DA 03-1582

May 12, 2003

**[Via Certified Mail, Return Receipt Requested]{.underline}**

John C. Aegerter

PO Box 665

Elm Grove, WI 53122-0665

Dear Mr. Aegerter:

This letter responds to your March 21, 2003 electronic mail requesting a
waiver of the filing deadline for submission of your short-form
application (FCC Form 175) to participate in Auction No. 48.[^1] You
claim that you missed the filing deadline of March 21, 2003, 6:00 PM
(ET)[^2] because you encountered a server error message at approximately
5:55 PM (ET) while you were trying to submit your Form 175. For the
reasons set forth below, we deny your waiver request.

To obtain a waiver of the Commission's competitive bidding rules,[^3] an
applicant must show: (i) that the underlying purpose of the rule would
not be served, or would be frustrated, by its application in this
particular case, and that the grant of the requested waiver would be in
the public interest; or (ii) that the unique facts and circumstances of
the particular case render application of the rule inequitable, unduly
burdensome, or otherwise contrary to the public interest, or that the
applicant has no reasonable alternative.[^4]

The Commission established the March 21, 2003, 6:00 PM (ET) deadline for
filing short-form applications for Auction No. 48 in a Public Notice
released on December 20, 2002.[^5] The Commission also announced in the
*Auction No. 48 Procedures Public Notice* that applications could be
filed at any time beginning at noon on March 6, 2003 until 6:00 PM on
March 21, 2003.[^6] The Commission also warned that late applications
will not be accepted.[^7] To facilitate filing, the Commission enabled
applicants to submit applications via the Internet 24 hours per day.
[^8]

You contend that your failure to timely submit your short-form
application was due to a server error message you encountered at
approximately 5:55 PM (ET) on the day of the filing deadline. You
further contend that you contacted the FCC's Technical Support Hotline
and attempted to submit the short-form application again, but the 6:00
PM deadline had passed before you completed your submission. Finally,
you suggest that the Commission should not require short-form applicants
to submit attachments to their Form 175.

Based on the record before us, you have not satisfied the Commission's
criteria for granting a waiver of the short-form application deadline.
The Commission set the deadline pursuant to Section 1.2105(a)(1).[^9]
The rule's underlying purpose is to establish a fixed date by which all
applicants interested in participating in the auction must provide the
Commission with relevant information.[^10] 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. You have not shown that enforcing the deadline in this case
would frustrate these purposes, or would not serve them.

In addition, you have not demonstrated unique facts or circumstances
that merit granting a waiver in this case. You have failed to provide
any particular facts or other evidence that would demonstrate that you
were prevented from timely submitting a short-form application by the
March 21, 2003 deadline. You have not alleged any circumstances that are
different from those that applied to all applicants to participate in
Auction No. 48. The Commission's rules and public notices provided
comprehensive notice of filing procedures for Auction No. 48, including
detailed instructions on the information required to be included in the
attachments to the Form 175.[^11] Moreover, the Commission specifically
cautioned applicants to file early and allow adequate time for filing
their applications.[^12] The Commission's records indicate that you
logged in and initiated the application process only 36 minutes before
the short-form filing deadline. Finally, your belief that the Commission
should develop a short-form application process that does not require
the uploading of attachments is not a sufficient basis on which to grant
a waiver.

Accordingly, your request for a waiver of the short-form application
filing deadline for Auction No. 48 is denied. This action is taken under
authority delegated pursuant to Section 0.331 of the Commission's
rules.[^13]

Sincerely,

Margaret Wiener

Chief, Auctions and Industry Analysis Division

Wireless Telecommunications Bureau

[^1]: Electronic mail from John C. Aegerter to Margaret Wiener, Chief,
    Auctions and Industry Analysis Division, dated March 21, 2003 at
    6:50 p.m. ("Waiver Request")

[^2]: *See* Auction of Licenses for Lower and Upper Paging Bands Auction
    Scheduled for May 13, 2003, Notice and Filing Requirements, Minimum
    Opening Bids, Upfront Payments and Other Auction Procedures, *Public
    Notice*, 17 FCC Rcd 27,799 (2002), 68 Fed. Reg. 6151 ("*Auction No.
    48 Procedures Public Notice*").

[^3]: ^?^ 47 C.F.R. § 1.2105(a).

[^4]: 47 C.F.R. § 1.925.

[^5]: *Auction No. 48 Procedures Public Notice*, 17 FCC Rcd at 27,813,
    27,821 .

[^6]: *Id*., at 27,821.

[^7]: *Id.*

[^8]: Access to the Commission's Auction systems was unavailable from 5
    PM on Saturday, March 8, 2001 until 9 AM on Sunday, March 9, 2003 to
    facilitate necessary maintenance.

[^9]: ^?^ 47 C.F.R. § 1.2105(a)(1).

[^10]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding*, Second Report and Order*, 9 FCC Rcd 2348,
    ¶¶ 161-68 (1994).

[^11]: *See* *Auction No. 48 Procedures Public Notice*, 17 FCC Rcd at
    27,846-855.

[^12]: *Id.*, at 27,821.

[^13]: 47 C.F.R. § 0.331.