DA 05-1282

Adopted: April 25, 2005

Released: May 12, 2005

Mr. Ameer Flippin

2053 Wilson Road

Memphis, TN 38116

> Re: [Request for Extensions of Time To File a Short-Form Application
> and Submit Down Payment in Auction No. 59]{.underline}

Dear Mr. Flippin:

This letter responds to your April 20, 2005, e-mail requesting
reconsideration of, and extensions of time in which to comply with, the
short-form application and down payment deadlines for Auction No.
59.[^1] For reasons explained in this letter, we deny your requests.

Your e-mail was submitted over six weeks after the March 4, 2005
deadline for electronically submitting short-form applications through
the Commission's automated FCC Form 175 system and less than one week
before the April 26, 2005, auction start date. In support of your
requests, you cite the "Public Importance" of the licenses being
auctioned and your "case load" as a *pro se* bidder.[^2] You argue that
Commission precedent "allows an interested party to implement
Constitutional and legal rights where in the public interest,
specifically in the deployment of wireless technology."[^3] You state
that your motion is filed "pending a *Motion for Installment
Payments*."[^4] You also assert that "Multiple Address Systems spectrum
will be important in the build-out of a PCS network," and contend that
"spectrum assets auctioned in Broadband PCS Auction No. 58 are on appeal
in the U.S. Circuit Court of Appeals in the District of Columbia."[^5]

As we pointed out in denying your similar request with regard to Auction
No. 58,[^6] a request for waiver of our rules must contain a complete
explanation of why a waiver is desired.[^7] Grant of the request is
warranted if the explanation establishes that: (i) the underlying
purpose of the rule would not be served or would be frustrated by its
application in the instant case, and grant of the waiver would be in the
public interest; or (ii) in view of the unique or unusual factual
circumstances of the specific situation, application of the rule would
be inequitable, unduly burdensome or contrary to the public interest, or
the entity requesting the waiver has no reasonable alternative.[^8]

Your request fails to satisfy these requirements. The purpose underlying
our short-form deadline is to make sure that our auctions proceed in a
timely, organized, predictable, and, thus, fair fashion so that we can
best further the statutory goals of promoting, without administrative or
judicial delays, the rapid deployment of new technologies, products, and
services for the benefit of the public.[^9] You have provided no reason
why this purpose would be frustrated should your request be denied. Nor
have you attempted to show the existence of any unusual circumstances
that support your request.

The fact that 38 applicants were able to file Auction No. 59 short-form
applications on time demonstrates that our short-form filing deadline
was not unduly burdensome for applicants.[^10] Moreover, there was ample
public notice of the auction schedule. On November 15, 2004, the
Wireless Telecommunications Bureau ("Bureau") announced that Auction No.
59 would begin on April 26, 2005.[^11] On December 21, 2004, the Bureau
announced deadlines of March 4, 2005, for short-form applications, and
April 1, 2005, for upfront payments.[^12] You have offered no
circumstances to explain why you were unable to meet those auction
deadlines.

Finally, your assertion that Auction No. 59 is of public importance does
not explain why allowing you to enter the auction proceedings well after
the short-form deadline and just six days prior to the start of the
auction would benefit the public. We believe that any arguable public
benefit to be derived from our adding you as an additional participant
to Auction No. 59 would be far outweighed by the public benefit of
denying your request, thereby affording other auction applicants
reasonable certainty as to the fair and predictable application of our
auction rules and procedures, including enforcement of our
deadlines.[^13] Such certainty enables applicants to, among other
things, strategically plan for the auction. Accordingly, we deny your
request for waiver of the Auction No. 59 short-form filing and down
payment deadlines. Because you did not electronically submit a
short-form application pursuant to the established deadline and
procedures,[^14] you are not eligible to participate in Auction No.
59.[^15]

> This action is taken under authority delegated pursuant to Section
> 0.331 of the Commission's rules.[^16]
>
> Sincerely,
>
> Gary D. Michaels
>
> Deputy Chief, Auctions and Spectrum Access Division
>
> Wireless Telecommunications Bureau

[^1]: On April 20, 2005, an e-mail from Ameer Flippin was sent to
    Margaret Weiner, Chief, Auctions and Spectrum Access Division,
    through the Auction No. 59 e-mail account. E-mail from Ameer Flippin
    to Margaret Weiner, Chief, Auctions and Spectrum Access Division
    (submitted April 20, 2005) ("*E-mail Motion*"). Attached to that
    e-mail was a cover letter that purported to "give notice of \[Mr.
    Flippin's\] participation in Auction No. 59" and referenced an
    "attached Short Form 175 and 'Ex Parte Motion for an Extension of
    Time, Waiver, and Amendment...,' which consisted of four .jpg image
    files. *Id.* One of the four .jpg files was not legible. To be
    eligible to participate in Auction No. 59, you must have timely
    submitted an electronic short-form application together with an
    appropriate upfront payment as set forth in the *Auction No. 59
    Procedures Public Notice. See* 47 C.F.R. § 1.2105(a); "Multiple
    Address Systems Spectrum Auction Scheduled for April 26, 2005;
    Notice and Filing Requirements, Minimum Opening Bids, Upfront
    Payments and Other Procedures for Auction No. 59," *Public Notice*,
    19 FCC Rcd 24,445, 24,456-57 (2004) ("*Auction No. 59 Procedures
    Public Notice*"). Your *E-mail Motion* does not comply with the
    deadlines and requirements set forth in the *Auction No. 59
    Procedures Public Notice* and the Commission's rules.

[^2]: Section 1.2107 of the Commission's Rules governs the due date for
    down payments. 47 C.F.R. § 1.2107. A down payment is the additional
    amount owed by a winning bidder after the close of an auction as may
    be necessary to bring the bidder's total deposits up to 20 percent
    of the high bid. Because we find that you have not established
    eligibility to bid in Auction No. 59, your request for extension of
    the down payment deadline is moot.

[^3]: *E-mail Motion*, .jpg attachment "Extension page 2 of 2."

[^4]: *Id.* Further, the *E-mail Motion* maintains that "\[t\]hese
    documents were filed in an effort to comply with the Federal Rules
    of Civil Procedure, the Federal Rules of Appellate Procedure and the
    Rules of the Supreme Court." *Id.*

[^5]: *Id.*

[^6]: Letter from Gary D. Michaels, Deputy Chief, Auctions and Spectrum
    Access Division, Wireless Telecommunications Bureau, to Ameer
    Flippin, DA 05-173 (Jan. 25, 2005) (denying Mr. Flippin's request
    for extensions of time to file a short-form application and to make
    an upfront payment for Auction No. 58, as well as for a 180-day
    postponement of that auction).

[^7]: *See* 47 C.F.R. § 1.925(b)(2).

[^8]: 47 C.F.R. § 1.925(b)(3). Additionally, the Commission may grant a
    waiver upon a showing of good cause. 47 C.F.R. § 1.3.

[^9]: 47 U.S.C. § 309(j)(3)(A); Motions for Stay of Auction No. 57 and
    Requests for Dismissal or Disqualification, *Order*, 19 FCC Rcd
    20,482, 20,489 ¶ 20 (ASAD-WTB 2004).

[^10]: *See* "Auction of Multiple Address Systems Spectrum; Status of
    FCC Form 175 Applications to Participate in Auction No. 59," *Public
    Notice*, DA 05-693, at 1, Attachments A and B (March 21, 2005);
    <http://wireless.fcc.gov/auctions>.

[^11]: "Multiple Address Systems Spectrum Auction Scheduled for April
    26, 2005; Comment Sought on Reserve Prices or Minimum Opening Bids
    and Other Auction Procedures," *Public Notice*, 19 FCC Rcd 22449
    (2004).

[^12]: *Auction No. 59 Procedures Public Notice*, 19 FCC Rcd 24,445.

[^13]: *See*, *e.g.*, Letter from Gary D. Michaels, Deputy Chief,
    Auctions and Spectrum Access Division, Wireless Telecommunications
    Bureau, to F. Scott Fistel, Esq., Law Office of Fistel & Associates,
    P.A., 19 FCC Rcd 20,517, 20,518-19 (ASAD-WTB 2004) ("The . . .
    underlying purpose \[of the short-form application deadline\] is to
    establish a fixed date by which all applicants interested in
    participating in the auction must submit relevant information
    necessary to establish applicants' qualifications to participate in
    an auction. Among other things, using a fixed date also provides the
    Commission with sufficient time to review applications prior to the
    auction and identifies the pool of potential bidders. . . . The
    Commission's rules are best served by applying auction deadlines in
    a fair and consistent manner.") (citation omitted); Implementation
    of Section 309(j) of the Communications Act -- Competitive Bidding*,
    Second Report and Order*, 9 FCC Rcd 2348, 2375-81 ¶¶ 161-88 (1994)
    (purpose of short-form application deadlines).

[^14]: *See Auction No. 59 Procedures Public Notice*, 19 FCC Rcd 24,445.

[^15]: Further, we find that the expense of time and resources to
    address what appear to be frivolous arguments is a detriment to the
    public interest. A filing may be deemed frivolous under 47 C.F.R. §
    1.52 if there is no "good ground to support it." *See* "Commission
    Taking Tough Measures against Frivolous Pleadings," *Public Notice*,
    11 FCC Rcd 3030 (1996).

[^16]: 47 C.F.R. § 0.331.