> DA 00-737

April 3, 2000

Mr. Jason Bunch

NTCH, Inc.

100 No. Sepulveda Blvd.

Suite 1100

El Segundo, CA 90245

Dear Mr. Bunch:

This letter responds to your March 29, 2000 correspondence, filed on
behalf of Mr. Glenn W. Ishihara ("Applicant"), requesting a waiver of
the upfront payment deadline for Auction No. 30.[^1] You claim, on
behalf of Applicant, that Salomon Smith Barney's internal deadline
caused the wire transfer to be late.

In order to obtain a waiver of the Commission's upfront payment
deadline, 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 grant of the waiver 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.[^2] For
the reasons cited below, we find that the circumstances of your waiver
request fail to meet the Commission's standard for granting a waiver.

On January 21, 2000, the Commission first notified applicants for
Auction No. 30 that the deadline for submission of upfront payments was
6:00 p.m. (EST) on March 27, 2000.[^3] The Commission also warned
applicants that "\[f\]ailure to deliver upfront payment by the March 27,
2000 deadline will result in dismissal of the application and
disqualification from participation in the auction."[^4]

You claim that several unforeseen events precluded Applicant from
completing the wire transfer to Mellon Bank before the upfront payment
deadline. Among these unforeseen events, you claim that Applicant was
not aware that its bank, Salomon Smith Barney, required the location
address and telephone number for Mellon Bank. You contend that Applicant
had extreme difficulty in acquiring this information and, when Applicant
ultimately did acquire the requisite information for Mellon Bank, was
not able to successfully process the wire transfer so that it was
received by Mellon Bank before the upfront payment deadline. In
addition, you contend Applicant was not aware that, in order for the
transfer to be completed the same day, Salmon Smith Barney required this
information to be internally filed and processed before its 11:00 a.m.
deadline. You further claim that Applicant did not realize until the
morning after the payment deadline (*i.e.*, March 29, 2000) that the
wire transfer was not completed before the Commission's upfront payment
deadline.

On the basis of the record before us, we are not persuaded that
Applicant has demonstrated unique circumstances sufficient to justify
the grant of a waiver in this case, nor do we find that Applicant has
demonstrated that application of the deadline in its case would undercut
or frustrate the underlying purpose of the deadline. We believe that
Applicant had sufficient time to submit his upfront payment prior to the
payment deadline. By your own admission, Applicant initiated processing
of the wire payment the day of the payment deadline, leaving little time
for Applicant to become familiar with the requirements of the process.
The Commission has repeatedly cautioned auction participants regarding
the importance of planning ahead to account for unforeseen last-minute
difficulties. In particular, applicants were warned to avoid untimely
payments by "discuss\[ing\] arrangements (including bank closing
schedules) with their banker several days before they plan to make a
wire transfer, and allow sufficient time for the transfer to be
initiated and completed before the deadline."[^5] In addition,
applicants were cautioned to "confirm receipt of their upfront payments
at Mellon Bank by contacting their sending financial institution."[^6]
Applicant failed to perform these fundamental and critical tasks.
Accordingly, we are not convinced that grant of a waiver is warranted or
would be in the public interest.

This action is taken under the delegated authority pursuant to Section
0.331 of the Commission's Rules.[^7]

Sincerely,

Mark Bollinger

Acting Chief, Auctions and Industry Analysis

Wireless Telecommunications Bureau

[^1]: *See* Letter from Jason Bunch, NTCH, Incorporated, to Kathy
    Garland, Wireless Telecommunications Bureau, Federal Communications
    Commission, filed March 29, 2000.

[^2]: 47 C.F.R. § 1.925.

[^3]: *See* "Auction of Licenses for Fixed Point-to-Point Microwave
    Service in the 38.6 to 40.0 GHz (39 GHz) Band; Auction Notice and
    Filing Requirements for 2,450 Licenses in the 39 GHz Band Scheduled
    for April 12, 2000: Minimum Opening Bids and Other Procedural
    Issues," *Public Notice*, DA 00-112 (rel. January 21, 2000)
    ("*Auction No. 30 Public Notice"*)*.*

[^4]: *See Auction No. 30 Public Notice* at Section III.D.

[^5]: *Auction No. 30 Public Notice* at Section III.D.1.

[^6]: *Id*.

[^7]: 47 C.F.R. § 0.331.