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 Federal  Communications  Commission  DA  06-  2368 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 MARITIME  COMMUNICATIONS/  LAND  MOBILE  LLC 


 Application  for  New  Automated  Maritime  Telecommunications  System  Stations 
 Request  for  Waiver  of  Section  1.2110(  c)(  5)(  A)  of  the  Commissions  Rules 


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 File  No.  0002303355 


 ORDER 
 Adopted:  November  27,  2006  Released:  November  27,  2006 
 By  the  Chief,  Mobility  Division,  Wireless  Telecommunications  Bureau: 
 1.  Introduction.  On  September  7,  2005,  Maritime  Communications/  Land  Mobile,  LLC  (MC/  LM  or  Applicant)  filed  the  captioned  application  (Application)  for  new  Automated  Maritime 
 Telecommunications  System  (AMTS)  licenses  for  which  it  was  the  winning  bidder  in  FCC  Auction  No.  61.  1  In  the  Application,  MC/  LM  claims  eligibility  for  a  35  percent  bidding  credit  as  a  very  small 
 business,  in  support  of  which  it  provided  gross  revenue  data  for  three  disclosable  interest  holders.  2  At  staff  request,  MC/  LM  amended  the  Application  on  August  21,  2006,  to  add  revenue  data  for  Donald  R. 
 DePriest  (Mr.  DePriest),  the  husband  of  Sandra  M.  DePriest  (Mrs.  DePriest),  Officer,  Director,  and  holder  of  a  100  percent  indirect  ownership  interest  in  MC/  LM.  3  If  Mr.  DePriests  gross  revenues  are  attributed 
 to  MC/  LM,  the  Applicant  concedes,  MC/  LM  would  be  entitled  only  to  a  reduced  bidding  credit  of  25  percent  as  a  small,  but  not  very  small,  business.  4  MC/  LM  contends,  however,  that  the  spousal 
 attribution  rule  pertaining  to  designated  entity  showings,  Section  1.2110(  c)(  5)(  iii)(  A)  of  the 
 1  See  FCC  File  No.  0002303355,  filed  Sept.  7,  2005  (Application),  as  amended  Aug.  21,  2006  (Amended 
 Application).  2 
 See  Disclosable  Interest  Holders  exhibit  to  Application.  The  listed  disclosable  interest  holders  were  Communications  Investments,  Inc.,  Sandra  M.  DePriest  (Mrs.  DePriest),  and  S/  RJW  Partnership,  L.  P.  The  only 


 gross  revenues  attributed  to  MC/  LM  were  those  of  Mrs.  DePriest,  who  had  reported  average  gross  revenues  for  the  past  three  years  of  $398,  156.  67. 
 3  See  Attachment  to  Amended  Application.  MC/  LM  has  repeatedly  represented  that  Mrs.  DePriest  has  held  100 
 percent  control  of  MC/  LM  at  all  relevant  times.  See,  e.  g.,  id.  at  1;  Maritime  Communications/  Land  Mobile,  LLC  and  Paging  Systems,  Inc.,  Order,  21  FCC  Rcd  8794,  8797-  98    7  n.  38  (WTB  PSCID  2006)  (August  2006  Order) 


 (citing  MC/  LMs  representation  in  an  opposition  pleading  that,  [  a]  t  all  times  from  the  filing  of  MC/  LMs  Form  175  application  to  the  date  of  the  filing  of  the  instant  opposition,  Sandra  M.  DePriest  has  held  one  hundred  percent 
 control  of  MC/  LM).  The  August  2006  Order  was  adopted  by  the  Public  Safety  and  Critical  Infrastructure  Division  (PSCID)  of  the  Wireless  Telecommunications  Bureau  (Bureau).  Pursuant  to  a  Commission  reorganization  effective 
 September  25,  2006,  the  relevant  duties  of  PSCID  were  assumed  by  the  Bureaus  Mobility  Division.  See  Establishment  of  the  Public  Safety  and  Homeland  Security  Bureau,  Order,  FCC  06-  35  (rel.  Sept.  25,  2006). 
 4  See  Attachment  to  Amended  Application  at  1.  According  to  the  Attachment  to  the  Amended  Application,  Mr. 
 DePriest  controls  American  Nonwovens  Corporation  (ANC),  which  had  average  gross  revenues  for  the  past  three  years  of  $9,  838,  403.  Id. 
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 Commissions  Rules,  5  should  not  apply  here  because  Mr.  DePriest  has  no  ownership  interest  in,  and  is  neither  an  officer  nor  a  director  of,  the  Applicant,  and  he  and  Mrs.  DePriest  live  separate  economic 
 lives.  6  Although  MC/  LM  thus  believes  that  no  waiver  of  Section  1.2110(  c)(  5)(  iii)(  A)  is  required  in  this  case,  it  requests  such  a  waiver  in  an  abundance  of  caution,  in  case  the  Commission  were  to  conclude 
 differently.  7  For  the  reasons  that  follow,  we  conclude  that  Section  1.2110(  c)(  5)(  iii)(  A)  of  the  Commissions  Rules  requires  the  attribution  of  Mr.  DePriests  revenues  to  MC/  LM  for  purposes  of 
 determining  its  designated  entity  status.  We  further  conclude  that  MC/  LM  has  not  demonstrated  a  basis  for  waiving  that  rule  here.  We  find,  therefore,  that  MC/  LM  is  entitled  only  to  a  25  percent  bidding  credit 
 as  a  small  business.  8 
 2.  Background.  In  1981,  the  Commission  designated  spectrum  for  AMTS  operations  at  the  request  of  tug,  towboat,  and  barge  operators,  who  had  complained  that  the  existing  ship-  shore 


 communications  service  was  not  adequate  to  meet  their  needs.  9  The  Commission  has  designated  two  spectrum  channel  blocks  for  AMTS  operations.  10  In  2002,  the  Commission  adopted  a  geographic 
 licensing  approach  for  AMTS  stations  and,  pursuant  to  statutory  mandate,  was  required  to  use  competitive  bidding  to  resolve  mutually  exclusive  applications.  11  On  August  17,  2005,  the  Commission  completed 
 the  auction  of  ten  AMTS  licenses  in  Auction  No.  61.  12  MC/  LM  was  the  winning  bidder  for  the  Block  A 


 5  47  C.  F.  R.    1.2110(  c)(  5)(  iii)(  A).  Although  MC/  LM  refers  to  this  rule  as  the  spousal  attribution  rule,  the  rule 
 itself  uses  the  term  spousal  affiliation.  6 
 See  Attachment  to  Amended  Application  at  1.  7 
 Id.  at  1-  2.  8 
 MC/  LM  also  submitted  a  letter  to  the  Bureau  on  May  25,  2006,  requesting  that  the  Bureau  complete  the  processing  of  long-  form  applications  filed  by  winning  bidders  in  Auction  No.  61.  Letter  from  John  Reardon,  President 


 Maritime  Communications/  Land  Mobile,  LLC  to  Catherine  W.  Seidel,  Acting  Bureau  Chief,  Wireless  Telecommunications  Bureau  (May  25,  2006).  With  the  release  of  this  Order,  the  Bureau  is  prepared  to  process 
 MC/  LMs  application,  FCC  File  No.  0002303355.  9 
 See  Amendment  of  Parts  2,  81  and  83  of  the  Commissions  Rules  to  Allocate  Spectrum  for  an  Automated  Inland  Waterways  Communications  System  (IWCS)  along  the  Mississippi  River  and  Connecting  Waterways,  GEN  Docket 


 No.  80-  1,  84  F.  C.  C.  2d  875,  876    2  (1981),  on  recon.,  Memorandum  Opinion  and  Order,  88  F.  C.  C.  2d  678  (1982),  affd  sub  nom.  WJG  Tel.  Co.  v.  FCC,  675  F.  2d  386  (D.  C.  Cir.  1982).  The  Commission  originally  allocated  spectrum 
 for  AMTS  use  on  the  Mississippi  River,  then  expanded  the  authorized  service  area  to  the  Gulf  Intracoastal  Waterway  in  1982,  the  Gulf  of  Mexico  in  1984,  and  nationwide  in  1991.  See  Amendment  of  Parts  2  and  80  of  the  Commissions 
 Rules  Applicable  to  Automated  Maritime  Telecommunications  Systems  (AMTS),  First  Report  and  Order,  GEN  Docket  No.  88-  372,  6  FCC  Rcd  437  (1991);  Amendment  of  Parts  2,  81  and  83  of  the  Rules  to  Add  the  Gulf  of  Mexico 
 to  the  Authorized  Service  Areas  of  Maritime  Mobile  Systems  Operating  in  the  216-  220  MHz  Band,  Report  and  Order,  GEN  Docket  No.  84-  18,  56  Rad.  Reg.  2d  (P  &  F)  1613  (1984);  Amendment  of  Parts  2,  81  and  83  of  the  Rules  to  Add 
 the  Gulf  Intracoastal  Waterway  to  the  Authorized  Service  Area  of  Inland  Waterways  Communications  Systems,  Report  and  Order,  GEN  Docket  No.  81-  822,  51  Rad.  Reg.  2d  (P  &  F)  440  (1982).  In  1997,  the  Commission  adopted  rules  to 
 permit  AMTS  stations  to  provide  commercial  service  to  units  on  land,  as  well  as  to  maritime  vessels.  See  Amendment  of  the  Commissions  Rules  Concerning  Maritime  Communications,  Second  Report  and  Order  and  Second  Further 
 Notice  of  Proposed  Rule  Making,  PR  Docket  No.  92-  257,  12  FCC  Rcd  16949,  16965    24  (1997);  47  C.  F.  R.    80.123. 
 10  AMTS  Channel  Blocks  A  (217.  5-  218/  219.  5-  220  MHz)  and  B  (217-  217.  5/  219-  219.  5  MHz).  See  47  C.  F.  R. 
   80.  385(  a)(  2).  11 
 See  Amendment  of  the  Commissions  Rules  Concerning  Maritime  Communications,  Second  Memorandum  Opinion  and  Order  and  Fifth  Report  and  Order,  PR  Docket  No.  92-  257,  17  FCC  Rcd  6685,  6686-  87,  6695,  6718 


   2,  21,  79  (2002);  47  U.  S.  C.    309(  j)(  1).  12 
 See  Auction  of  Automated  Maritime  Telecommunications  System  Licenses  Closes:  Winning  Bidders  Announced  for  Auction  No.  61,  Public  Notice,  20  FCC  Rcd  13747  (WTB  2005)  (Auction  Closing  PN).  The  licenses  available  in 


 Auction  No.  61  were  those  for  which  there  was  no  winning  bidder  in  the  first  AMTS  auction,  Auction  No.  57,  which  (continued....) 
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 licenses  covering  the  Mid-  Atlantic,  Mississippi  River,  Great  Lakes,  and  Southern  Pacific  regions.  13  MC/  LM  timely  submitted  its  down  payment  and  long-  form  application,  and  on  October  31,  2005,  the 
 Wireless  Telecommunications  Bureau  issued  a  Public  Notice  announcing  that  MC/  LMs  long-  form  application  had  been  accepted  for  filing.  14 


 3.  In  Auction  No.  61,  a  winning  bidder  that  qualified  as  a  very  small  business  was  entitled  to  claim  a  bidding  credit  of  35  percent,  and  a  winning  bidder  that  qualified  as  a  small  business  was  entitled 
 to  claim  a  bidding  credit  of  25  percent.  15  A  very  small  business  is  defined  as  an  entity  with  attributed  average  annual  gross  revenues  that  do  not  exceed  $3  million  for  the  preceding  three  years,  and  a  small 
 business  is  defined  as  an  entity  with  attributed  average  annual  gross  revenues  of  more  than  $3  million  but  less  than  $15  million  for  the  preceding  three  years.  16  Section  1.2110(  c)(  5)(  iii)(  A)  of  the  Commissions 
 Rules  provides  in  relevant  part  that,  for  purposes  of  determining  the  affiliates  of  an  applicant  claiming  designated  entity  status,  [  b]  oth  spouses  are  deemed  to  own  or  control  or  have  the  power  to  control 
 interests  owned  or  controlled  by  either  of  them,  unless  they  are  subject  to  a  legal  separation  recognized  by  a  court  of  competent  jurisdiction  in  the  United  States.  17 


 4.  As  noted,  MC/  LM  claims  eligibility  for  a  35  percent  bidding  credit  as  a  very  small  business,  but  concedes  that,  if  Mr.  DePriest  is  deemed  an  affiliate  of  MC/  LM,  the  attribution  to  MC/  LM 
 of  his  average  gross  revenues  would  render  MC/  LM  eligible  for  only  a  25  percent  bidding  credit  as  a  small  business.  18  MC/  LM  argues  that  such  attribution  is  not  required  or  warranted  under  Section 
 1.2110(  c)(  5)(  iii)(  A),  because  Mr.  DePriest  has  no  ownership  interest  or  position  in  MC/  LM,  and  Mr.  and  Mrs.  DePriest  have  their  own,  separate  sources  of  revenue.  19  Under  these  circumstances,  MC/  LM 
 contends,  the  presumption  of  spousal  affiliation    is  rebutted.  20  In  the  event  that  the  Commission  disagrees,  concluding  that  Mr.  De  Priests  revenues  are  attributable  to  MC/  LM  under  Section 
 1.2110(  c)(  5)(  iii)(  A),  MC/  LM  requests  a  waiver  of  that  rule.  21  MC/  LM  argues  that  unique  circumstances  exist  which  make  it  unreasonable  to  apply  the  spousal  affiliation  rule  to  MC/  LM,  again  pointing  to  the 
 financial  and  professional  independence  of  the  DePriests.  22  MC/  LM  adds  that,  given  the  separate  character  of  [the  DePriests]  economic  lives  and  their  independent,  substantial  contributions  to  society, 
 the  underlying  purpose  of  the  rule,  which  MC/  LM  says  is  to  prevent  the  award  of  bidding  credits  to  persons  or  entities  who  are  not  entitled  to  them,  would  not  be  served  by  applying  the  rule  in  this 


 (...  continued  from  previous  page)  closed  on  September  15,  2004.  See  Auction  of  Automated  Maritime  Telecommunications  System  Licenses 
 Scheduled  for  August  3,  2005,  Public  Notice,  20  FCC  Rcd  7811,  7816  (WTB  2005)  (Procedures  PN).  13 
 See  Auction  Closing  PN,  20  FCC  Rcd  at  13755.  14 
 See  Wireless  Telecommunications  Bureau  Announces  that  Applications  for  Automated  Maritime  Telecommunications  System  Licenses  Are  Accepted  for  Filing,  Public  Notice,  20  FCC  Rcd  17066  (WTB  2005). 


 15  See  47  C.  F.  R.    1.  2110(  f)(  2)(  i)-(  ii),  80.  1252. 
 16  47  C.  F.  R.    80.1252.  See  Procedures  PN,  20  FCC  Rcd  at  7828-  29. 
 17  47  C.  F.  R.    1.  2110(  c)(  5)(  iii)(  A). 
 18  See  Attachment  to  Amended  Application  at  1. 
 19  Id.  MC/  LM  also  represents  that  Mrs.  DePriest  was,  at  one  time,  an  officer  of  ANC  and  did  some  work  for  that 
 company  more  than  ten  years  ago,  but  has  had  no  relationship  with  ANC  since  then.  Id.  20 
 Id.  21 
 Id.  22 
 Id.  at  1-  2.  MC/  LM  represents,  inter  alia,  that  Sandra  has  a  well  established  professional  and  clerical  life  of  her  own  and  is  fully  capable  of  operating  MC/  LM  without  contribution  by  or  interference  from  Don.  Id. 
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 instance.  23  Finally,  MC/  LM  also  asserts  that  the  public  interest  would  be  served  by  providing  the  larger  35  percent  bidding  credit  to  a  woman-  owned  business.  24 
 5.  Discussion.  We  conclude  that  Section  1.2110(  c)(  5)(  iii)(  A)  of  the  Commissions  Rules  clearly  requires  that  the  revenues  of  Mr.  DePriest,  including  those  stemming  from  his  ownership  and 
 control  of  ANC,  be  attributed  to  MC/  LM.  25  Although  MC/  LM  claims  that  it  has  made  a  sufficient  showing  to  rebut  application  of  the  spousal  affiliation  rule,  this  argument  fails  for  the  simple  reason  that 
 the  rule  does  not  establish  a  presumption  of  spousal  affiliation  that  is  subject  to  rebuttal,  but  rather  a  hard  and  fast  requirement  that  spouses  be  deemed  affiliates  unless  they  are  legally  separated.  26  The  spousal 


 23  Id.  at  2. 
 24  Id. 
 25  The  instant  Order  addresses  only  the  issue  of  whether  the  revenues  of  Mr.  DePriest  are  properly  attributable  to 
 MC/  LM.  We  therefore  dismiss  as  an  unauthorized  pleading  a  Request  to  Place  on  Public  Notice,  Request  for  Leave  to  Supplement,  and  Request  to  Dismiss  (Request)  filed  on  September  12,  2006,  by  Warren  C.  Havens 


 (Havens),  acting  individually  and  as  the  president  of  entities  that  filed  competing  applications  in  Auction  No.  61.  See,  e.  g.,  47  C.  F.  R.    1.45;  Kim  Shaw  Wong,  Memorandum  Opinion  and  Order,  11  FCC  Rcd  11928,  11930    7 
 (1996).  The  Bureau  previously  addressed  a  petition  to  deny  filed  by  Havens  (and  the  Havens-  controlled  entities)  against  the  Application,  in  which  he  contends,  inter  alia,  that  MC/  LM  should  be  disqualified  to  hold  these  licenses 
 based  on  alleged  real-  party-  in-  interest  violations,  misrepresentations  to  the  Commission,  and  other  transgressions.  See  August  2006  Order,  n.  3,  supra.  Havens  has  filed  a  petition  for  reconsideration  of  the  August  2006  Order,  and 
 our  action  herein  is  without  prejudice  to  resolution  of  the  issues  raised  in  that  petition  for  reconsideration.  There  is  no  need  or  reason  to  consider  those  same  issues  here.  Havens  is  incorrect  in  contending  that  the  amendment  to  the 
 Application  is  a  major  amendment,  requiring  that  it  be  placed  on  public  notice.  See  Request  at  3.  Neither  Section  1.2105(  b)  of  the  Rules,  47  C.  F.  R.    1.  2105(  b),  which  expressly  pertains  only  to  short-  form  applications  and  to 
 certifications  required  by  this  section,  nor  Section  1.929(  a)(  2),  47  C.  F.  R.    1.929(  a)(  2),  classifies  MC/  LMs  amendment  as  a  major  amendment.  Section  1.929(  a)(  2)  treats  as  major  any  amendment  reflecting  a  substantial 
 change  in  ownership  or  control  of  an  applicant,  but  MC/  LM  does  not  represent  that  any  such  substantial  change  of  ownership  has  occurred,  and,  as  discussed  below,  our  determination  that  Mr.  DePriests  revenues  must  be  attributed 
 to  MC/  LM  due  to  the  spousal  affiliation  rule  is  not  based  on  a  finding  that  he  exercised  actual  ownership  or  control.  In  addition,  the  Commission  previously  ruled  that  a  post-  auction  amendment  that  decreases  an  applicants  bidding 
 credit,  as  here,  is  a  minor  amendment,  and  a  federal  court  of  appeals  upheld  that  ruling.  See  Biltmore  Forest  Broadcasting  FM,  Inc.  v.  FCC,  321  F.  3d  155,  162-  63  (D.  C.  Cir.  2003),  rehg  and  rehg  en  banc  denied,  April  10, 
 2003,  cert.  denied,  540  U.  S.  981,  124  S.  Ct.  463,  157  L.  Ed.  2d  371  (2003).  In  any  event,  given  that  we  determine  that  MC/  LM  is  eligible  only  for  the  25  percent  bidding  credit,  the  less  favorable  to  MC/  LM  of  the  two  possible  outcomes 
 under  consideration  here,  we  fail  to  see  how  this  decision  harms  Havens  in  any  way.  See  id.  at  162-  63  (stating  that  the  Court,  like  the  Commission,  does  not  see  how  other  bidders  are  prejudiced,  or  the  integrity  of  the  auction  process 
 adversely  affected,  by  a  bidders  mistaken  assumption  that  it  was  entitled  to  a  greater  bidding  credit  than  it  ultimately  is  accorded). 
 26  The  kinship  affiliation  rule,  47  C.  F.  R.    1.  2110(  c)(  5)(  iii)(  B),  which  applies  to  specified  immediate  family 
 members  of  an  applicant,  does  provide  for  a  rebuttable  presumption  of  affiliation,  but  that  rule  is  not  at  issue  in  this  case.  In  adopting  the  kinship  affiliation  rule,  the  Commission  incorporated  the  definition  of  immediate  family 


 member  in  the  Small  Business  Administrations  rules,  13  CFR    124.100  (1994),  which  included,  among  others,  husbands  and  wives,  step-  parents,  step-  children,  half-  siblings,  and  in-  laws.  However,  the  more  specific  spousal 
 affiliation  rule  requires  that  spouses  be  deemed  affiliates  with  the  sole  exception  of  when  the  spouses  are  legally  separated.  MC/  LM  does  not  argue,  and  we  discern  no  basis  for  finding,  that  application  of  the  narrowly  focused 
 spousal  affiliation  rule  can  be  supplanted  in  this  case  by  application  of  the  kinship  affiliation  rule.  In  adopting  these  rules,  the  Commission  made  clear  that  it  intended  that  a  more  rigorous  standard  apply  to  spouses  than  to  other 
 family  members.  See  Implementation  of  Section  309(  j)  of  the  Communications  Act    Competitive  Bidding,  Second  Memorandum  Opinion  and  Order,  PP  Docket  No.  93-  253,  9  FCC  Rcd  7245,  7262    102  (1994)  (  Because  we 
 believe  kinship  relationships  in  many  cases  do  not  present  the  same  potential  for  abuse  that  exists  with  spousal  relationships,  particularly  in  terms  of  the  identity  of  interest  that  are  likely  to  exist  between  the  persons  involved, 
 we  shall  adopt  a  more  relaxed  standard  for  determining  when  kinship  interests  must  be  attributed  to  applicants). 
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 affiliation  rule  establishes  what  the  Commission  termed  a  workable  bright-  line  standard,  27  based  on  the  relevant  Small  Business  Administration  regulations,  and  is  intended  to  obviate  the  need  for  case-  by-  case 
 determinations  as  to  whether  a  particular  applicants  spouse  should  be  deemed  an  affiliate,  and  his  or  her  revenues  attributed  to  the  applicant.  28  Rather  than  entertain  individualized  demonstrations  of  spousal 
 independence,  such  as  the  rebuttal  showing  offered  here  by  MC/  LM,  the  Commission  determined  that  we  will  in  every  instance  attribute  the  financial  interests  of  an  applicants  spouse  to  the  applicant,  29 
 except  in  cases  of  legal  separation  recognized  by  a  court  of  competent  jurisdiction.  30  The  Commission  recognized  that  this  approach  could  lead  in  some  cases  to  harsh  results,  but  concluded  that  this 
 consideration  was  outweighed  by  the  benefits  of  a  bright-  line  rule  in  terms  of  clarity  and  certainty.  31  We  thus  conclude  that  the  spousal  affiliation  rule  does  apply  to  MC/  LM,  notwithstanding  its  claims  regarding 
 Mrs.  DePriests  financial  independence  from  Mr.  DePriest  and  her  exercise  of  sole  control  over  MC/  LM.  Accordingly,  absent  a  waiver,  Mr.  DePriests  revenues  must  be  attributed  to  MC/  LM  for  purposes  of 
 determining  its  designated  entity  status. 
 6.  Section  1.925  of  the  Commissions  Rules  provides  that  we  may  grant  a  waiver  if  it  is  shown  that  (a)  the  underlying  purpose  of  the  rule(  s)  would  not  be  served  or  would  be  frustrated  by 


 application  to  the  instant  case,  and  grant  of  the  requested  waiver  would  be  in  the  public  interest;  or  (b)  in  light  of  unique  or  unusual  circumstances,  application  of  the  rule(  s)  would  be  inequitable,  unduly 
 burdensome,  or  contrary  to  the  public  interest,  or  the  applicant  has  no  reasonable  alternative.  32  Based  on  the  record  before  us,  we  conclude  that  the  waiver  request  should  be  denied. 


 7.  With  respect  to  the  first  prong  of  the  waiver  standard,  MC/  LM  argues  that  the  purpose  of  the  spousal  affiliation  rule  is  to  prevent  the  award  of  bidding  credits  to  persons  or  entities  who  are  not 
 entitled  to  them,  and  that  this  regulatory  purpose  would  not  be  undermined  if  we  do  not  attribute  Mr.  DePriests  revenues  to  MC/  LM.  33  We  disagree.  The  premise  of  this  argument  is  that  MC/  LM  should 
 receive  a  35  percent  bidding  credit,  irrespective  of  the  revenues  of  Mr.  DePriest,  because  the  latter  has  no  interest  in  or  control  of  MC/  LM,  and  leads  what  MC/  LM  terms  an  independent  economic  life  from  that 
 of  his  wife,  MC/  LMs  real-  party-  in-  interest.  As  discussed  above,  however,  the  spousal  affiliation  rule  is  based  on  precisely  the  opposite  premise:  that,  except  in  cases  of  legal  separation,  determining  an 
 applicants  entitlement  to  a  particular  designated  entity  status  should  always  take  into  account  the  spouses  revenues.  Given  that  the  Commission  adopted  this  bright-  line  rule  with  a  clear  understanding 
 that  it  might  result  in  attributing  to  an  applicant  spousal  revenues  that  are  not  actually  available  to  the  applicant,  but  nonetheless  determined  that  such  a  rule  would  serve  the  public  interest  as  an 
 administratively  efficient  safeguard  against  gaming  the  system,  we  are  not  persuaded  that  the  purpose  of  the  rule  is  undermined  whenever  it  is  applied  to  require  attribution  of  the  revenues  of  a  spouse  who 
 may  not  in  fact  provide  financial  support  or  otherwise  play  a  role  in  the  applicants  operations. 
 8.  For  the  same  reason,  we  are  not  persuaded  that  spousal  independence  such  as  is  claimed  here  should  be  deemed  a  unique  or  unusual  circumstance  warranting  grant  of  a  waiver  under  the  second 


 prong  of  the  Section  1.925(  b)(  3)  standard.  Again,  the  fact  that  the  Commission  specifically  contemplated 


 27  Id.  at  7262    101. 
 28  Id.  at    99-  101. 
 29  Id.  at    100. 
 30  Id.  at    101. 
 31  Id. 
 32  47  C.  F.  R.    1.  925(  b)(  3);  see  also  WAIT  Radio  v.  FCC,  418  F.  2d  1153,  1159  (D.  C.  Cir.  1969),  cert.  denied,  409 
 U.  S.  1027  (1972).  33 
 See  Attachment  to  Amended  Application  at  2. 
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 that  the  rule  would  require  attribution  of  a  spouses  revenues  even  with  respect  to  those  applicants  who  might  be  able  to  demonstrate  that  they  would  receive  no  benefit  from  those  revenues  precludes  a  finding 
 that  such  spousal  independence  is  the  type  of  unusual  or  unique  circumstance  that  justifies  a  waiver  of  the  rule.  Far  from  being  unique  or  unusual,  situations  such  as  the  one  presented  here  were  expressly  foreseen 
 when  the  Commission  adopted  the  spousal  affiliation  rule.  To  grant  MC/  LM  a  waiver  of  the  spousal  affiliation  rule  on  the  basis  of  this  showing  would  no  doubt  spur  a  considerable  number  of  similar 
 requests,  and  require  the  kind  of  case-  by-  case  review  of  showings  of  spousal  independence  that  the  Commission  intended  to  avoid  through  application  of  a  bright-  line  rule.  We  conclude,  therefore,  that 
 MC/  LM  has  not  shown  that  it  is  deserving  of  waiver  relief  under  either  prong  of  the  Section  1.925(  b)(  3)  waiver  standard.  34 


 9.  Conclusion.  Under  Section  1.2110(  c)(  5)(  iii)(  A)  of  the  Commissions  Rules,  MC/  LM  must  include  the  revenues  of  Donald  R.  DePriest  in  calculating  its  eligibility  for  a  bidding  credit  as  a 
 designated  entity.  The  record  does  not  provide  a  basis  for  granting  MC/  LM  a  waiver  of  the  rule  under  either  prong  of  the  Section  1.925  waiver  standard.  Accordingly,  MC/  LM  must  be  classified  as  a  small 
 business,  rather  than  a  very  small  business,  for  purposes  of  Auction  No.  61,  and  is  therefore  entitled  only  to  a  bidding  credit  of  25  percent. 


 10.  For  the  aforementioned  reasons,  IT  IS  ORDERED  that  application  FCC  File  No.  0002303355,  filed  on  September  7,  2005,  as  amended  August  21,  2006,  SHALL  BE  PROCESSED 
 consistent  with  this  Order  and  the  Commissions  Rules. 
 11.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Sections  1.2109,  1.2110  and  80.1252  of  the  Commissions  Rules,  47  C.  F.  R.    1.2109,  1.2110,  80.  1252,  Maritime  Communications/  Land 


 Mobile,  LLC  must  submit  a  payment  to  cover  the  difference  between  the  total  payments  Maritime  Communications/  Land  Mobile,  LLC  has  submitted  to  the  Commission,  which  equal  the  net  winning  bid 
 amount  as  calculated  with  a  very  small  business  bidding  credit,  and  the  net  winning  bid  amount  as  calculated  with  a  small  business  bidding  credit  within  ten  (10)  business  days  of  the  release  of  this  Order 
 or,  if  it  fails  to  pay  this  balance  within  ten  (10)  business  days  of  the  release  of  this  Order,  it  may  pay  the  remaining  balance  within  ten  (10)  business  days  after  the  payment  deadline,  provided  that  it  also  pays  a 
 late  fee  equal  to  five  percent  of  the  amount  due. 
 12.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Sections  1.3  and  1.925  of  the  Commissions  Rules,  47  C.  F.  R.    1.3,  1.925,  the  Request  for  Waiver  filed  by  Maritime  Communications/  Land  Mobile, 


 LLC  on  August  21,  2006,  IS  DENIED. 
 13.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Section  4(  i)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  and  Section  1.  45  of  the  Commissions  Rules,  47  C.  F.  R.    1.45,  the 


 34  We  need  not  address  at  length  MC/  LMs  argument  that  the  public  interest  would  be  served  by  grant  of  a  waiver 
 because  MC/  LM  is  a  woman-  owned  business.  Under  both  prongs  of  the  Section  1.925  waiver  standard,  a  finding  that  the  waiver  would  serve  the  public  interest  is  not  by  itself  sufficient  to  support  a  waiver.  There  must  be  an 


 additional  finding    either  a  finding  that  the  purpose  of  the  rule  would  not  be  served  or  would  be  frustrated,  under  the  first  prong,  or  a  finding  of  unique  or  unusual  circumstances,  under  the  second  prong    in  order  to  support  a 
 waiver,  and  as  we  discuss  supra,  we  are  unable  to  make  either  finding  here.  Moreover,  even  under  a  more  generalized  good  cause  waiver  standard,  e.  g.,  47  C.  F.  R.    1.3,  we  are  not  persuaded  that  a  waiver  should  be  granted 
 simply  because  the  requester  is  a  woman-  owned  business.  Cf.  Amendment  of  the  Commission's  Rules  to  Establish  New  Personal  Communications  Services,  Narrowband  PCS,  Second  Report  and  Order  and  Second  Further  Notice  of 
 Proposed  Rule  Making,  GEN  Docket  No.  90-  314  &  ET  Docket  No.  92-  100,  15  FCC  Rcd  10456,  10475    37  (2000)  (declining  to  apply  gender-  based  designated  entity  provisions  in  light  of  the  Supreme  Courts  Adarand  decision, 
 Adarand  Constructors,  Inc.  v.  Pea,  515  U.  S.  200,  115  S.  Ct.  2097,  132  L.  Ed.  2d  158  (1995)). 
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 Request  to  Place  on  Public  Notice,  Request  for  Leave  to  Supplement,  and  Request  to  Dismiss  filed  by  Warren  C.  Havens  on  September  12,  2006,  IS  DISMISSED. 
 14.  IT  IS  FURTHER  ORDERED  that,  pursuant  to  Section  4(  i)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  and  Section  1.  45  of  the  Commissions  Rules,  47  C.  F.  R.    1.45,  the 
 Opposition  to  Request  to  Place  on  Public  Notice,  Request  for  Leave  to  Supplement,  and  Request  to  Dismiss  filed  by  Maritime  Communications/  Land  Mobile,  LLC  on  September  26,  2006,  IS  DISMISSED 
 AS  MOOT. 
 15.  This  action  is  taken  under  delegated  authority  pursuant  to  Section  0.131  and  0.331  of  the  Commissions  Rules,  47  C.  F.  R.    0.131,  0.331. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Roger  S.  Noel  Chief,  Mobility  Division 
 Wireless  Telecommunications  Bureau 
7