DA 02-1554

Via certified mail, return receipt requested

Mr. Joseph P. Gebhardt

250 South Martin

Zephyr Cove, NV 89448

Mr. John A. Prendergast, Esq.

Blooston, Mordkofsky, Jackson & Dickens

2120 L Street, N.W.

Suite 300

Washington, D.C. 20037

**Re: [Final Default Payments for Auction No. 17]{.underline}**

Dear Messrs. Gebhardt and Prendergast:

New Wave Networks, L.L.C. ("New Wave"), a participant in Auction No. 17,
defaulted on the final payment required on two of the six B block
licenses, B372 and B392, for which it was the winning bidder.[^1]
Auction No. 23, the subsequent auction for the licenses on which New
Wave defaulted, has closed.[^2] Therefore, in accordance with the
Commission's rules, we are now able to calculate New Wave's final
default payment obligations.[^3]

Under the Commission's rules, a bidder who fails to remit the required
down or final payment for a license for which it was the high bidder is
subject to a default payment.[^4] Each default payment is comprised of
two parts. The first component is the difference between the bidder's
net defaulted bid and the net winning bid or the difference between the
bidder's gross withdrawn bid and the subsequent gross winning bid,
whichever is less, the next time the license is offered by the
Commission (so long as the subsequent winning bid is less than the
defaulted bid).[^5] The second component is equal to three percent (3%)
of the defaulter's bid, or the subsequent winning bid, whichever is
less.[^6] If either bid amount is subject to a bidding credit, the three
percent (3%) will be calculated using the same bid amounts and basis
(net or gross bids) as in the first component of the default
payment.[^7] 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 defaulted bid.[^8]

With respect to New Wave's licenses, the Commission previously deducted
an interim default payment for license B372 in the amount of \$14,124,
and an interim default payment for license B392 in the amount of \$3,944
from funds on deposit with the Commission.[^9] The Commission retained
the remaining funds on deposit pending assessment of the full default
payment for licenses B372 and B392.[^10] As shown on Attachment A, in
Auction No. 23, the subsequent auction of licenses B372 and B392, the
winning bid amount of \$932,800 for license B372 was greater than New
Wave's defaulted bid and the winning bid amount of \$237,600 for license
B392 was greater than New Wave's defaulted bid.[^11] Therefore, in
accordance with Section 1.2104 of the Commission's rules, New Wave is
assessed a final default payment with respect to license B372 in the
amount of \$14,124 and a final default payment with respect to license
B392 in the amount of \$3,944.[^12] After applying the interim default
payments, no outstanding balance is owed to the Commission.[^13]
Accordingly, the Commission is prepared to refund the payor(s) of
record, the \$31,182 remaining funds on deposit with the Commission. To
obtain a refund, the payor(s) of record[^14] must submit a request(s) in
accordance with the instructions set forth in Attachment B.

This letter shall be sent to the applicant and its representatives by
certified mail, return receipt requested. If you have any additional
questions or require further information, please contact Regina M.
Martin in the Auctions and Industry Analysis Division at (202) 418-0660.

> Sincerely,
>
> Margaret W. Wiener, Chief
>
> Auctions and Industry Analysis Division

**[ATTACHMENT A]{.underline}**

**LMDS Multipoint Distribution Service Auction**

**Multi-Auction Refund Report**

  ----------- --------------- -------------- ---------------- -------------- -------------
  **License   **Market        **Net Bid      **New Wave's     **Reauction    **The Final
  No.**       Description**   Amount         Interim Default  Net Bid        Default
                              (Auction 17)** Payment (3% of   (Auction 23)** Payment Due
                                             New Wave's net                  for Each
                                             bid)**                          License**

  B372        Reno, NV        \$470,000.00   \$14,124.00      \$932,800.00   \$14,124.00

  B392        St. George, UT  \$131,450.00   \$3,944.00       \$237,600.00   \$3,944.00

                                                                             

                                                                             

              **Remaining                                                    \$31,182.00
              Funds on                                                       
              Deposit with                                                   
              the                                                            
              Commission**                                                   

              **Refund Amount                                                \$31,182.00
              Due**                                                          
  ----------- --------------- -------------- ---------------- -------------- -------------

**[ATTACHMENT B]{.underline}**

**REQUESTING REFUND INSTRUCTIONS**

In order to process refund requests, the FCC must receive wire transfer
instructions that include the

following information:

> Name and Address of Bank
>
> ABA Number
>
> Contact and Phone Number
>
> Account Number to Credit
>
> Name of Account Holder
>
> Tax Identification Number
>
> FCC Registration Number
>
> Correspondent Bank (if applicable)
>
> ABA Number
>
> Account Number

Please include your Taxpayer Identification Number (TIN) and a copy of
this letter. This information

should be sent to the Auctions Accounting Group:

> Federal Communications Commission
>
> Auctions Accounting Group
>
> Attn: Gail Glasser or Tim Dates
>
> 445 12^th^ Street, S.W., Room 1-C863
>
> Washington, DC 20554

Requests can also be faxed to the Auctions Accounting Group at (202)
418-2843.

[^1]: New Wave was the winning bidder on the following six markets: (1)
    B038 (Bend, OR); (2) B144 (Flagstaff, AZ); (3) B254 (Lihue, HI); (4)
    B371 (Redding, CA); (5) B372 (Reno, NV); and (6) B392 (St. George,
    UT). "LMDS Auction Closes," *Public Notice*, 13 FCC Rcd 18217 (1998)
    ("*Auction No. 17* *Closing PN*"). New Wave failed to submit
    sufficient funds to cover the final payment for all six markets.
    However, as permitted by Commission rules, New Wave was allowed to
    selectively default on two 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, 14 FCC Rcd 6323 (1999) ("*New Wave Order*").

[^2]: "LMDS Auction Closes," *Public Notice*, 14 FCC Rcd 8543 (1999)
    ("*Auction No. 23* *Closing PN*").

[^3]: 47 C.F.R. § 1.2104 (1998).

[^4]: 47 C.F.R. §§ 1.2109(c) and 1.2104(g)(2) (1998).

[^5]: 47 C.F.R. § 1.2104(g)(2) (1998).

[^6]: *Id.*

[^7]: *Id.*

[^8]: *Id.*

[^9]: Thus, after deducting the interim default payments for B372 and
    B392 and the final payment for four licenses (B038, B144, B254, and
    B371) \$31,182 remained on deposit with the Commission. *New Wave
    Order*, 14 FCC Rcd 6323 (1999).

[^10]: *New Wave Order*, 14 FCC Rcd 6323, Attachment (1999).

[^11]: "LMDS Auction Closes," *Public Notice*, 14 FCC Rcd 8543 (1999)
    ("*Auction No. 23* *Closing PN*").

[^12]: *New Wave Order*, 14 FCC Rcd 6323 (1999).

[^13]: 47 C.F.R. § 1.2104(g)(2) (1999).

[^14]: *See* Entertainment Unlimited, Inc., Request for Refund of Late
    Payment Fees for PCS Licenses Purchased in Auction No. 22,
    *Memorandum Opinion and Order*, 16 FCC Rcd. 10,030 (2001) (noting
    that the Commission does not accept instructions regarding the
    refund of excess upfront payments from entities or individuals other
    than the payor of record).