efficient licensing process, is fair to all participants in the
Commission's auctions, including those who won licenses in the auctions
and those who did not, and fosters the promotion of economic opportunity
and competition in the marketplace.[^43]

13\. Finally, in the *Vista Order* the Division denied Vista's request,
made in the alternative, to make retroactive payment.[^44] In explaining
its decision, the Division observed that, in essence, this request
sought a change to the Commission's eligibility rules and this change
had previously been denied by the Commission.[^45] In the *218-219 MHz
Second Order on Reconsideration,* the Commission specifically rejected
Vista's proposal that the Commission reconsider the *218-219 MHz
Restructuring Order* to allow retroactive payments by former licensees
such as Vista.[^46] The Commission determined that granting Vista's
request would undermine the Commission's rules requiring timely and full
payment as a condition of retaining the license.[^47] The Commission
concluded that in light of the ample notice provided licensees regarding
the payment rules,[^48] and the generous provisions for Ineligible
Entities provided in the *218-219 MHz Restructuring Order*, Vista's
suggestion that it be allowed to make retroactive payments was
unsupportable.[^49] Thus, in keeping with the Commission's earlier
rejection of this suggestion, the Division rejected Vista's proposal to
allow it to make retroactive payments in order to become eligible for
participation in the 218-219 MHz Service restructuring plan.[^50]

14\. On July 12, 2001, Vista filed the instant Petition.

**III**. **DIscussion**

15\. In its Petition, Vista argues that the Division failed to properly
consider its Waiver Request.[^51] Specifically, Vista alleges that the
Division failed to consider the effect that changes to the installment
payment schedule had upon Vista.[^52] Vista also alleges that the
218-219 MHz restructuring plan is inequitable.[^53] Finally, Vista
contends that the Division failed to address precedent cited in the
Waiver Request that supports the grant of a waiver in this
instance.[^54] For the reasons set forth below, we affirm the Division's
*Vista Order* and deny the Petition.

16\. In the Waiver Request, Vista alleged that it withheld payments out
of confusion over the payment schedule and uncertainty concerning its
obligations as a result of changes in the payment program.[^55] Vista
pointed to changes to the installment payment plan,[^56] including
postponement of the date for the initial installment payment,[^57] and
correspondence from the Commission[^58] to support its allegation that
it was confused and, therefore, appropriately withheld installment
payments after making the March 31, 1997 installment payment.[^59] As we
have noted above, the Division fully examined each of Vista's
allegations in detail and found that Vista's alleged lack of knowledge
with respect to the grace period rules and alleged confusion failed to
demonstrate unique or unusual circumstances that would warrant waiver of
the rules.[^60] For example, the Division explained that the public
notices and correspondence upon which Vista based its Waiver Request
included explanations of the installment payment rules and the
availability of grace periods.[^61] Ultimately, Vista's request for
waiver of the automatic cancellation and grace period provisions of the
installment payment rules was denied, not because the Division failed to
consider the request as required under the "hard look" standard, but
because it found, as we do here, that Vista has not met the Commission's
standards for granting a waiver request.[^62] Thus, the Division
appropriately concluded that Vista had failed to establish a basis for
waiver of the Commission's rules.[^63]

17\. With respect to Vista's contention that the 218-219 MHz financial
restructuring plan is inequitable, as the Division noted, the Commission
has previously considered and rejected this argument in the *218-219 MHz
Second Order on Reconsideration*.[^64] Repetitious petitions such as
this one can potentially delay judicial review where the request places
again before the Commission the same issues it already has addressed
with respect to the same party or similar parties in other
contexts.[^65] Vista has failed to justify further consideration here of
arguments previously rejected by the Commission.[^66] Accordingly, we
see no reason to revisit the issue here.

18\. With respect to Vista's allegation that the Division failed to
address certain orders cited in the Waiver Request,[^67] we find that
Vista's characterization of those cases was incorrect, and Vista
supplied such minimal argument in support of its characterization that
the Division was not required to explain how those cases were
inapplicable. As we explain below, of the two lines of cases cited by
Vista, the first does not involve a waiver analysis applicable to the
installment payment rule, and the second involves circumstances that
Vista does not allege were present.

19\. The first line of orders Vista cited in the Waiver Request involve
requests by winning bidders to waive the Commission's down payment or
final payment rules, not the installment payment rules.[^68] The
Commission has granted a partial waiver of a down payment or final
payment deadline only where the winning bidder's failure to pay was
based on inadvertent error, the bidder immediately remitted payment, and
the bidder provided evidence of an ability to pay at the time of the
original deadline.[^69] Thus, Vista was incorrect in citing those cases
for the overly broad proposition that "the Commission has granted relief
from installment payment obligations where the licensee at all times had
the money when it was due."[^70]

20\. In *Southern Communications*, the Commission explained in detail
that requests for waiver of a winning bidder's down payment or final
payment obligation are of limited applicability with respect to a
licensee's request for waiver of its installment payment
obligation.[^71] In that order, the Commission noted that prior limited
waivers of down payment obligations do not provide support for waiver of
an installment payment obligation because the installment payment rule
has a function, purpose, and burden different from the down and final
payment rules.[^72] Thus, the Commission concluded that the limited
instances where a partial waiver of the down payment rule or the final
payment rule has been granted failed to provide a basis for granting
Southern Communications, Inc.'s request for waiver of its installment
payment obligations.[^73] In light of the fact that Vista failed to
explain how the down payment precedent applied to its Waiver Request,
and given that *Southern Communications* clearly explained that such
precedent was inapplicable, the Division was not required to
specifically explain how the cited precedent was unavailing in this
instance.

21\. The second line of orders cited in Vista's Waiver Request involved
the constructive waiver of the automatic cancellation rule. The two
orders cited, *TE-MCG* and *Lancaster*,[^74] were instances where as a
result of administrative oversight, it was determined that a
constructive waiver of the installment payment deadlines had
occurred.[^75] In contrast to *TE-MCG* and *Lancaster*, in this instance
the Commission did not act in a way that could have been construed as
waiving the installment payment deadline for the June 30, 1997
installment payments.[^76] In light of Vista's failure to offer to
demonstrate or to argue how any Commission actions rose to the level of
constructive waiver, the Division was not required to specifically
explain how these orders were inapplicable to Vista's request.[^77]

**IV. ORDERING CLAUSES**

22\. Accordingly, for the foregoing reasons, IT IS ORDERED that,
pursuant to Sections 4(i), 303(r), 309(j), and 405 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303(r), 309(j), and 405,
and sections 0.331 and 1.106 of the Commission's Rules, 47 C.F.R. §§
0.331 and 1.106, the Petition for Reconsideration filed by Vista
Communications Inc. IS DENIED.

23\. It is FURTHER ORDERED that copies of this Order on Reconsideration
will be sent to Vista Communications Inc. and its representative by
certified mail, return receipt requested

**FEDERAL COMMUNICATIONS COMMISSION**

Kathleen O'Brien Ham Deputy Chief Wireless Telecommunications Bureau

[^1]: Vista Communications, Inc., Petition for Reconsideration (filed
    July 12, 2001) ("Petition").

[^2]: Letter to E. Ashton Johnston, Esq., Counsel for Vista
    Communications, Inc., from Margaret Wiener, Chief, Auctions and
    Industry and Analysis Division, 16 FCC Rcd 12430 (2001) ("*Vista
    Order*").

[^3]: Letter to Thomas Sugrue, Chief, Wireless Telecommunications
    Bureau, from E. Ashton Johnston, Esq., dated June 1, 1999 ("Waiver
    Request"). Vista also filed a supplement to the Waiver Request:
    Letter to Thomas Sugrue, Chief, WTB, FCC, from E. Ashton Johnston,
    Esq., dated Dec. 8, 1999 ("Vista Waiver Supplement").

[^4]: 47 C.F.R. § 1.2110(d) (1994). We note that after the filing of the
    Waiver Request, the Federal Communications Commission ("Commission")
    modified the Part 1 rules, including section 1.2110. 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 15293, 15 FCC Rcd 21520 (2000). However, those
    modifications are not material to the issues discussed here.

[^5]: Interactive Video And Data Service (IVDS) Applications Accepted
    For Filing, *Public Notice*, 9 FCC Rcd 6227 (1994) (Vista submitted
    the winning bids on license IVM135A, Eugene, OR., and license
    IVM148A, Salem, OR.).

[^6]: 47 C.F.R. § 1.2110(d) (1994).

[^7]: 47 C.F.R. § 1.2110(d)(4) (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 Grace Period PN*").

[^8]: Waiver Request at 5 ("Vista halted its payment out of confusion
    over the IVDS payment schedule and uncertainty concerning its
    obligations as a result of the many changes in the overall IVDS
    payment program. Vista did not file a grace period request at the
    time because it did not know it was required to do so.").

[^9]: 47 C.F.R. § 1.2110(e)(4) (1997).

[^10]: 47 C.F.R. § 1.2110(e)(4)(ii) (1997)*.*

[^11]: Waiver Request at 6.

[^12]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service and Amendment of
    Part 95 of the Commission's Rules to Allow Interactive Video and
    Data Service Licensees to Provide Mobile Services (proceeding
    terminated), *Order, Memorandum Opinion and Order, and Notice of
    Proposed Rulemaking*, 13 FCC Rcd 19064 (1998) ("*219-219 MHz Flex
    Order*").

[^13]: Waiver Request.

[^14]: *Id*. at 5-7.

[^15]: *Id*. at 7.

[^16]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service, 15 FCC Rcd 1497,
    at 1506, 1517 ¶¶ 15, 31 ("*218-219 MHz Restructuring Order*").

[^17]: *Id*. at 1520, ¶ 37.

[^18]: *Id*. at 1520, ¶ 38.

[^19]: *Id*. at 1518, ¶ 33 (citing 47 C.F.R. § 1.2110); *see also*
    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)
    ("*IVIDCO Order*"); 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).

[^20]: *218-219 MHz Restructuring 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*) ("*Implementation Public Notice*"); Wireless
    Telecommunications Bureau Announces Revised Election Date and Amends
    Eligibility List for 218-219 MHz Service, *Public Notice,* 16 FCC
    Rcd 5937 (2001) ("*Election Public Notice*").

[^21]: *218-219 MHz Restructuring Order*, 15 FCC Rcd at 1529, ¶ 54.

[^22]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service, Petition for
    Reconsideration and Clarification, submitted by Vista
    Communications, Inc. (Dec. 3, 1999).

[^23]: Amendment of Part 95 of the Commission's Rules to Provide
    Regulatory Flexibility in the 218-219 MHz Service, *Second Order on
    Reconsideration of the Report and Order and Memorandum Opinion and
    Order*, 15 FCC Rcd 25020 (2000) ("*Second Order on
    Reconsideration*").

[^24]: *Id*. at 25031-25033, 25043, ¶¶ 24-29, 50.

[^25]: *Id*.

[^26]: *See*, *e*.*g*., Letter to Elizabeth Michaels, from Rachel Kazan,
    Chief, Auctions Finance and Market Analysis Branch, Wireless
    Telecommunications Bureau, dated January 6, 2000 ("*Vista
    Ineligibility Letter*").

[^27]: *Id*.

[^28]: *Implementation Public Notice*, 15 FCC Rcd 7329; Frequently Asked
    Questions Regarding the Restructuring Rules for the 218-219 MHz
    Service, *Public Notice*, 15 FCC Rcd 7305 (2000). The Bureau also
    had previously released a public notice containing preliminary
    implementation procedures on December 28, 1999. Wireless
    Telecommunications Bureau Announces Preliminary Implementation
    Procedures for 218-219 MHz Service (Formerly known as Interactive
    Video and Data Service (IVDS)), *Public Notice*, 15 FCC Rcd 22
    (1998).

[^29]: *Implementation Public Notice*, 15 FCC Rcd 7329.

[^30]: *Id*.

[^31]: *Election Public Notice*, 16 FCC Rcd 5937.

[^32]: *Vista Communications, Inc. v. FCC*, No. 01-1168 (D.C. Cir, filed
    April 9, 2001).

[^33]: *Vista Order*, 16 FCC Rcd 12430.

[^34]: *Id*. at 12433-12435.

[^35]: *Id*.

[^36]: *Id*. at 12433 (citing *218-219 MHz Second Order on
    Reconsideration*, 15 FCC Rcd at 25032, ¶ 28).

[^37]: *Id.* at 12434, note 38 (citing 47 C.F.R. 0.406 "Persons having
    business with the Commission should familiarize themselves with
    those portions of its rules and regulations pertinent to such
    business").

[^38]: *Id*. at 12434-12435.

[^39]: *Id*.

[^40]: Waiver Request at 7.

[^41]: *Vista Order*, 16 FCC Rcd at 12435 (citing *218-219 MHz Second
    Order on Reconsideration*, 15 FCC Rcd at 25032, ¶ 27.

[^42]: *Id*. at 12436.

[^43]: *Id* at 12436 (citing *218-219 MHz Second Order on
    Reconsideration*, 15 FCC Rcd at 25033, ¶ 29).

[^44]: *Id*.

[^45]: *Id.* at 12435 (citing *218-219 MHz Second Order on
    Reconsideration*, 15 FCC Rcd at 25033, ¶ 29).

[^46]: *218-219 MHz Second Order on Reconsideration*, 15 FCC Rcd at
    25033, ¶ 29 (cited in *Vista Order*, 16 FCC Rcd at 12436); *see
    also* *IVIDCO Order*, 16 FCC Rcd 7236.

[^47]: *218-219 MHz Second Order on Reconsideration*, 15 FCC Rcd at
    25033 ¶ 29 (cited in *Vista Order*, 16 FCC Rcd at 12436).

[^48]: *Id*.; 47 C.F.R. § 1.2110(e)(4)(ii)(1994); *IVDS Grace Period
    PN*, 10 FCC Rcd 10724; *see also* Interactive Video and Data Service
    (IVDS) Licenses, Various Requests by Auction Winners, *Order*, 11
    FCC Rcd 1282, at 1285 ¶ 19 (1995) ("*IVDS Omnibus Order*").

[^49]: *218-219 MHz Second Order on Reconsideration*, 15 FCC Rcd at
    25033 ¶ 29 (cited in *Vista Order*, 16 FCC Rcd at 12436).

[^50]: *Vista Order*, 16 FCC Rcd at 12436.

[^51]: Petition at 2, 13-14, (citing *BellSouth Corp. v. FCC*, 162
    F.3^rd^ 1215, 1224 (D.C. Cir. 1999); 21^st^ Century Telesis, Inc.,
    *Memorandum Opinion and Order*, 15 FCC Rcd 25113 (2000), *aff'd on
    recon*, 16 FCC Rcd 17257(2001) ("*21^st^ Century*"), *aff'd,*
    *21^st^ Century Telesis Joint Venture and 21^st^ Century Bidding
    Corporation v. FCC*, No. 01-1435, 2003 WL 203126 (D.C. Cir. Jan. 31,
    2003); *WAIT Radio v. FCC*, 413 F.2d 1153, 1157 (D.C. Cir. 1969)
    (government agencies must give waiver requests a "hard look" and not
    a perfunctory denial. The "hard look" requirement assures that a
    general rule serving the public interest for a broad range of
    situations will not be rigidly applied where its application would
    not be in the public interest)).

[^52]: Petition at 2-11.

[^53]: Petition at 6; Waiver Request at 7.

[^54]: Petition at 11-13.

[^55]: Waiver Request at 5.

[^56]: Waiver Request at 2; Petition at 4.

[^57]: Waiver Request at 3; Petition at 3-4.

[^58]: Waiver Request at 3-4; Petition at 5-6.

[^59]: Petition at 6.

[^60]: *Vista Order* at 12433-12435 (applying the waiver criteria of 47
    C.F.R. § 1.925).

[^61]: *Id*. at 12433-12434.

[^62]: An entity requesting a waiver must demonstrate that either (i)
    the underlying purpose of the rule(s) would not be served or would
    be frustrated by application in the instant case, and that a grant
    of the requested waiver would be in the public interest; or (ii) in
    view of unique or unusual factual circumstances in the instant case,
    application of the rule(s) would be inequitable, unduly burdensome
    or contrary to the public interest, or the applicant has no
    reasonable alternative. 47 C.F.R. § 1.925(b)(3).

[^63]: *Vista Order*, 16 FCC Rcd at 12433 (quoting the *218-219 MHz
    Second Order on Reconsideration*, 15 FCC Rcd at 25032, ¶¶ 27-28);
    *see* 47 C.F.R. § 1.2110(d)(4)(ii) (1994); *IVDS Grace Period Public
    Notice*, 10 FCC Rcd 10724; *IVDS Omnibus Order*, 11 FCC Rcd at 1285.

[^64]: *218-219 MHz Second Order on Reconsideration*, 15 FCC Rcd at
    25031, ¶ 25.

[^65]: Where the same subject matter is pending before the Commission on
    a reconsideration petition filed by another party, the courts
    typically hold judicial review in abeyance until all related actions
    are resolved by the Commission. *See Home Box Office, Inc. v. FCC*,
    567 F.2d 9, 23 n.27 (D.C. Cir), *cert. denied*, 434 U.S. 829 (1997);
    *Wrather-Alvarez Broadcasting, Inc. v. FCC*, 248 F.2d 646, 648-49
    (D.C. Cir 1957) (holding judicial review in abeyance until
    administrative reconsideration has been completed with respect to
    parties who are not parties to the reconsideration petition); *see
    also Celtronix Telemetry, Inc. v. FCC*, 2001 WL 799945 (D.C. Cir.
    2001); *Bellsouth Corp. v. FCC*, 17 F.3d 1487, 1489-90 (D.C. Cir.
    1994); *Southland Industries v. FCC*, 99 F.2d 117 (1938).

[^66]: It is a waste of administrative resources to address arguments
    regarding the equity of a Commission rule through a waiver petition
    where the Commission has already addressed the specific arguments
    when they were raised in a challenge to the adoption of the rule.
    *See* *Turro v. FCC*, 859 F.2d 1498, 1500 (DC Cir. 1988) (upholding
    the Commission's decision to address via rulemaking, rather than
    through individual *ad hoc* waiver proceedings, two questions of
    policy that were virtually identical to each other, one raised by
    way of a waiver request and the other by way of petition for
    reconsideration).

[^67]: Petition at 11; Waiver Request at 7 (citing Mountain Solutions
    Ltd, Inc., Emergency Petition for Waiver of Section 24.711(A)(2) of
    the Commission's Rules regarding Various BTA Markets in the
    Broadband Personal Communications Services (PCS) C Block Auction,
    *Memorandum Opinion and Order*, 13 FCC Rcd 21983 (1998) ("*Mountain
    Solutions*"); Carolina PCS I Limited Partnership Request for Waiver
    of Section 24.711(a)(2) of the Commission's Rules Regarding BTA Nos.
    B016, B072, B091, B147, B177, B178, B312, B335, AND B436, Frequency
    Block C, *Memorandum Opinion and Order*, 12 FCC Rcd 22938, (1997)
    ("*Carolina PCS*"); Metricom, Inc's Request for Waiver of Section
    27. 208(a) of the Commission's Rules for Wireless Communications
    Service Markets: ME30A, ME45A, ME46A, RE01D, RE05C, RE05D, RE06C,
    RE06D, *Order*, 13 FCC Rcd 890 (WTB 1998) ("*Metricom*"); Magnacom
    Wireless, L.L.C. Request for Waiver of Section 24.716(a)(2) of the
    Commission's Rules, *Order*, 13 FCC Rcd 766 (1998) ("*Magnacom*");
    Letter from Thomas J. Sugrue, Chief, Wireless Telecommunications
    Bureau, to Lloyd W. Coward, Esq., Counsel for TE-MCG Consortium, 14
    FCC Rcd 2173 (1999) ("*TE-CMG*"); Letter from Daniel B. Phythyon,
    Chief, Wireless Telecommunications Bureau, to Thomas Gutierrez,
    Esq., Counsel for Lancaster Communications, Inc., DA 98-2052 1998 WL
    709412 (1998) ("*Lancaster*")).

[^68]: Waiver Request at 7 (citing *Mountain Solutions*, 13 FCC Rcd
    21983; *Carolina PCS*, 12 FCC Rcd 22938; *Magnacom*, 13 FCC Rcd 766
    *Metricom*, 13 FCC Rcd 890).

[^69]: Southern Communications Systems, Inc., *Memorandum Opinion and
    Order*, 15 FCC Rcd at 25109-25111, ¶¶ 13-15 (2000) ("*Southern
    Communications*") (distinguishing the analysis of requests for
    waiver of the installment payment rules from requests for waiver of
    the down payment rules in light of the different provisions and
    purposes of those rules).

[^70]: Waiver Request at 7.

[^71]: *Southern Communications*, 15 FCC Rcd 25103.

[^72]: *Id*. at 25109-25110, ¶¶ 13-15.

[^73]: *Id*. at 25110, ¶ 15.

[^74]: Waiver Request at 7 (citing *TE-CMG*, 14 FCC Rcd 2173;
    *Lancaster*, 1998 WL 709412).

[^75]: *TE-CMG*, 14 FCC Rcd 2173; *Lancaster*, 1998 WL 709412. We note
    that the Court of Appeals for the District of Columbia Circuit has
    rejected attempts to expand the limited scope of the constructive
    waiver cases. *See* Requests for Extension of the Commission\'s
    Initial Non-Delinquency Period for C and F Block Installment
    Payments, *Order*, 13 FCC Rcd 22071 (1998), *aff\'d econ*, Requests
    for Extension of the Commission's Initial Non-Delinquency Period for
    C and F Block Installment Payments, *Memorandum Opinion and Order*,
    14 FCC Rcd 6080 (1999), *aff\'d*, *SouthEast Telephone v. FCC*, 15
    FCC Rcd 17500, 17517) No. 99-1164, (D.C. Cir. Nov. 24, 1999)
    (concluding that "the mere fact that the agency granted TE-MCG's
    request does not require it to grant petitioner's request.").

[^76]: *See* *21st Century*, 16 FCC Rcd at 17265 ¶¶ 20-21 (petitioner
    did not provide a basis for reconsideration of a previous Commission
    order, denying a request for waiver of a payment deadline, where the
    petitioner did not allege that the Commission acted in a way that
    could have been construed as waiving a payment deadline).

[^77]: In its Petition, Vista also fails to provide any facts in support
    of constructive waiver, but rather takes issue with the Commission's
    established view of the significance of these cases. Petition at
    11-13. Vista's attempt to reconstrue these decisions is unavailing
    and does not change our analysis here.