**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**MEMORANDUM OPINION AND ORDER**

**Adopted:** February 27, 2007 **Released:** February 27, 2007

By the Chief, Auctions and Spectrum Access Division, Wireless
Telecommunications Bureau:

**I. INTRODUCTION**

1.  The Auctions and Spectrum Access Division (Division) has before it
    requests submitted by three unsuccessful bidders seeking the award
    to them of four FM radio construction permits on which they bid, but
    did not win, in Auction Nos. 37 and 62. The three petitioners are
    Glory Communications, Inc. (Glory), [^1] Jeremy Itz (Itz), [^2] and
    2510 Licenses, LLC (2510 Licenses). [^3] These parties seek to have
    the construction permits awarded to them for the amount of their own
    bids (which were not the highest bids submitted during the
    auction).[^4] With respect to three of the subject permits, the
    petitioners had placed high bids on them prior to submission of
    higher bids by other bidders and withdrawal of the higher bids prior
    to the close of the auction. After the higher bids were withdrawn,
    these permits received no further bids and, pursuant to the
    announced procedure for the auctions, were not awarded. The
    remaining permit at issue here received a winning bid in Auction No.
    37; however, after the close of the auction, the winning bidder for
    the permit defaulted on its bid. For the reasons discussed below, we
    deny all of the requests.

**II. BACKGROUND**

2.  In Auction No. 37, the Commission made available 288 construction
    permits in the FM broadcast service for stations in various markets
    throughout the United States, Guam and American Samoa.[^5] On
    October 18, 2004, the Commission announced that 456 applicants were
    qualified to bid in Auction No. 37, including Glory and Itz.[^6]
    Auction No. 37 began on November 3, 2004 and closed on November 23,
    2004.[^7] On December 1, 2004, the Commission announced that 110
    bidders won 258 of the 288 construction permits offered in the
    auction.[^8]

3.  In Auction No. 62, the Commission made available 171 construction
    permits for FM broadcast stations in various markets throughout the
    United States and the U.S. Virgin Islands. On December 21, 2005, the
    Commission announced that 214 applicants were qualified to
    participate in Auction No. 62, including 2510 Licenses.[^9] Auction
    No. 62 began on January 12, 2006 and closed on January 31, 2006.
    [^10] On February 8, 2006, the Commission announced that 96 bidders
    won 163 of the 171 construction permits offered in the auction.[^11]

4.  Under the procedures in effect for Auction Nos. 37 and 62, bidders
    were permitted to withdraw provisionally winning bids from previous
    rounds, but each bidder was limited to making withdrawals in no more
    than two rounds in Auction No. 37, and in no more than one round in
    Auction No. 62.[^12] After a bid withdrawal, the Commission served
    as the "place holder" high bidder until there was a provisionally
    winning high bid for that construction permit at the close of a
    subsequent round. In both auctions, after a bid withdrawal, the
    minimum acceptable bid for that construction permit in the next
    round became the second highest bid received for the permit in the
    prior rounds.[^13]

5.  As in other Commission auctions, in Auction Nos. 37 and 62, a
    bidder's eligibility to bid on construction permits was determined
    by the amount of the upfront payment it submitted. Each construction
    permit was assigned a specific number of bidding units that were
    equal to the upfront payment for that permit, on a bidding unit per
    dollar basis.[^14] The amount of a bidder's upfront payment
    determined its initial maximum eligibility as measured in bidding
    units, i.e., the total number of bidding units on which a bidder
    could place bids at one time.[^15] A bidder's upfront payment is not
    attributed to specific construction permits, but in order to bid on
    a construction permit for which it had applied, a qualified bidder
    was required to have an eligibility level that met or exceeded the
    number of bidding units assigned to that construction permit.

6.  As in other auctions, bidders in Auction Nos. 37 and 62 could not
    increase their maximum eligibility during the auction. However, a
    bidder's bidding eligibility level could decrease during the course
    of the auction if it did not actively bid. In order to ensure that
    the auction closed within a reasonable period of time, an activity
    rule required bidders to bid actively throughout the auction, rather
    than wait until late in the auction before participating. Thus,
    bidders were required to be active on a specific percentage of their
    current bidding eligibility during each round of the auction.
    Activity was measured by the number of bidding units associated with
    the construction permits upon which the bidder placed a bid during a
    bidding round and with the construction permits upon which it was
    the provisionally winning bidder.[^16] A bidder that did not satisfy
    the activity rule either incurred a permanent reduction in its
    bidding eligibility in the next round or was required to use one of
    the limited number of activity rule waivers each bidder was
    granted.[^17]

7.  Section 1.2109 of the Commission's rules provides that if a winning
    bidder fails to timely make a required payment after the close of an
    auction, is found unqualified to be a licensee, or defaults or is
    disqualified for any reason after the close of an auction, the
    Commission, at its discretion, may either re-auction the license or
    permit to existing or new applicants or offer it to other highest
    bidders, in descending order, at their final bids.[^18] With respect
    to instances when a provisionally winning bidder withdraws its bid
    prior to the close of an auction, the Commission's competitive
    bidding rules do not provide that the Commission may offer the
    license or permit to the next highest bidders. As described in more
    detail below, in both these situations, the Commission has
    re-auctioned the licenses or permits rather than offer them to other
    highest bidders.

8.  *Glory*. Glory was an unsuccessful bidder on construction permits
    for FM stations at New Albany, Mississippi and New Augusta,
    Mississippi, in Auction No. 37 and asks that it now be permitted to
    purchase those permits. The highest bid received on the New Albany
    permit was placed by Cumulus Licensing, LLC (Cumulus) in round 20,
    as the provisionally winning bidder.[^19] Cumulus also placed the
    highest bid on the New Augusta permit, as the provisionally winning
    bidder in round 21.[^20] Glory placed its highest bids for the New
    Albany and New Augusta permits in round 19. While Glory was the
    second highest bidder on the New Albany permit, [^21] it was just
    one of three bidders that placed the third highest bid for the New
    Augusta permit.[^22] Cumulus withdrew its provisionally winning bids
    on both the New Albany and New Augusta permits in round 45. At the
    time Cumulus withdrew, Glory's bidding eligibility was insufficient
    for it to place a bid on either permit. No bidder submitted any bids
    on the New Albany and New Augusta permits in the following 17 rounds
    of the auction. Thus, the auction closed after round 62 with the two
    permits unsold.[^23] Glory requests that we grant it the New Albany
    permit for the amount of its provisionally winning bid in round
    17,[^24] which is \$48,000 less than its \$276,000 provisionally
    winning bid on that permit in round 19.[^25] Glory also requests
    that we grant it the New Augusta permit for the amount of its
    provisionally wining bid in round 15,[^26] which is \$209,000 less
    than the provisionally winning bid submitted by the second highest
    bidder on that permit in round 20.

9.  *2510 Licenses*. 2510 Licenses' request is based on its
    participation in FM Auction No. 62. 2510 Licenses was an
    unsuccessful bidder in that auction on a construction permit for an
    FM station at Meyersdale, Pennsylvania, but asks that we waive
    section 1.2109(b) of the Commission's rules and offer it the
    permit.[^27] The highest bid on the Meyersdale permit was placed by
    Radioactive, LLC, as the provisionally winning bidder in round
    50.[^28] 2510 Licenses was the second highest bidder on the
    Meyersdale permit, submitting the provisionally winning bid in round
    49.[^29] Radioactive withdrew its provisionally winning bid on the
    permit in round 60. At the time Radioactive withdrew its bid, 2510
    Licenses did not have sufficient bidding eligibility remaining to
    place a bid on the permit. [^30] No bidder submitted any bids on the
    Meyersdale permit in the following round of the auction and Auction
    62 closed after round 61 with the permit unsold.[^31] 2510 Licenses
    requests that we grant it the Meyersdale permit for the amount of
    its provisionally winning bid on that permit in round 23, which is
    \$406,000 less than its \$551,000 provisionally winning bid on that
    permit in round 49.[^32]

10. *Itz.* We also consider a request by Jeremy Itz (Itz) submitted
    after the Commission announced, on April 14, 2005, that FM station
    construction permits unsold in Auction No. 37 would be available in
    Auction No. 62.[^33] Itz was an unsuccessful bidder on a
    construction permit for an FM station at Mason, Texas. The winning
    bid on the Mason permit was placed by Spearman Properties, LLC in
    round 24.[^34] Itz was the second highest bidder on the Mason
    permit, submitting the provisionally winning bid in round 22.[^35]
    After Spearman Properties placed its final bid, no other bids for
    this permit were submitted in the following 38 rounds of the
    auction, and at the close of Auction No. 37, Spearman Properties was
    the winning bidder.[^36] Spearman Properties subsequently defaulted
    on its bid after the close of the auction.[^37] Itz does not request
    a waiver, but contends that based on the post-auction default, he
    should be able to acquire the Mason permit for the amount of his
    highest bid.[^38]

**III. DISCUSSION**

**A. Glory and 2510 Licenses Requests**

11. 2510 Licenses requests a waiver of Section 1.2109(b) of the
    Commission\'s rules to permit the grant to it of the Meyersdale
    construction permit.[^39] Section 1.2109(b) of the Commission's
    rules provides that, if a winning bidder withdraws or defaults
    *after* the close of an auction, the Commission may, at its
    discretion, offer licenses to other high bidders in descending order
    at their final bids.[^40] Pursuant to Section 1.3 of the
    Commission\'s rules, we may waive rule provisions \"for good cause
    shown\" by the petitioner.[^41] As interpreted by the courts, this
    standard requires that a petitioner demonstrate that "special
    circumstances warrant a deviation from the general rule and such
    deviation will serve the public interest."[^42]

12. 2510 Licenses asserts that Section 1.2109(b) should be applied here
    where bids were withdrawn *before* the auction closed, arguing that
    this is similar to a default by a winning bidder after the auction
    closes.[^43] We disagree. Section 1.2109(b) was intended to address
    only the narrow circumstance when a bidder defaults *after* the
    close of the auction.[^44] In addition, neither Glory nor 2510
    Licenses has identified any case in which the Wireless
    Telecommunications Bureau (Bureau) or Commission, in the context of
    a withdrawal occurring before the close of an auction, granted
    waivers in order to offer unsold authorizations to the next highest
    bidder. In fact, in previous auctions when bid withdrawals occurring
    before the close of the auction resulted in similar waiver requests
    by the second highest bidders, the Division refused to grant such a
    waiver in *Banks Broadcasting,* and the Bureau refused to do so in
    *Harbor Wireless*.[^45]

13. We are not persuaded that the public interest would be served by
    granting either Glory or 2510 Licenses a waiver and offering the
    subject construction permits to these unsuccessful bidders outside
    the auction process. An argument that a waiver would serve the
    public interest is not sufficient grounds for granting a waiver
    unless the applicant also shows that application of the rule would
    not serve its underlying purpose or that unique or unusual
    circumstances are involved.[^46] After analyzing each of their
    requests, we find that Glory and 2510 Licenses have not made a
    sufficient showing to meet this standard, for the reasons discussed
    below.

14. When the Commission adopted its rules governing defaults by a
    winning bidder *after* the close of an auction, it even then stated,
    as a general matter, that the best course of action would be to
    re-auction the spectrum.[^47] In the *Competitive Bidding Second
    Report and Order*, the Commission noted that one of its primary
    concerns is that licenses be awarded to the parties that value them
    most highly, and in the situation of a winning bidder\'s withdrawal
    after the close of an auction, this can best be assured through a
    re-auction.[^48] In a later rulemaking proceeding, the Commission
    considered revisions to Section 1.2109(b) and decided to reserve
    discretion to either re-auction the spectrum associated with a
    defaulted license or offer it to the other highest bidders (in
    descending order) at their final bids.[^49] The Commission noted in
    that order, however, that offering spectrum associated with a
    defaulted license to the next highest bidder at its final bid amount
    may not ensure that the license will be awarded to the bidder who
    values it most highly.[^50] In particular, the Commission observed
    that \"other parties can argue that they would pay more for the
    license if given the opportunity.\"[^51] Moreover, when more than
    one license is being auctioned, applicants\' backup strategies may
    shift during the course of the auction, affecting the value placed
    on any individual license by a particular bidder.[^52] We have not
    identified any case in which an applicant has made a convincing
    showing that the Commission should, in the context of a default
    occurring after the auction closed, exercise its discretion under
    Section 1.2109(b) to offer unsold licenses to the next highest
    bidder.

15. Based on the policies adopted in these Commission rulemaking orders,
    the Bureau previously has rejected arguments made by unsuccessful
    bidders that are similar to the arguments 2510 Licenses
    presents.[^53] In *Harbor Wireless* and *Banks Broadcasting*, the
    petitioners were the second highest bidders on several licenses
    which remained unsold at the end of the auction after the
    provisionally winning bidders had withdrawn their bids and the
    petitioners had insufficient bidding eligibility to bid on the
    licenses. 2510 Licenses argues that its waiver request is
    distinguishable from *Harbor Wireless* based on its assertion that
    no other bidders would be prejudiced by granting their requests,
    because such other bidders submitted lower bids than it. 2510
    Licenses also attempts to distinguish itself from *Harbor Wireless*
    by claiming that the communities Harbor Wireless wished to serve had
    existing services, while Meyersdale lacks a second FM station.[^54]
    2510 Licenses further attempts to distinguish *Harbor Wireless* as a
    decision involving wireless services for which blocks of licenses
    are auctioned within shorter time intervals than FM construction
    permits.[^55] We find no merit in any of these arguments. In *Harbor
    Wireless*, as in 2510 Licenses\' case, a provisionally winning
    bidder withdrew its bid after Harbor Wireless, the next highest
    bidder, had exhausted its eligibility, and the licenses went
    unsold.[^56] Harbor Wireless also sought a waiver of Section
    1.2109(b) and asked the Commission to offer it the license at Harbor
    Wireless's next-highest bid, making many of the same arguments as
    2510 Licenses. In *Harbor Wireless*, the Bureau decided that a
    bidder\'s \"lack of sufficient unused eligibility to bid on the
    Licenses does not rise to the level of a unique or unusual
    circumstance, warranting special consideration by the
    Commission.\"[^57] In denying the request, *inter alia*, the Bureau
    specifically rejected the unsuccessful bidder\'s assertion that a
    waiver of Section 1.2109(b) was appropriate to award it the licenses
    as the party that valued them the most highly.[^58] Instead, the
    Bureau determined that the best alternative was to re-offer those
    licenses in a subsequent auction.[^59] This is the course we have
    followed here for the construction permits that were unsold in
    Auction Nos. 37 and 62.[^60]

16. The bidding activity and eligibility requirements in Auction Nos. 37
    and 62 were integral components of the auction process. The activity
    and eligibility procedures were announced after potential bidders
    were provided with notice and opportunity for comment and they were
    applied uniformly to all bidders in the auction.[^61] The bidding
    activity and eligibility procedures serve several important
    functions that are necessary to promote efficient auction processes
    and outcomes. These procedures encourage bidders to make early bids
    in the auction, rather than waiting until later rounds to
    participate. [^62] Prompt and early participation by a bidder in the
    auction reveals useful information to other bidders about its demand
    and valuations for licenses.[^63] This transparent process allows
    bidders to modify their strategies based on current prices.[^64] The
    activity and eligibility procedures also help maintain the pace of
    the auction, which reduces costs to bidders and the Commission.[^65]
    By promoting an efficient auction process, these procedures increase
    the likelihood that the winning bidder will be the party that most
    highly values the license.[^66]

17. The fact that operation of the activity and eligibility procedures
    resulted in Glory and 2510 Licenses not having sufficient bidding
    eligibility to place bids on the New Albany, New Augusta and
    Meyersdale permits after the high bidders withdrew their bids was
    not a unique or unusual circumstance. We cannot conclude that Glory
    and 2510 Licenses were the only bidders so situated at that stage of
    the auction. Indeed, other bidders also may have been without
    sufficient eligibility to place bids on these construction permits
    after the highest bids were withdrawn. Neither Glory nor 2510
    Licenses has addressed the possibility that after the subject bid
    withdrawals occurred, other bidders might have based their bidding
    strategies on the fact that the Commission's rules do not provide
    for an offer of the permits to the next highest bidders, and thus
    the permits, if they remained unsold, would be re-auctioned.[^67] We
    therefore decline to grant the Glory and 2510 Licenses requests,
    which would effectively grant them a waiver of the Auction Nos. 37
    and 62 bidding activity and eligibility procedures that applied to
    all bidders in those auctions.[^68]

18. We also do not find that application of the rule in the instant
    cases would not serve its underlying purpose as explained above.
    2510 Licenses provides no support for its argument that it is the
    only bidder interested in the Meyersdale construction permit.[^69]
    2510 Licenses\' argument is undermined by the fact that two bidders
    in addition to 2510 Licenses bid on this construction permit during
    Auction No. 62.[^70] The party that values an authorization most
    highly is determined by the highest bid within the established
    competitive bidding rules and procedures, and not by a bidder's
    interpretation of bidding activity after the auction is closed.[^71]
    Waiver of Section 1.2109(b) after the auction to offer permits on
    which Glory and 2510 Licenses lacked sufficient unused eligibility
    to bid after the high bidders\' withdrawals would be unfair to other
    bidders in Auction Nos. 37 and 62 that might otherwise have bid for
    those construction permits.[^72] Such action could undermine the
    integrity of the auction process.[^73]

19. In addition, we are not persuaded by the argument of 2510 Licenses
    that denial of its waiver request would harm the public interest
    because it would waste scarce Commission resources, due to delays
    before re-auction, or that re-auction would be unfair due to
    potential different bidding results.[^74] We reject 2510 Licenses\'
    unsubstantiated claim that it will provide FM service to Meyersdale
    more quickly than a winning bidder in a subsequent auction.[^75] As
    explained above, we believe that the best approach was to make the
    FM construction permits unsold in Auction Nos. 37 and 62 available
    promptly in another auction.[^76]

20. While we reach the same conclusions with respect to Glory\'s request
    to be granted the FM station construction permits at New Albany and
    New Augusta, Mississippi, our reasoning applies with even greater
    force because Glory did not place even the second highest bid for
    the New Augusta permit.[^77] Thus, there was at least one bidder in
    Auction No. 37 that valued the New Augusta construction permit more
    highly than Glory.[^78] Glory presents no argument for why it should
    be granted a waiver and offered the New Augusta permit as the third
    highest bidder for the permit.

**B. Itz Request**

21. In comments responding to a Public Notice seeking comment on minimum
    opening bids and other procedures for Auction No. 62, Itz contends
    that he should be granted a construction permit for an FM station at
    Mason, Texas at the amount of his bid in round 22 of Auction No. 37
    because the winning bidder for the permit defaulted after the
    auction closed.[^79] Although Itz was the second highest bidder for
    the Mason permit and Section 1.2109(b) gives the Commission
    discretion to offer a permit to a second highest bidder if a winning
    bidder defaults after the close of the auction, we decline to do so
    here.

22. As explained above, when the Commission first adopted rules
    governing defaults by a winning bidder, it stated, as a general
    rule, that the best course of action would be to re-auction the
    spectrum.[^80] While the Commission decided to reserve discretion to
    either re-auction the spectrum associated with a defaulted license
    or offer it to the next highest bidders (in descending order) at
    their final bids, it also noted that offering spectrum associated
    with a defaulted license to the next highest bidder at its final bid
    amount may not ensure that the license will be awarded to the bidder
    who values it most highly.[^81]

23. Itz provides no clear reason for why we should not re-auction the
    particular construction permit in question. We are not persuaded by
    his unsupported claim that Auction No. 37 will be a "clean and fair
    auction" only if we offer the Mason construction permit to Itz as
    the second highest bidder at its final bid.[^82] Itz asserts that he
    should be offered the Mason permit at his final bid amount, if we
    offer licenses to any of the other Auction No. 37 participants who
    were not the winning bidder on such licenses and made a similar
    request.[^83] For the reasons discussed above, we deny Glory's and
    2510 Licenses' requests. For the same reasons we also deny Itz\'s
    request.

**IV. CONCLUSION**

24. Consistent application to all bidders of the auction rules is
    essential to a fair and efficient licensing process, and is fair to
    all auction participants, including those who won construction
    permits and those who did not.[^84] The activity and bidding unit
    eligibility rules were announced in advance of the auctions and
    applied uniformly to all bidders in Auction Nos. 37 and 62, creating
    a predictable and fair procedure for all participants.[^85] The
    requests before us fail to persuade us to exempt Glory, 2510
    Licenses and Itz from those requirements after the close of the
    auctions.

**V. ORDERING CLAUSES**

25. ACCORDINGLY, IT IS ORDERED that the waiver requests submitted by
    Glory Communications, Inc. and 2510 Licenses, LLC ARE HEREBY DENIED.

26. IT IS FURTHER ORDERED that the request submitted by Jeremy Itz for
    award of an FM station construction permit outside of the
    competitive bidding process, pursuant to the discretionary authority
    in 47 C.F.R. § 1.2109(b) IS HEREBY DENIED.

27. IT IS FURTHER ORDERED that the request of Talkline Communications,
    Inc. that its January 18, 2005 Petition for Waiver be dismissed IS
    GRANTED and that the Petition for Waiver IS HEREBY DISMISSED WITH
    PREJUDICE.

28. These actions are taken under delegated authority pursuant to
    Sections 0.131 and 0.331 of the Commission\'s rules, 47 C.F.R. §§
    0.131 and 0.331.

FEDERAL COMMUNICATIONS COMMISSION

Margaret W. Wiener

Chief, Auctions and Spectrum Access Division

Wireless Telecommunications Bureau

[^1]: Letter from Alex Snipe, President, Glory Communications, Inc., to
    Marlene H. Dortch, Secretary, FCC, dated Nov. 24, 2004 ("Glory
    Request").

[^2]: Comments of Jeremy Itz for Auction No. 62, filed April 29, 2005
    ("Itz Request"). Itz filed his request in comments responding to a
    public notice seeking comment on procedures for Auction No. 62.
    *See* Auction of FM Broadcast Construction Permits Scheduled for
    November 1, 2005, Comment Sought on Reserve Prices or Minimum
    Opening Bids and Other Auction Procedures for Auction No. 62,
    *Public Notice*, 20 FCC Rcd 7999 (2005) ("*Auction No. 62 Comment
    Public Notice*"); Auction of FM Broadcast Construction Permits
    Scheduled for November 1, 2005, Notice and Filing Requirements,
    Minimum Opening Bids, Upfront Payments and Other Procedures for
    Auction No. 62, *Public Notice*, 20 FCC Rcd 10492 (2005) ("*Auction
    No. 62 Procedures Public Notice*"). We act on Itz's Request despite
    his having filed it in comments on Auction No. 62. *Cf.* 47 C.F.R. §
    1.44 (separate pleadings for different requests).

[^3]: 2510 Licenses, LLC, Petition for Waiver and Request for Expedited
    Action, filed February 22, 2006 ("2510 Licenses Petition").

[^4]: We also received similar waiver requests from Wildcat
    Communications LLC (Wildcat) and Bigglesworth Broadcasting, LLC
    (Bigglesworth) in letters dated November 23, 2004, and a Petition
    for Waiver filed by Talkline Communications, Inc. (Talkline) on
    January 18, 2005. Wildcat and Bigglesworth (through its
    successor-in-interest Connoisseur Media, LLC) withdrew their waiver
    requests on August 31, 2005, and February 9, 2006, respectively.
    Talkline requested dismissal of its Petition for Waiver on February
    15, 2007.

[^5]: Auction of FM Broadcast Construction Permits, 456 Bidders
    Qualified to Participate in Auction No. 37, *Public Notice*, 19 FCC
    Rcd 19773 (2004).

[^6]: *Id.*

[^7]: FM Broadcast Construction Permits Auction Closes; Auction No. 37
    Winning Bidders Announced; Payment and Application Deadlines
    Established, *Public Notice*, 20 FCC Rcd 1021 (2004) ("*Auction No.
    37 Closing Public Notice*").

[^8]: *Id.*

[^9]: *See* Auction of FM Broadcast Construction Permits, 214 Bidders
    Qualified to Participate in Auction No. 62, *Public Notice,* 20 FCC
    Rcd 19937 (2005).

[^10]: *See* Auction of FM Broadcast Construction Permits Closes;
    Winning Bidders Announced for Auction No. 62, *Public Notice*, 21
    FCC Rcd 1071 (2006) ("*Auction No. 62 Closing Public Notice"*).

[^11]: *Id.*

[^12]: Auction of FM Broadcast Construction Permits Scheduled for
    November 3, 2004, Notice and Filing Requirements, Minimum Opening
    Bids, Upfront Payments and Other Auction Procedures, *Public
    Notice*, 19 FCC Rcd 10570, 10602-03 (2004) ("*Auction No. 37
    Procedures Public Notice*"); *Auction No. 62 Procedures Public*
    *Notice*, 20 FCC Rcd at 10531-34. There was no limit on the number
    of bids a bidder could withdraw in any one round. Withdrawals during
    the auction were subject to the bid withdrawal payments specified in
    47 C.F.R. § 1.2104(g). 19 FCC Rcd at 10602-03; 20 FCC Rcd at
    10531-34.

[^13]: *Auction No. 37 Procedures Public Notice*, 19 FCC Rcd at
    10602-03; *Auction No. 62 Procedures Public Notice*, 20 FCC Rcd at
    10534.

[^14]: The number of bidding units for a given license is fixed and does
    not change during the auction as prices rise. In Auction Nos. 37 and
    62, the upfront payment for a specific construction permit was equal
    to the minimum opening bid for that permit.

[^15]: *Auction No. 37 Procedures Public Notice*, 19 FCC Rcd at
    10595-97; *Auction No. 62 Procedures Public Notice*, 20 FCC Rcd at
    10522.

[^16]: The minimum required activity is expressed as a percentage of the
    bidder's current eligibility. In Auction No. 37, a bidder desiring
    to maintain its current bidding eligibility was required to be
    active on construction permits representing 100 percent of its
    current bidding eligibility. *Auction No. 37 Procedures Public
    Notice*, 19 FCC Rcd at 10595-97. In Auction No. 62, a bidder
    desiring to maintain its current bidding eligibility was required to
    be active on at least 75 percent of its current bidding eligibility
    during the first stage of the auction and at least 95 percent of its
    current bidding eligibility during the second stage of the auction.
    *Auction No. 62 Procedures Public Notice*, 20 FCC Rcd at 10522-24.

[^17]: Bidders in Auction No. 37 were provided five activity rule
    waivers. *Auction No. 37 Procedures Public Notice*, 19 FCC Rcd at
    10595-97. Bidders in Auction No. 62 were provided three activity
    rule waivers. *Auction No. 62 Procedures Public Notice*, 20 FCC Rcd
    at 10524-25. In both auctions, the automated auction bidding system
    automatically applied a waiver at the end of any round where a
    bidder\'s activity level was below the minimum required unless: (1)
    the bidder had no more activity rule waivers available; or (2) the
    bidder made automatic application of a waiver unnecessary by
    reducing its eligibility, thereby meeting the minimum requirements.
    If a bidder had no waivers remaining and did not satisfy the
    required activity level, its current eligibility was permanently
    reduced.

[^18]: 47 C.F.R. §§ 1.2109(b), (c).

[^19]: Cumulus's highest gross bid for the New Albany permit
    (MM-FM161-A) was \$304,000. Complete information concerning Auction
    Nos. 37 and 62, including individual round results and auction
    outcomes, may be found on the Commission\'s web site at:
    [http://auctions.fcc.gov](http://auctions.fcc.gov/)

[^20]: Cumulus's highest gross bid for the New Augusta permit
    (MM-FM162-A) was \$606,000.

[^21]: Glory's \$276,000 gross bid for the New Albany permit in round 19
    was the provisionally winning bid.

[^22]: The second highest bid on the New Augusta permit, placed by
    Educational Media Foundation in round 20, was \$551,000. Glory's
    \$501,000 gross bid in round 19 for the New Augusta permit was one
    of three identical bids, but Glory was not the provisionally winning
    bidder in that round. In the event of identical high bids on a
    construction permit in a given round, the procedures for Auction No.
    37 called for the use of a random number generator to select one
    high bid as the provisionally winning bidder on that permit for that
    round. Glory also submitted one of three tied gross bids of
    \$414,000 for the New Augusta permit in round 17, but it was not the
    provisionally winning bidder in that round.

[^23]: The New Albany and New Augusta permits were subsequently won by
    Ace Radio Corporation in Auction No. 62. *See Auction No. 62 Closing
    Public Notice*, 21 FCC Rcd at 1080.

[^24]: Glory's gross bid for the New Albany permit in round 17 was
    \$228,000.

[^25]: Glory Request at 1. In its waiver request, Glory identified the
    New Albany market as MM-FM159-A, which was actually the market
    designation for the Friars Point, Mississippi construction permit.
    Because Glory did not place any bids on the Friars Point permit, and
    was the second highest bidder on the permit for the New Albany
    market, MM-FM161-A, in this order we consider the bidding for the
    permit for market MM-FM161-A, rather than the permit for market
    MM-FM159-A.

[^26]: *Id*. Glory's gross bid in round 15 for the New Augusta permit
    was \$342,000.

[^27]: 47 C.F.R. § 1.2109(b).

[^28]: Radioactive's provisionally winning gross bid for the Meyersdale
    permit (MM-FM445-A) in round 50 was \$606,000.

[^29]: 2510 Licenses' provisionally winning gross bid in round 49 was
    \$551,000.

[^30]: 2510 Licenses Petition at 2 n.1.

[^31]: The Meyersdale permit was subsequently won by Educational Media
    Foundation in FM Broadcast Auction No. 68. *See* Auction of FM
    Broadcast Construction Permits Closes, Winning Bidders Announced for
    Auction No. 68, *Public Notice*, DA 07-93 (rel. Jan. 25, 2007)
    ("*Auction No. 68 Closing Public Notice*").

[^32]: 2510 Licenses Petition at 4 n.3. 2510 Licenses' gross bid for the
    Meyersdale permit in round 23 was \$145,000. 2510 Licenses argues
    that it should only have to pay the amount it bid in round 23
    because we should not consider any of the bids placed by Radioactive
    or any bids 2510 Licenses placed after the only other bidder for the
    permit stopped bidding on it.

[^33]: *See Auction No. 62 Comment Public Notice*, 20 FCC Rcd 7999.

[^34]: Spearman Properties' winning gross bid for the Mason permit
    (MM-FM296-A) was \$230,000. *Auction No. 37 Closing Public Notice*,
    DA 04-3694, Attachment A.

[^35]: Itz's provisionally winning gross bid in round 22 was \$209,000.

[^36]: *Auction No. 37 Closing Public Notice*, DA 04-3694, Attachment A.

[^37]: *See* Letter to Monte L. Spearman, Spearman Properties, LLC from
    Rita Cookmeyer, Financial Policy Analyst, Auctions and Spectrum
    Access Division, 20 FCC Rcd 8139 (Auc. Div. 2005) ("*Spearman
    Letter*") (assessing initial payment for default on winning bids in
    Auction No. 37, including the Mason, Texas construction permit).

[^38]: The Mason permit was subsequently won by Munbilla Broadcasting
    Properties, Ltd. in FM Broadcast Auction No. 62. *See Auction No. 62
    Closing Public Notice*, Attachment A, 21 FCC Rcd 1071, 1081 (2006).

[^39]: 2510 Licenses Petition at 1. 2510 Licenses acknowledges that the
    Commission's rules do not directly address the situation, where a
    provisionally winning bidder withdraws its bid prior to the close of
    the auction, but it contends that "in light of the circumstances,
    \[Section 1.2109(b)\] is applicable and should be waived.\" *Id.* at
    3 and n.2. Although Glory did not expressly state that it sought a
    waiver of Section 1.2109(b), we treat its request as a request for
    waiver of Section 1.2109(b), because Glory asks us to take an action
    described in the rule in circumstances that vary from those in which
    the rule states that the Commission may take such action.

[^40]: 47 C.F.R. § 1.2109(b).

[^41]: 47 C.F.R. § 1.3 provides in pertinent part: \"The provisions of
    this chapter may be . . . waived for good cause shown . . . subject
    to the provisions of the Administrative Procedure Act and the
    provisions of this chapter. Any provision of the rules may be waived
    by the Commission . . . on petition if good cause therefore is
    shown.\"

[^42]: *See Northeast Cellular Tel. Co. v. FCC*, 897 F.2d 1164, 1166
    (D.C. Cir. 1990) (citing *WAIT Radio v. FCC*, 418 F.2d 1153, 1157-59
    (D.C. Cir. 1969), *cert. denied*, 93 S.Ct. 461 (1972)); *Thomas
    Radio v. FCC*, 716 F.2d 921 (D.C. Cir. 1983).

[^43]: 2510 Licenses also asserts that the Commission should amend its
    rules prior to the next auction to require it to offer a
    construction permit to the second highest bidder when a high bidder
    withdraws its bid prior to the close of an auction. 2510 Waiver
    Petition at 3 n.2. We do not address this suggestion here because it
    is outside the scope of the instant matter.

[^44]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding, PP Docket No. 93-253, *Second Report and
    Order*, 9 FCC Rcd 2348, 2382-84 ¶¶ 195-205 (1994) ("*Competitive
    Bidding Second Report and Order*").

[^45]: *See* Letter to John E. Mason, Member, Harbor Wireless, LLC from
    Kathleen O\'Brien Ham, Deputy Bureau Chief, 16 FCC Rcd 3615 (WTB
    2001) ("*Harbor Wireless"*); Letter to Gregory M. Schmidt, Vice
    President, Banks Broadcasting, Inc. from Margaret W. Wiener,
    Division Chief, 18 FCC Rcd 10431 (Auc. Div. 2003) ("*Banks
    Broadcasting*").

[^46]: *See Northeast Cellular Tel.*, 897 F.2d at 1166; *Thomas Radio*,
    716 F.2d at 921; *WAIT Radio*, 418 F.2d at 1157-59.

[^47]: *Competitive Bidding Second Report and Order*, 9 FCC Rcd at 2383
    ¶ 204.

[^48]: *Id*.

[^49]: Amendment of Part 1 of the Commission\'s Rules -- Competitive
    Bidding Proceeding, WT Docket No. 97-82, *Third Report and Order and
    Second Further Notice of Proposed Rule Making*, 13 FCC Rcd 374,
    461-62 ¶ 152 (1997).

[^50]: *Id.*, 13 FCC Rcd at 462 ¶ 153.

[^51]: *Id.*

[^52]: *Id.*

[^53]: *See e.g*., *Harbor Wireless*, 16 FCC Rcd at 3618; *Banks
    Broadcasting,* 18 FCC Rcd at 10431.

[^54]: 2510 Licenses Petition at 5-6.

[^55]: *Id.* 2510 Licenses also argues specifically that the *Banks*
    decision is inapposite and distinguishes it from its own
    circumstances on the same basis 2510 used to distinguish the *Harbor
    Wireless* decision. *Id.*

[^56]: *Harbor Wireless*, 16 FCC Rcd at 3615.

[^57]: *See Harbor Wireless*, 16 FCC Rcd at 3618.

[^58]: *Id*.

[^59]: In that subsequent auction, all three of the licenses on which
    Harbor had been the next highest bidder were sold to other bidders
    for values in excess of Harbor's bids in Auction No. 33. *See* 700
    MHz Guard Bands Auction Closes, Winning Bidders Announced, *Public
    Notice*, Attachment A, 16 FCC Rcd 4590, 4597 (2001).

[^60]: The 171 FM construction permits available for bidding in Auction
    No. 62 included 30 unsold from Auction No. 37. *See* *Auction No. 62
    Comment Public Notice*, 20 FCC Rcd at 7999 (2005); see *also Auction
    No. 62 Closing Public Notice*, 21 FCC Rcd at 1071 (2006). All 9 of
    the FM construction permits available for bidding in Auction No. 68
    were permits remaining unsold after either Auction No. 37 or Auction
    No. 62. *See* Auction of FM Broadcast Construction Permits Scheduled
    for January 10, 2007, Notice and Filing Requirements, Minimum
    Opening Bids, Upfront Payments and Other Procedures for Auction No.
    68, *Public Notice*, 21 FCC Rcd 11144, 11146 ¶ 2 (2006).

[^61]: *See* Revised Inventory and Auction Start Date for FM Broadcast
    Construction Permits, Comment Sought on Reserve Prices or Minimum
    Opening Bids and Other Auction Procedures, *Public Notice*, 19 FCC
    Rcd 6907 (2004) ("*Auction No. 37 Comment Public Notice*"); *Auction
    No. 62 Comment Public Notice*, 20 FCC Rcd at 8001-03. *See also*
    Auction of Additional FM Broadcast Construction Permits to be
    Included in Auction No. 37 Scheduled for February 21, 2001, Comment
    Sought on Reserve Prices or Minimum Opening Bids and Other Auction
    Procedural Issues, *Public Notice*, 15 FCC Rcd 25486 (2000); FM
    Broadcast Auction Scheduled for February 21, 2001, Comment Sought on
    Reserve Prices or Minimum Opening Bids and Other Auction Procedural
    Issues, *Public Notice*, 15 FCC Rcd 18081 (2000).

[^62]: *See* Auction of Licenses in the Lower 700 MHz Band Scheduled for
    May 28, 2003, Notice and Filing Requirements, Minimum Opening Bids,
    Upfront Payments and Other Auction Procedures, *Public Notice,* 18
    FCC Rcd 3138, 3168 (2003).

[^63]: *Id.*

[^64]: *Id.*

[^65]: *Id.*

[^66]: *Id.*; *Banks Broadcasting*, 18 FCC Rcd at 10435-36*.*

[^67]: *See Harbor Wireless*, 16 FCC Rcd at 3619; *Banks Broadcasting*,
    18 FCC Rcd at 10435.

[^68]: We note that neither Glory nor 2510 Licenses requested a waiver
    of the bidding activity or eligibility requirements in Auction Nos.
    37 or 62.

[^69]: 2510 Licenses Petition at 3-5.

[^70]: *Id*. at 4.

[^71]: *See Banks Broadcasting*, 18 FCC Rcd at 10431.

[^72]: *See Harbor Wireless*, 16 FCC Rcd at 3619; *Banks Broadcasting*,
    18 FCC Rcd at 10435-36.

[^73]: *See Banks Broadcasting*, 18 FCC Rcd at 10436; Two Way Radio of
    Carolina, Inc., *Memorandum Opinion and Order*, 14 FCC Rcd 12035,
    12041 ¶ 11 (1999).

[^74]: 2510 Licenses argues that denial of its waiver request would
    "frustrate the public interest by preventing the earliest provision
    of a new local radio service to Meyersdale, Pennsylvania,\" and
    claims that a re-auction of the permit would delay new service for
    at least two years. 2510 Licenses Petition at 5.

[^75]: *Id*. at 4-5.

[^76]: *See supra* note 61.

[^77]: *See supra* note 22.

[^78]: The second highest bidder for the FM construction permit at New
    Augusta, Mississippi did not submit a waiver request.

[^79]: The winning bidder for the permit failed to remit the required
    down payment by the established deadline. *See* *Spearman Letter*,
    20 FCC Rcd at 8139.

[^80]: *Competitive Bidding Second Report and Order*, 9 FCC Rcd at 2383
    ¶ 204.

[^81]: See *supra* paragraph 14.

[^82]: Itz Request at 3.

[^83]: *Id.* at 2-3.

[^84]: *See* Application of Winstar Broadcasting Corp., *Order on
    Reconsideration*, 20 FCC Rcd 2043, 2053-54 ¶ 20 (2005).

[^85]: *See* *Auction No. 37* *Procedures Public Notice*, 19 FCC Rcd at
    10595--97; *Auction No. 62 Procedures Public Notice*, 20 FCC Rcd at
    10522-24.