> DA 00-274

February 14, 2000

Ms. Melodie A. Virtue

Haley, Bader & Potts, P.L.C.

4350 North Fairfax Drive

Suite 900

Arlington, VA 22203

Dear Ms. Virtue:

This letter responds to the "Request for Waiver and Leave to Amend FCC
Form 175 -- Upper Band Paging Auction 26" that you filed on February 8,
2000 on behalf of your client Pass Word, Inc. ("Pass Word").[^1] Pass
Word is seeking permission to amend its short-form application (FCC Form
175) for participation in Auction No. 26 to add 931 MHz license
frequency blocks AA and AC through BK within the four market service
areas specified in its application (MEA041, Spokane-Billings; MEA042,
Salt Lake City; MEA045, Portland; and MEA046, Seattle). Specifically,
Pass Word requests a waiver of Section 1.2105 (b)(2) of the Commission's
Rules to permit a change to the license service areas identified on its
short-form application.[^2] According to Pass Word, it intended to
select all the 931 MHz license blocks for the four market service areas
in which it actually selected only one license block. Absent a waiver,
Pass Word would be ineligible to bid on all 931 MHz license blocks
because all of those licenses were not properly selected on its FCC Form
175. For the reasons discussed below, we grant Pass Word's *Request*.

To obtain a waiver of the Commission's competitive bidding rules,[^3]
Pass Word 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 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]

In support of its *Request*, Pass Word argues that the Bidder
Information Package for Upper Band Paging did not identify which precise
frequencies related to license blocks within 931 MHz. Therefore, Pass
Word claims that it thought that designating licenses AB would include
all licenses with the prefixes A and B. Pass Word states that its
failure to specify the AU block, a block on which the applicant
currently operates paging systems, should demonstrate that its error
stemmed from its lack of understanding that selecting certain frequency
blocks did not include the range of frequency blocks it believed had
been selected. Pass Word states that it realized that it was only
eligible to bid for the AB block after reviewing the release of *Public
Notice*, DA-00173, on February 1, 2000.[^5] Accordingly, Pass Word
argues that it should be permitted to correct an inadvertent error
because a prohibition against correcting its application would be unfair
since its application was already accepted for filing, and such action
would not be prejudicial to any other party. Pass Word further argues
that allowing it to amend its application will serve the public interest
as it will create greater competition.

While the Bidder Information Package for Upper Band Paging did not
identify which precise frequencies related to license blocks within 931
MHz, the Auction Public Notice released on August 12, 1999 did include
such information.[^6] Therefore, Pass Word was on notice of which
frequencies related to the license blocks within 931 MHz. Nevertheless,
we note that the labeling of the 2,499 Paging licenses was complex and
may have contributed to Pass Word's misunderstanding. We find that Pass
Word's explanation of its mistake was credible and that granting this
waiver will not undermine the purpose of the rule.

Section 1.2105(b)(2) states that a major amendment cannot be made after
the initial filing deadline, and this includes changes in license
service areas identified on an applicant's short-form application. We
continue to interpret this rule to prohibit applicants from adding
markets to their short form applications, unless a waiver of the rules
is warranted. The facts presented in Pass Word's *Request* show unique
circumstances supporting the grant of this waiver pursuant to Section
1.925 of the Commission's Rules.[^7] Consequently, we will permit Pass
Word to amend its FCC Form 175 to add the licenses listed in its
request, and this amendment will allow Pass Word to bid on those
licenses.

This action is taken under the delegated authority pursuant to Section
0.331 of the Commission's Rules.[^8]

Sincerely,

Mark Bollinger

Acting Chief, Auctions and Industry Analysis

Wireless Telecommunications Bureau

[^1]: *See* Letter from Melodie A. Virtue, Haley, Bader & Potts, P.L.C.,
    to Amy Zoslov, Chief, Auctions and Industry Analysis Division,
    Wireless Telecommunications Bureau, Federal Communications
    Commission, February 8, 2000 ("*Request*").

[^2]: 47 C.F.R. § 1.2105(b)(2).

[^3]: 47 C.F.R. § 1.2105(b)(2).

[^4]: 47 C.F.R. § 1.925.

[^5]: *See* "Auction of 2,499 -- 929 and 931 MHz Paging licenses, Status
    of Applications to participate in the Auction," *Public Notice,*
    DA-00173 (rel. February 1, 2000) ("*Status PN*").

[^6]: *See* "Auction of 929 and 931 MHz Paging Service Spectrum: Auction
    Notice and Filing Requirements for 2,499 Paging Band Licenses
    Scheduled for February 24, 2000: Minimum Opening Bids and Other
    Procedural Issues," *Public Notice*, DA 99-1591, (rel. August 12,
    1999) ("*Auction No. 26 Public Notice").*

[^7]: 47 C.F.R. § 1.925.

[^8]: 47 C.F.R. § 0.331.