Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Application of )

)

PCS Partners, L.P. ) File No. 0000369312

)

> **ORDER**

Adopted: February 27, 2001 Released: February 27, 2001

By the Chief, Commercial Wireless Division, Wireless Telecommunications
Bureau:

I. Introduction

1\. On February 16, 2001, PCS Partners, L.P. (PCS Partners) filed a
request for waiver of section 1.2107(c) of the Commission\'s Rules,[^1]
asking the Commission to allow it to submit its long-form application,
FCC Form 601, after the deadline of February 12, 2001 for filing
long-form applications in the C and F Block Personal Communications
Services (PCS) Auction (Auction No. 35) (C&F Block PCS Auction). For the
reasons discussed below, we grant PCS Partners\' waiver request.

II\. Background

2\. PCS Partners, a winning bidder in the C&F Block PCS Auction, was
required to file its long-form application, FCC Form 601, no later than
February 12, 2001, pursuant to section 1.2107(c) of the Commission\'s
Rules and the *Closing PN*.[^2] PCS Partners filed its long-form
application, which included the waiver request, on February 16, 2001,
four days after the long-form application filing deadline.[^3]

3\. In its waiver request, PCS Partners argues that good cause exists
for a waiver of section 1.2107(c) of the Commission\'s Rules.[^4] PCS
Partners contends that it missed the long-form filing deadline due to an
"administrative oversight."[^5] PCS Partners states that it is a very
small company and that David G. Behenna is its only employee and is
generally responsible for all of PCS Partners' operational
responsibilities.[^6] PCS Partners notes that because its upfront
payment exceeded the amount of its down payment, it was not required to
make a down payment on February 12, 2001. It explains that while Mr.
Behenna knew that no payment was due, he did not realize that the
application deadline had passed.[^7] PCS Partners' further states that,
upon discovering that it had missed the long-form filing deadline, it
took immediate action to correct its error and expeditiously prepared
and filed its application.[^8]

4\. PCS Partners represents that entities run by Mr. Behenna have
successfully participated in auctions in the past, currently hold
licenses, and previously have always complied with the Commission's
rules.[^9] It further argues that PCS Partners did not exhibit bad faith
because Mr. Behenna focused on ensuring that PCS Partners' financial
obligations with the Commission were satisfied, and was aware that he
had sufficient funds on deposit such that no additional payments were
due until the license is granted.[^10]

5\. PCS Partners urges, finally, that strict application of the filing
deadline would be inequitable and contrary to the public interest.[^11]

III\. Discussion

6\. A request for waiver of the subject rule must affirmatively show
that either: (a) the underlying purpose of the rule would not be served
in a particular case and that grant of the waiver is otherwise in the
public interest; or (b) the \"unique facts and circumstances of a
particular case render application of the rule inequitable, unduly
burdensome, or otherwise contrary to the public interest.\"[^12] One of
the primary purposes underlying the post-auction application filing
deadlines is to ensure that a bidder meets the Commission\'s
qualification and eligibility requirements in order to \"avoid delays in
the deployment of new services to the public that would result from
litigation, disqualification, and re-auction.\"[^13]

7\. We believe that PCS Partners has presented sufficient facts that,
when considered in their totality, demonstrate unique circumstances that
meet the standard for a waiver of the subject rules. The record
indicates that, prior to the late filing of its long-form application,
PCS Partners had complied with all previous C&F Block PCS Auction filing
requirements. [^14] Additionally, PCS Partners had, by virtue of its
large upfront payment, timely submitted its required down payment. There
is no indication in the record that PCS Partners\' error was part of a
deliberate effort to delay the processing of its long-form application,
or was the result of bad faith on the part of PCS Partners. On the
contrary, we note that upon discovering that it had missed the filing
deadline, PCS Partners immediately prepared and filed its application.
Accordingly, PCS Partners' actions demonstrate that, but for its
inadvertent error, PCS Partners likely would have timely filed its
long-form application.

8\. Under the circumstances presented by PCS Partners, we conclude that
the public interest would not be served by dismissal of this
application. In reaching this conclusion, we give considerable weight to
PCS Partners' prior record of compliance in the C&F Block PCS Auction
and its prompt action to remedy its delinquency. We also recognize that,
because PCS Partners had timely met its down payment requirements, and
had submitted its long-form application within days of the filing
deadline, the post-auction licensing process for the C&F Block PCS
Auction has not been significantly delayed or materially adversely
affected. Thus, we believe some flexibility is appropriate in this
instance. Accordingly, we will hereby grant PCS Partners' waiver request
and accept its application for processing. This decision comports with
Bureau precedent wherein spectrum auction applicants were granted
partial relief for minor, inadvertent post-auction delinquencies that
did not disrupt the auction process or undermine the Commission\'s
policy of facilitating rapid implementation of reliable communications
service to the public.[^15]

9\. Although we grant PCS Partners a waiver of the rules requiring
dismissal of a late-filed long-form application and associated
imposition of default payment obligations, we nonetheless note that PCS
Partners failed to comply with the Commission\'s rules when it filed its
long-form application four days late. PCS Partners admits that its late
filing was the result of its own error. PCS Partners was on notice that
it was responsible for complying with the Commission\'s processing
rules, and that it would be subject to default payments if it failed to
timely file its Form 601.[^16] PCS Partners' failure to timely submit
its Form 601 imposed an additional administrative burden on the
Division. The timely filing of long-form applications is important to
the efficiency of the competitive bidding licensing process.
Consequently, the fact that PCS Partners' error appears inadvertent does
not excuse its failure to meet the long-form application filing
deadline. Accordingly, we will refer this matter to the Commission's
Enforcement Bureau.

IV\. Conclusion and Ordering Clauses

10\. For the foregoing reasons, we believe that the public interest
would not be served by strictly applying the Commission\'s long-form
filing deadline in this instance. Therefore, PCS Partners' waiver
request is granted to the extent that we will accept its application for
processing. We further believe that our acceptance of the application in
this case will not undermine the policies served by the rules that are
the subject of PCS Partners' waiver request or disrupt the C&F Block PCS
Auction process and post-auction licensing.

11\. Accordingly, IT IS ORDERED that pursuant to 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 section 0.331 of the Commission\'s Rules, 47
C.F.R. § 0.331, the waiver request filed by PCS Partners on February 16,
2001 is HEREBY GRANTED.

.

> FEDERAL COMMUNICATIONS COMMISSION

William W. Kunze

Chief, Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: 47 C.F.R §1.2107(c).

[^2]: *See* Public Notice, "C and F Block Broadband PCS Auction Closes,
    Winning Bidders Announced," DA 01-211 (rel. Jan. 29, 2001) (*Closing
    PN*).

[^3]: The waiver request was attached as Exhibit G to PCS Partners
    long-form application. *See* File No. 0000369312, Exhibit G
    (Waiver).

[^4]: 47 C.F.R § 1.2107(c).

[^5]: *See* Waiver at 1.

[^6]: See *id*. at 4.

[^7]: *Id*.

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

[^9]: *Id*. at 5.

[^10]: *Id.* at 4.

[^11]: *Id.* at 6.

[^12]: 47 C.F.R § 1.925(b)(3).

[^13]: "Implementation of Section 309(j) of the Communications Act -
    Competitive Bidding, Second Report and Order, PP Docket No. 93-252,
    9 FCC Rcd 2348, 2382 (1994).

[^14]: ^?^ *See* Public Notice, "Auction Of Licenses For The C And F
    Block Broadband PCS Spectrum , 87 Qualified Bidders," DA 00-2725
    (rel. Dec. 1, 2000).

[^15]: *See,* *e.g.,* In the Matter of Application of Pinpoint
    Communications, Inc., *Order*, 14 FCC Rcd 6421 (PSPWD 1999).

[^16]: *See Closing PN*, DA 01-211; C and F Block Broadband PCS Spectrum
    Auction Sheduled for December 12, 2000, Notice and Filing
    Requirements for 422 License in the C and F Block Broadband PCS
    Spectrum Auction, *Public Notice*, DA 00-2259 (rel. Oct. 5, 2000).