DA 00-699
								March 30, 2000

								
Mr. John Prendergast 
Blooston, Mordkofsky, Jackson & Dickens
2120 L Street, N.W.
Washington, DC  20037

Dear Mr. Prendergast:

This letter responds to the Request for Waiver and Request for Leave to Amend that you filed on 
March 27, 2000 on behalf of your client, Landmark Site Development, LLC ("Applicant").   
Applicant is seeking permission to amend its FCC Form 175 ("short-form application") for 
participation in Auction No. 30 to add 39 GHz license frequency blocks B through N within the 
market service areas specified in its application.   Specifically, Applicant requests a waiver of 
Section 1.2105 (b)(2) of the Commission's rules to permit a change to frequencies within the 
market service areas identified in its short-form application.   According to Applicant, it intended to 
select all the 39 GHz license blocks for the market service areas in which it actually selected only 
one license block.  Absent a waiver, Applicant would be ineligible to bid on all 39 GHz license 
blocks in those market service areas because all of those licenses were not properly selected on its 
short-form application.  For the reasons discussed below, we grant Applicant's Request. 

To obtain a waiver of the Commission's competitive bidding rules,  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 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.  

In support of its Request, Applicant argues that it intended to select all 39 GHz frequency blocks for 
those market service areas specified in its short-form application to create the maximum opportunity 
to win enough spectrum blocks to accommodate broadband services (i.e., frequency blocks A 
through N, corresponding to 39 GHz channels 1 through 14).  Specifically, Applicant contends that 
when Applicant submitted its short-form application using the Commission's submission software, 
it believed it had selected all fourteen 39 GHz frequency blocks for the designated BEA markets.  
Applicant contends that, because of the confusing format of the auction software, compounded by 
the format of the license list in the related Auction No. 30 Public Notice,  Applicant's choice of 
frequencies was not reflected in the final submission.  

In particular, Applicant claims that when a representative of the Applicant reviewed this listing of 
39 GHz licenses prior to preparing for the electronic filing, he saw that the licenses corresponding 
to 39 GHz frequency blocks A-N were listed in a single block corresponding to each market 
number and license name, and mistakenly concluded that this "all frequency block" grouping was 
similarly reflected in the short-form application submission software.  Applicant contends that it did 
not affirmatively select frequency block "A" when composing the markets for bidding eligibility, 
believing that all frequency blocks would be included by its choice of a particular BEA market. 
Applicant claims that it was only after it reviewed the release of the Auction No. 30 Status Public 
Notice  that it realized that the software automatically defaults to frequency block A when a 
particular BEA is selected.  Accordingly, Applicant argues that it should be permitted to correct its 
application to specify all of the frequency blocks for which it intends to bid.  Applicant contends 
that a prohibition against correcting its application would be fundamentally unfair since its 
application was already accepted for filing, and such action would not be prejudicial to any other 
party.  Applicant further argues that allowing it to amend its application will serve the public 
interest, as it will create greater competition. 

We note that the Auction No. 30 Public Notice did include precise frequencies related to license 
blocks within spectrum to be auctioned.   Therefore, Applicant was on notice of the frequencies 
related to the separate license blocks within each market area for the 39 GHz band.  Nevertheless, 
we note that the software selection format and instruction mechanisms for the 2,450 licenses in the 
39 GHz band were complex and may have contributed to Applicant's misunderstanding.  We find 
that Applicant's explanation of its mistake is 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 licenses to their 
short form applications, unless a waiver of the rules is warranted.  The facts presented in 
Applicant's Request show unique circumstances supporting the grant of these waivers pursuant to 
Section 1.925 of the Commission's rules.   Consequently, we will permit Applicant to amend its 
short-form application to add the licenses listed in its Request, and these amendments will allow 
Applicant to bid on those licenses.

This action is taken under the delegated authority pursuant to Section 0.331 of the Commission's 
rules.   


							Sincerely,


							Mark Bollinger
							Acting Chief, Auctions and Industry Analysis
							Wireless Telecommunications Bureau
  	See Request for Waiver by Landmark Site Development, LLC and Request for Leave to Amend, filed March 
28, 2000 ("Request").

  	Landmark Site Development, LLC selected the following market service areas in its short-form application:  
BEA002, Portland, ME and BEA005, Albany-Schenectady-Troy, NY.    

  	47 C.F.R.  1.2105(b)(2).  

  	47 C.F.R.  1.2105(b)(2).

  	47 C.F.R.  1.925.

  	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").

  	See "Auction of Licenses for Fixed Point-to-Point Microwave Service in the 38.6 to 40.0 GHz (39 GHz) 
Band; Status of Applications to Participate in the Auction," Public Notice, DA 00-615 (rel. March 17, 2000) 
("Auction No. 30 Status Public Notice").

 	See Auction No. 30 Public Notice at 5-6.

 	47 C.F.R.  1.925.

 	47 C.F.R.  0.331.
 

 
 
John Prendergast, Esq.
March 30, 2000



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FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554