**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the matter of                 | *  |                              |
|                                  | *) |                              |
| Auction No. 44 Revised Schedule, | ** |                              |
| License Inventory, and           |    |                              |
| Procedures, *Public Notice*, DA  | *  |                              |
| 02-1491                          | *) |                              |
|                                  | ** |                              |
| Petition for Reconsideration by  |    |                              |
| Spectrum Holdings I, LP          | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: July 25, 2002 Released: July 25, 2002**

By the Deputy Chief, Wireless Telecommunications Bureau:

# Introduction

1.  Spectrum Holdings I, LP ("Spectrum Holdings") seeks
    reconsideration[^1] of actions taken by the Wireless
    Telecommunications Bureau ("Bureau") to implement requirements of
    the Auction Reform Act of 2002.[^2] Among other things, the Auction
    Reform Act required the Commission to remove from the Auction No. 44
    inventory three of five blocks of Lower 700 MHz spectrum for which
    licenses had been available.[^3] In light of this and other
    significant changes required by the Auction Reform Act, the Bureau
    released a public notice revising the auction schedule, license
    inventory, and procedures for Auction No. 44.[^4] By the public
    notice, the Bureau provided bidders with flexibility essential to
    maintaining a competitive auction environment, consistent with the
    requirements of the Auction Reform Act. Spectrum Holdings now
    challenges the Bureau's grant of this flexibility, in particular,
    the Bureau's decision to allow qualified bidders to select
    additional licenses and supplement upfront payments.[^5] In
    addition, Spectrum Holdings opposes the Bureau's requirement that
    requests for returns of upfront payments mandated by the Auction
    Reform Act be made by 6 p.m. ET July 3, 2002.[^6] For the reasons
    set forth below, we deny Spectrum Holdings' Petition.[^7]

# BACKGROUND

2.  On March 20, 2002, in the *Auction No. 44 Procedures Public Notice*,
    the Bureau established a 6 p.m. ET May 8, 2002, deadline to file
    short-form applications to participate in Auction No. 44.[^8] Also
    in the *Auction No. 44 Procedures Public Notice*, the Bureau
    established a 6 p.m. ET May 28, 2002 deadline to submit upfront
    payments and a June 19, 2002 auction start date.[^9] Numerous
    parties subsequently requested that the full Commission review the
    schedule and delay Auction No. 44.[^10] On May 24, 2002, the
    Commission issued the *Auction No. 44 AFR Order* and the *Auction
    No. 44 Commission Public Notice* which, respectively, denied the
    requests for delay of Auction No. 44 and reaffirmed the Bureau's
    previously announced schedule.[^11] On that same day, the Bureau
    released the *Auction No. 44 Status Public Notice,* which extended
    the original 6 p.m. ET May 28, 2002 upfront payment deadline until 6
    p.m. ET May 30, 2002.[^12]

3.  On June 19, 2002, one day after the Senate and the House of
    Representatives adopted it by unanimous consent, the President
    signed the Auction Reform Act of 2002.[^13] Among other things, the
    Auction Reform Act required that the Commission take certain actions
    with respect to scheduling the auction of Lower 700 MHz band
    licenses. More specifically, the Auction Reform Act prohibited the
    Commission from commencing Auction No. 44 on June 19, 2002, as
    provided in the *Auction No. 44 Procedures Public Notice*.[^14] It
    expressly directed the Commission to commence an auction of the
    Lower 700 MHz band C and D block licenses no earlier than August 19,
    2002, and no later than September 19, 2002, and defined the entities
    eligible to bid in that auction.[^15] Finally, the Auction Reform
    Act required the Commission, within one month of the its enactment,
    to return to bidders for licenses in the A, B and E blocks in
    Auction No. 44 the full amount of all upfront payments made by such
    bidders for such licenses.[^16]

4.  Following enactment of the Auction Reform Act, the Bureau issued the
    *Auction No. 44 Revised Schedule Public Notice*. In the *Auction No.
    44 Revised Schedule Public Notice*, the Bureau announced that,
    pursuant to the Auction Reform Act: Auction No. 44 will start on
    August 27, 2002; only those parties that had been identified as
    qualified bidders will be eligible to participate in the rescheduled
    Auction No. 44; the rescheduled Auction No. 44 will offer only
    licenses for the C and D block of the Lower 700 MHz bands; and that
    qualified bidders that had been eligible to bid on the A, B, and E
    block licenses could request partial or full refunds of their
    upfront payments by providing necessary information no later than 6
    p.m. ET July 3, 2002.[^17] In addition, because qualified bidders
    could not have anticipated the changes in Auction No. 44 mandated by
    adoption of the Auction Reform Act, the Bureau permitted qualified
    bidders to elect, no later than 6 p.m. ET July 3, 2002, to terminate
    participation in, *i.e.*, depart from, Auction No. 44, and receive a
    full refund of their upfront payments.[^18] Finally, the Bureau
    permitted all qualified bidders not departing from Auction No. 44 to
    select additional licenses and supplement their upfront payments
    pursuant to specified procedures beginning July 22, but no later
    than 6 p.m. ET July 26, 2002.[^19]

# DISCUSSION

5.  In its Petition, Spectrum Holdings argues that the Bureau's decision
    to permit qualified bidders not departing from Auction No. 44 to
    select additional licenses and to supplement upfront payments
    violates Section 309(j) of the Communications Act of 1934, as
    amended ("Communications Act").[^20] Spectrum Holdings also claims
    that the Bureau's actions violated fundamental administrative law
    principles and are not consistent with Commission rules governing
    waivers.[^21] Finally, Spectrum Holdings contends that it should be
    permitted until 6 p.m. ET July 16, 2002, rather than only until the
    Bureau's 6 p.m. ET July 3, 2002 deadline, to request the return of
    upfront payments in connection with A, B, and E block licenses.[^22]

6.  Contrary to Spectrum Holdings' contention, Section 309(j)(3)(E) does
    not prohibit the Bureau's modification of the deadlines for
    selecting licenses and making upfront payments. In relevant part,
    Section 309(j)(3)(E) of the Communications Act requires the
    Commission to allow an adequate period, before issuance of bidding
    rules, to permit notice and comment on proposed auction
    procedures.[^23] Spectrum Holdings complains that the Bureau did not
    allow any opportunity for notice and comment on the procedures for
    selecting additional licenses and supplementing upfront payments.
    The Bureau previously sought comment on the process of having
    qualified bidders establish their initial maximum eligibility by
    selecting licenses and making upfront payments. This procedure was
    not changed in the *Auction No. 44 Revised Schedule Public
    Notice.*[^24] Rather, the Bureau merely modified the deadlines by
    allowing qualified bidders to select additional licenses and make
    supplemental upfront payments within a specific time period. These
    modifications do not amount to the issuance of new bidding rules
    within the meaning of Section 309(j)(3)(E).

7.  The Commission has applied the requirements of Section 309(j)(3)(E)
    to "bidding rules" regarding specific mechanisms of day-to-day
    auction conduct, including, for example, the structure of bidding
    rounds and stages, minimum opening bids or reserve prices, minimum
    acceptable bids, and initial maximum eligibility for each
    bidder.[^25] Such mechanisms incorporate the Bureau's power to
    exercise discretion and make changes in appropriate circumstances.
    For example, the Bureau does not create an immutable bidding
    schedule following notice and comment. Instead, the Bureau adopts
    mechanisms for announcing changes in bidding rounds during the
    course of the auction.[^26] Section 309(j)(3)(E) does not require
    anything more stringent. Similarly, the Bureau's use of notice and
    comment when establishing a mechanism for calculating initial
    maximum eligibility does not require further notice and comment
    before the Bureau modifies deadlines for selecting licenses or
    submitting upfront payments, when other relevant concerns make such
    modifications appropriate. Indeed, in the case of Auction No. 44,
    the Bureau departed from the originally announced deadline for
    accepting upfront payments when it extended the original deadline
    for two days without providing further notice or comment pursuant to
    Section 309(j)(3)(E).[^27] Moreover, the Bureau has granted waivers
    in other auctions, when appropriate, with respect to both license
    selections and upfront payments, after the relevant deadline has
    passed.[^28] Section 309(j)(3)(E) does not prohibit the Commission,
    or the Bureau acting on its delegated authority, from changing
    without notice and comment the specific dates by which auction
    participants must select licenses and submit upfront payments.[^29]

8.  Also contrary to Spectrum Holdings' argument, the Auction Reform Act
    does not limit the pre-existing discretion the Commission has,
    consistent with Section 309(j)(3)(E), to modify without notice and
    comment dates for selecting licenses and submitting upfront
    payments. Recognizing that the Bureau needs flexibility and
    discretion in this area in order to respond to changed circumstances
    and conduct an orderly auctions process, the Commission has granted
    the Bureau broad authority to administer competitive bidding
    procedures.[^30] Spectrum Holdings asserts that new Section
    309(j)(15)(A)'s reference to the remainder of Section 309(j)
    transforms Section 309(j)(3)(E) into a prohibition against the
    Bureau's actions.[^31] Section 309(j)(15)(A) provides that, like the
    Commission's design of competitive bidding systems generally, the
    Commission's new discretion to "determine the timing of and
    deadlines for the conduct of competitive bidding," including "the
    timing and deadlines for qualifying for bidding" is subject to the
    goals of Section 309(j).[^32] Thus, for example, the Commission must
    take into account promoting efficient and intensive use of the
    electromagnetic spectrum, pursuant to Section 309(j)(3), when
    exercising its discretion to establish auction schedules. This does
    not, however, transform Section 309(j)(3)(E) into a notice and
    comment requirement for all auction deadlines. In any event, the
    Bureau had previously sought comment generally and always retains
    the discretion to modify its procedures consistent with the goals of
    Section 309(j).[^33]

9.  Spectrum Holdings' also misreads Section 309(j)(15)(C)(ii), added by
    the Auction Reform Act. Section 309(j)(15)(C)(ii) provides that
    "\[t\]he entities that shall be eligible to bid in the auction of
    the C-block and D-block licenses . . . shall be those entities that
    were qualified entities, and that submitted applications to
    participate in auction 44, by May 8, 2002, as part of the original
    auction 44 short form filing deadline."[^34] Pursuant to this
    language, the Bureau announced that previously identified qualified
    bidders among the entities that submitted applications to
    participate in Auction No. 44 by May 8, 2002, would be the only
    parties eligible to participate in the rescheduled Auction No.
    44.[^35] Contrary to Spectrum Holdings' claim, Section
    309(j)(15)(C)(ii) limits *who* is eligible to participate in the
    rescheduled Auction No. 44 and not *what* those parties may bid on
    or *how* their maximum initial eligibility is to be determined.
    Nowhere in this section is there language addressing the *extent* of
    eligibility that any qualified entity is to have in rescheduled
    Auction No. 44.

10. Spectrum Holdings' contention that the Bureau's modification of
    previously announced deadlines for Auction No. 44 violates the
    general administrative law principle that an agency must adhere to
    its own rules and regulations also lacks merit.[^36] Spectrum
    Holdings confuses application deadlines in the Bureau's
    administrative process with Commission rules restricting parties'
    amendments to their applications; administrative deadlines for
    filing and amending applications to participate in auctions are not
    fixed by Commission rules.[^37] "Like the rules governing the filing
    of applications, rules permitting (or suspending) amendment are
    'rules of agency organization, procedure, or practice' exempt from
    the Administrative Procedures Act's notice and comment
    requirement."[^38] No general administrative law principle precludes
    the Bureau, when appropriate, from altering prior deadlines and
    allowing qualified bidders to select additional licenses and
    supplement upfront payments.

11. Moreover, contrary to Spectrum Holdings' argument that the Bureau
    cannot satisfy the Commission's waiver rule,[^39] the present
    circumstances plainly support the Bureau's waiver of Section
    1.2105(b)(2),[^40] which prohibits post-deadline amendments to
    license selections, and the upfront payment deadline.[^41] As noted
    in the *Auction No. 44 Revised Schedule Public Notice,* the Bureau
    established the challenged procedures because qualified bidders
    could not have anticipated the Auction Reform Act's changes to
    Auction No. 44 when they originally submitted license selections or
    upfront payments.[^42] At that time, Auction No. 44 qualified
    bidders had no way of knowing that the Auction Reform Act would
    reduce the amount of spectrum available in Auction No. 44 by more
    than fifty percent.[^43] The removal of 3 of 5 originally available
    license blocks significantly changed the availability of Lower 700
    MHz band spectrum licenses for the near future. Auction No. 44 will
    promote the Communication Act's purposes, such as efficient and
    intensive use of the electromagnetic spectrum, by awarding licenses
    to parties that value them most highly.[^44] The rules governing
    license selection and upfront payments, together with the procedures
    for determining maximum eligibility, further this purpose by
    protecting against insincere bidding while permitting qualified
    bidders flexibility to bid on a variety of licenses.[^45] In light
    of the extraordinary changes in Auction No. 44 required by the
    Auction Reform Act, permitting qualified bidders to select
    additional licenses and supplement upfront payments may be the only
    way to permit a party that currently most highly values a particular
    license to bid on and win it in the auction, thereby promoting
    statutory objectives.[^46] Under these circumstances, the Bureau
    clearly satisfies either of the Commission's relevant tests for
    waivers. The underlying purpose of the rules would not be served by
    refusing to modify the deadlines and modifying the deadlines is in
    the public interest.[^47] Alternatively, given these unique
    circumstances, strict enforcement of the original deadlines would be
    contrary to the public interest and, absent the waivers, qualified
    bidders would have no means of increasing their maximum eligibility
    to bid on licenses in which they now have an interest.[^48]

12. In light of the significant timing and inventory changes to the
    auction mandated by the Auction Reform Act, the Bureau acted
    reasonably and fairly to ensure that all qualified bidders were
    offered the maximum amount of flexibility consistent with the
    requirements of the legislation. Importantly, the Bureau's actions
    in response to the legislation promote the objectives of Section
    309(j)(3) of the Communications Act, including the fostering of
    economic opportunity and competition, the recovery for the public of
    a portion of the value of the spectrum, and the efficient and
    intensive use of the spectrum.[^49] Within the limited pool of
    qualified bidders, the Bureau acted to maximize competition
    consistent with the statute. Granting the relief sought by Spectrum
    Holdings would undermine competition and intensive use of the
    spectrum in these circumstances. The overarching goal of the
    Commission's auctions process is to ensure that spectrum is awarded
    to those that value it most highly, thereby promoting efficient and
    effective spectrum use.[^50] Nothing in the Auction Reform Act bars
    the Bureau from continuing to pursue these goals, especially here
    where there is already a potential diminishment of competition
    (*i.e*., by the withdrawal of potential bidders and by limiting the
    pool of qualified bidders).

13. Finally, Spectrum Holdings' opposition to the Bureau's deadline for
    requesting the return of upfront payments is unsupported by the
    Auction Reform Act. Spectrum Holdings maintains that the Auction
    Reform Act's requirement that the Commission return certain upfront
    payments for certain qualified bidders by July 19, 2002, gives those
    bidders a right to request returns until 6 p.m. ET July 16, 2002,
    only two full days before the statute's deadline for the returns and
    almost two weeks after the 6 p.m. ET July 3, 2002 deadline the
    Bureau established in the *Auction No. 44 Revised Schedule Public
    Notice*.[^51] The Auction Reform Act requires that "\[w\]ithin one
    month after the date of enactment of this \[provision\], the
    Commission shall return to the bidders for licenses in the A-block,
    B-block, and E-block of auction 44 the full amount of all upfront
    payments made by such bidders for such licenses."[^52] The
    Commission, however, cannot determine the precise amounts to return
    because qualified bidders' aggregate upfront payments are not
    license specific.[^53] Accordingly, the Bureau established a
    procedure for qualified bidders eligible to bid on A, B, or E block
    licenses to request a full or partial return of their upfront
    payments.[^54] The Bureau allowed qualified bidders one week, or
    five business days, after the release of the *Auction No. 44 Revised
    Schedule Public Notice* to provide the necessary information to
    process any requests, *i.e.*, not later than 6 p.m. ET July 3, 2002.
    By establishing this deadline, the Bureau provided the Commission
    with eleven business days to process the requests, and resolve any
    potential disputes, while complying with the Auction Reform Act's
    statutory deadline. Thus, the Bureau's procedure both complies with
    the Auction Reform Act and accommodates qualified bidders by giving
    them five business days to determine the amount of their upfront
    payment to be returned.[^55]

# CONCLUSION and ordering clause

14. For the foregoing reasons, Spectrum Holdings' Petition is denied.
    This action is taken on delegated authority pursuant to 47 U.S.C. §
    155(c) and 47 C.F.R. §§ 0.131(c) 0.331(d) of the Commission's rules.

15. ACCORDINGLY, IT IS ORDERED, pursuant to pursuant to Section 1.106(j)
    of the Commission's rules, 47 C.F.R. §1.106(j), and sections 4(i),
    309, and 405(a) of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 154(i), 309, and 405(a), that the Petition for
    Reconsideration filed on behalf of Spectrum Holdings I, LP, dated
    July 1, 2002 IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Kathleen O'Brien Ham

> Deputy Chief
>
> Wireless Telecommunications Bureau

[^1]: Petition for Reconsideration, Auction No. 44 Revised Schedule,
    License Inventory, and Procedures, filed on behalf of Spectrum
    Holdings I, LP, dated July 1, 2002 ("Petition").

[^2]: Auction Reform Act of 2002, Pub. L. No. 107-195, 116 Stat. 715
    ("Auction Reform Act").

[^3]: Auction Reform Act, sec. 3 (adding para. 15(B) and (C)(i) to 47
    U.S.C. §309(j)) (effectively removing the Lower 700 MHz A, B, and E
    block licenses from Auction No. 44, which comprised 30 of the 48
    megahertz of Lower 700 MHz originally available in Auction No. 44).

[^4]: Auction No. 44 Revised Schedule, License Inventory, and
    Procedures, *Public Notice*, DA 02-1491 (rel. June 26, 2002)
    ("*Auction No. 44 Revised Schedule Public Notice*").

[^5]: *See Auction No. 44 Revised Schedule Public Notice* at 5-8.

[^6]: *See id.* at 2-4.

[^7]: The Bureau received comments both supporting and opposing the new
    procedures adopted for Auction No. 44. On July 24, 2002, the
    Commission received a letter from Congressman W.J. "Billy" Tauzin
    and Senator John Ensign supporting the Bureau's decision to permit
    qualified bidders to select additional licenses and supplement their
    upfront payments. On July 18, 2002, the Commission received a letter
    from Senators Tim Johnson, Max Baucus, and Mike Enzi objecting to
    the Bureau's decision in this matter. In addition, Council Tree
    Wireless, L.L.C. ("Council Tree") submitted a Response to the
    Petition filed by Spectrum Holdings. Response of Council Tree
    Wireless, L.L.C., filed by Mark F. Dever and Kelly N. Stone, counsel
    for Council Tree (July 11, 2002). Council Tree argues that if we
    grant Spectrum Holdings' request to rescind our decision to allow
    qualified bidders in Auction No. 44 to supplement their upfront
    payments, we should nevertheless allow a qualified bidder that
    requested the partial return of its upfront payment to supplement
    its upfront payment up to the level reported for that qualified
    bidder in the *Auction No. 44 Qualified Bidders Public Notice*.
    Auction of Licenses for 698-746 MHz Band, *Public Notice*, DA
    02-1346 (Wireless Telecommunications Bureau rel. June 7, 2002)
    Because we deny Spectrum Holdings' Petition, we need not address
    Council Tree's Response.

[^8]: Auction of Licenses in the 698-746 MHZ Band Scheduled for June 19,
    2002; Notice and Filing Requirements, Minimum Opening Bids, Upfront
    Payments, and Other Auction Procedures, *Public Notice*, 17 FCC Rcd
    4935, 4951 (2002) (\"*Auction No. 44 Procedures Public Notice*\").
    Pursuant to Commission rules, applicants must select the license(s)
    on which they wish to bid in their short-form applications. 47
    C.F.R. §1.2105(a)(2)(i).

[^9]: *Auction No. 44 Procedures Public Notice*, 17 FCC Rcd. at 4951.

[^10]: *See* Auction of Licenses in the 747-762 and 777-792 MHz Bands
    (Auction No. 31); Auction of Licenses in the 698-746 MHz Band
    (Auction No. 44); Cellular Telecommunications & Internet
    Association; Paxson Communications Corporation and the Spectrum
    Clearing Alliance; Applications for Review of Wireless
    Telecommunications Bureau Letter, *Order*, 17 FCC Rcd 10,098 (2002)
    ("*Auction No. 44 AFR Order*").

[^11]: *Auction No. 44 AFR Order*; Auction of Licenses in the 747-762
    and 777-792 MHz Bands (Auction No. 31) Postponed Until January 14,
    2003; Auction of Licenses in the 698-746 MHz Band (Auction No. 44)
    Will Proceed As Scheduled, *Public Notice*, 17 FCC Rcd 10,108 (2002)
    ("*Auction No. 44 Commission Public Notice*").

[^12]: Auction of Licenses for 698-746 MHz Band; Status of FCC Form 175
    Applications to Participate in the Auction; Extension of Upfront
    Payment Deadline, DA 02-1213, *Public Notice*, 17 FCC Rcd 9415, 9415
    (2002) ("*Auction No. 44 Status Public Notice*").

[^13]: *See* Auction Reform Act.

[^14]: Auction Reform Act, sec. 3 (adding para. 15(B) to 47 U.S.C. §
    309(j)); *see also* Auction of Licenses in the 698-746 MHz Band
    Scheduled for June 19, 2002; Comment Sought on Reserve Prices or
    Minimum Opening Bids and Other Auction Procedural Issues, *Public
    Notice*, 17 FCC Rcd 1617 (2002)(public notice scheduling Auction No.
    44).

[^15]: Auction Reform Act, sec. 3 (adding para. 15(C)(ii)(Auction No. 44
    timetable) and (iii)(Auction No. 44 qualified bidders) to 47 U.S.C.
    § 309(j)).

[^16]: Auction Reform Act, sec. 3 (adding para. 15(D) to 47 U.S.C. §
    309(j)).

[^17]: *Auction No. 44 Revised Schedule Public Notice* at 2-4.

[^18]: *Auction No. 44 Revised Schedule Public Notice* at 4-5.

[^19]: *Auction No. 44 Revised Schedule Public Notice* at 5-8.

[^20]: Petition at 5-12.

[^21]: Petition at 12-15.

[^22]: Petition at 15-16.

[^23]: 47 U.S.C. §309(j)(3)(E)(i) ("(3) Design of Systems of Competitive
    Bidding. . . . \[T\]he Commission . . . shall seek to promote . . .
    the following objective\[\]: . . . (E) ensure that, in the
    scheduling of any competitive bidding under this subsection, an
    adequate period is allowed -- (i) before the issuance of bidding
    rules, to permit notice and comment on proposed auction
    procedures\[.\]")

[^24]: Pursuant to the originally established Auction No. 44 procedures,
    a qualified bidder's initial maximum eligibility in the rescheduled
    Auction No. 44 will be determined by licenses selected prior to the
    auction and by the amount of the qualified bidder's upfront payment.
    *Auction No. 44 Procedures Public Notice,* 17 FCC Rcd at 4965.

[^25]: Amendment of Part 1 of the Commission's Rules -- Competitive
    Bidding Procedures; Allocation of Spectrum Below 5 GHz Transferred
    from Federal Government Use, 4660-4685 MHz, WT Docket No. 97-82, ET
    Docket No. 94-32, *Third Report and Order and Second Further Notice
    of Proposed Rule Making*, 13 FCC Rcd 374, 448 (1997) ("*Part 1 Third
    Report and Order*").

[^26]: *See, e.g., Auction No. 44 Procedures Public Notice*, 17 FCC Rcd
    at 4969.

[^27]: *See Auction No. 44 Status Public Notice,* 17 FCC Rcd at 9415*.*

[^28]: *E.g.*, Letter to Melodie A. Virtue, Counsel for Pass Word, Inc.,
    from Mark Bollinger, Acting Chief, Auctions and Industry Analysis
    Division, Wireless Telecommunications Bureau, D.A. 00-274 (rel.
    February 14, 2000) (granting waiver of Section 1.2105(b) to permit
    selecting additional licenses); Letter to Ms. Lynn R. Charytan,
    Counsel to MPCS Wireless, Inc., from Margaret Wiener, Chief,
    Auctions and Industry Analysis Division, Wireless Telecommunications
    Bureau, 15 FCC Rcd 24540 (2000) (granting waiver of upfront payment
    deadline).

[^29]: *See* 47 C.F.R. §§ 0.131(b) and (c), 0.331; *Part 1 Third Report
    and Order*, 13 FCC Rcd at 448-449 ¶ 125 (1997).

[^30]: *Part 1 Third Report and Order*, 13 FCC Rcd at 448-449 ¶ 125
    (1997); Amendment of Part 1 of the Commission's Rules -- Competitive
    Bidding Proceeding, WT Docket No. 97-82, *Order, Memorandum Opinion
    and Order and Notice of Proposed Rule Making*, 12 FCC Rcd 5686,
    5697-5698 ¶ 16.

[^31]: Auction Reform Act, sec. 3(a) (adding para. 15(A) to 47 U.S.C. §
    309(j)) ("(15) Commission To Determine Timing Of Auctions. -- (A)
    Commission Authority. -- Subject to the provisions of this
    subsection (including paragraph (11)), but notwithstanding any other
    provision of law, the Commission shall determine the timing of and
    deadlines for the conduct of competitive bidding under this
    subsection, including the timing of and deadlines for qualifying for
    bidding; conducting auctions; collecting, depositing, and reporting
    revenues; and completing licensing processes and assigning
    licenses.")

[^32]: *See, generally,* 47 U.S.C. §309(j).

[^33]: *Id*.

[^34]: Auction Reform Act, sec. 3 (adding para. 15(C)(ii) to 47 U.S.C.
    §309(j)).

[^35]: *Auction No. 44 Revised Schedule Public Notice* at 2.

[^36]: Petition at 12-15 (citing, *inter alia*, *Accardi v.
    Shaughnessy*, 347 U.S. 260 (1954)).

[^37]: *See* 47 C.F.R. §1.2105(b)(2) (rule determines effect of the
    deadline without establishing the deadline).

[^38]: *Bachow Communications, Inc. v. Federal Communications
    Commission*, 237 F.3d 683, 690 (D.C. Cir. 2001) (citations omitted).

[^39]: *See* 47 C.F.R. §1.925.

[^40]: 47 C.F.R. §1.2105(b)(2).

[^41]: *Auction No. 44 Revised Schedule Public Notice* at 5-6 (granting
    waivers).

[^42]: *Id.*

[^43]: The Auction Reform Act's provisions effectively removing the A,
    B, and E blocks, or 30 megahertz of the 48 megahertz of Lower 700
    MHz licenses covering the country that were available in Auction No.
    44, were not introduced until June 18, 2002, more than two weeks
    after the upfront payment deadline and one day prior to Auction No.
    44's scheduled start date. *See* 148 Cong. Rec. S5714-02, S5715
    (daily ed. June 18, 2002) (text of amendments).

[^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, 2360-61 (1994).

[^45]: *See Competitive Bidding Second Report and Order,* 9 FCC Rcd at
    (¶¶173-175) ("bidders will be limited in an auction to bidding on
    licenses . . . that their upfront payment covers \[while having\]
    the flexibility to change its strategy during the auction\[.\]").

[^46]: *See also* Amendment of Part 1 of the Commission's Rules --
    Competitive Bidding Procedures; Allocation of Spectrum Below 5 GHz
    Transferred from Federal Government Use; 4660-4685 MHz, WT Docket
    No. 97-82, ET Docket No. 94-32, *Third Report and Order and Second
    Further Notice of Proposed Rule Making,* 13 FCC Rcd 374, 414-15 ("we
    recognize that there may be some circumstances in which the
    competitiveness of the auction might be enhanced by allowing
    applicants to add markets to their short-form applications," while
    concluding that generally such additional selections should be
    prohibited).

[^47]: *See* 47 C.F.R. §1.925(b)(3)(i).

[^48]: *See* 47 C.F.R. §1.925(b)(3)(ii). The radical change in available
    spectrum may or may not change individual qualified bidders'
    valuations of particular licenses or the total number of licenses
    they seek to purchase. Spectrum Holdings forecasts that the
    interests of qualified bidders will not be substantially changed.
    Petition at 15. Rather than rely on forecasts by Spectrum Holdings
    or any other party, however, the Bureau chose to permit qualified
    bidders to increase their initial maximum eligibility so the bidders
    will be able to bid based on their current valuations.

[^49]: 47 C.F.R. § 309(j)(3).

[^50]: *See* FCC Report to Congress on Spectrum Auctions, WT Docket No.
    97-150, FCC 97-353 (1997).

[^51]: Petition at 15-16.

[^52]: Auction Reform Act, sec. 3 (adding para. 15(D) to 47 U.S.C.
    §309(j)).

[^53]: *See Auction No. 44 Procedures Public Notice,* 17 FCC Rcd at
    4965.

[^54]: *See Auction No. 44 Revised Schedule Public Notice* at 3-4.

[^55]: In addition, the Bureau's decision to allow qualified bidders
    remaining in Auction No. 44 to supplement their upfront payments
    gives these qualified bidders an opportunity effectively to revise
    any requests they later deem excessive. *See Auction No. 44 Revised
    Schedule Public Notice* at 6-8.