Before the
Federal Communications Commission
Washington, D.C. 20554


In the Matter of

Bell Mountain Communications, Inc. 
Request for Waiver of   
Upfront Payment Deadline in
Auction No. 30


 
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MEMORANDUM OPINION AND ORDER

   Adopted:  March 1, 2001	Released:  March 2, 2001 


By the Deputy Chief, Wireless Telecommunications Bureau:

I. INTRODUCTION
1. We have before us a petition for reconsideration filed by Bell Mountain Communications, 
Inc. ("Bell Mountain") on May 11, 2000.   Bell Mountain, an Auction No. 30 applicant, seeks 
reconsideration of a decision by the Auctions and Industry Analysis Division ("Division") denying its 
request for waiver of the Commission's upfront payment deadline.   Specifically, Bell Mountain requests 
that the Wireless Telecommunications Bureau ("Bureau") waive the upfront payment deadline of March 27, 
2000.  As explained fully below, we deny Bell Mountain's petition.  We find that the Division properly 
denied Bell Mountain's waiver request, and accordingly, there is no basis for reconsideration.

II. BACKGROUND
2. On January 21, 2000, the Commission released a Public Notice notifying applicants for 
Auction No. 30  that the deadline for submission of upfront payments was 6:00 p.m. (EST) on March 27, 
2000.   The Commission also warned applicants "[f]ailure to deliver the upfront payment by the March 
27, 2000 deadline will result in dismissal of the application and disqualification from participation in the 
auction."   On the upfront payment deadline date, Bell Mountain authorized its bank, Riggs & Company 
("Riggs"), to transfer funds from the personal account of its president to the Commission's account at 
Mellon Bank.   However, Bell Mountain failed to provide Riggs with complete wire transfer 
instructions.   Further, Riggs failed to follow its own internal procedures for processing Bell Mountain's 
wire transfer instructions.   Bell Mountain failed to meet the Commission's March 27, 2000 deadline for 
submission of upfront payments.   Bell Mountain subsequently filed a request for waiver of the upfront 
payment deadline alleging that a failure on the part of Riggs constituted adequate grounds for waiver.   
The Division denied Bell Mountain's request.  


III. DISCUSSION
3. As we explain below, Bell Mountain has not demonstrated that grant of its petition for 
reconsideration would be appropriate.   In its Waiver Request and its subsequent Petition, Bell Mountain 
generally contends waiver would be appropriate because its failure to timely submit its upfront payment 
was the direct result of an administrative error on the part of Riggs in the processing of its wire transfer 
request.  In its Petition, Bell Mountain also argues that the Division's Letter Ruling is based on several 
factual misunderstandings that are incorrect and crucial to the Division's decision.   Finally, Bell 
Mountain contends that the facts in its case are identical to those associated with Auction No. 25 
applicant Ramona Lee Hayes-Bell  and Auction No. 35 applicant MPCS.  

4. In both its Waiver Request and subsequent Petition, Bell Mountain fails to establish that: (i) the 
underlying purpose of the rule would not be served, or would be frustrated by its application in this 
particular case, and that a grant of the requested waiver would be in the public interest; or (ii) that the 
unique or unusual factual circumstances of this particular case render application of the rule inequitable, 
unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative.  

5. Bell Mountain contends that unique and unusual circumstances exist in this case, because it is 
rare that a well-recognized, large commercial bank would fail to process a wire transfer.  Bell Mountain 
contends that Riggs failed to follow its own internal procedures for processing a client's wire transfer 
instructions.  Further, Bell Mountain argues that Rigg's failure was, in turn, the cause of its failure to 
meet the upfront payment deadline.   The circumstances presented by Bell Mountain do not demonstrate 
grounds for a waiver.  Where, as here, an applicant initiates the wire transfer on the day the upfront 
payment is due, fails to provide complete wire transfer instructions to its bank, and fails to confirm 
receipt of the wire transfer through its bank, the applicant has failed to exercise reasonable diligence.  As 
prior decisions in this area demonstrate, upon occasion an applicant will miss an auction deadline where 
it fails to allow sufficient time to react to unforeseen last minute difficulties.   Accordingly, we concur 
with the Division that grant of a waiver is not warranted and would not be in the public interest.  
Additionally, as we explain below, Bell Mountain has failed to demonstrate a basis for reconsideration. 

6. In its Petition, Bell Mountain alleges that the Division made several factual mistakes in the 
Letter Ruling.   Based upon the record before us, Bell Mountain fails to demonstrate any factual errors in 
the Division's Letter Ruling meriting reconsideration.  Bell Mountain's first contention is that the Letter 
Ruling is incorrect with respect to the amount of time required to implement wiring instructions.  In 
particular, Bell Mountain asserts that the Division incorrectly assumed that wire transfers could not 
reasonably be initiated and executed on the same day.   Bell Mountain takes out of context the 
Division's ruling.   Although it is possible for wire transfers to be initiated and executed on the same 
day, the processing difficulties experienced by Riggs indicate that upon occasion a successful wire transfer 
may reasonably require longer than one full day.   In fact, the First Riggs Letter recognizes that "with a 
busy operations area" errors can occur to delay same day transfers.   With respect to the Commission's 
auction deadlines, the Commission has repeatedly highlighted the importance of planning ahead to account 
for unforeseen last-minute difficulties.   All applicants in Auction No. 30, including Bell Mountain, were 
warned to avoid untimely payments by discussing arrangements with their banker several days before they 
plan to make a wire transfer and to allow sufficient time for the transfer to be initiated and completed before 
the deadline.   Bell Mountain did not provide itself with adequate time to complete the transfer.   Bell 
Mountain initiated processing of the wire payment the day of the payment deadline, leaving little time for 
Bell Mountain to correct any errors or to reasonably react to unexpected contingencies that periodically 
arise during the wire transfer process.  

7. Bell Mountain's second contention is that the Division erred in the Letter Ruling by 
concluding that Bell Mountain was responsible for not meeting the upfront payment deadline, in part, 
because it did not confirm receipt of the wire transfer with Mellon Bank.   We concur with the 
Division's conclusion.  In the First Riggs Letter, Riggs only states that the wire transfer request was 
never received by its internal center responsible for such requests and that it made an error in not 
processing the wire transfer request.   Notably, Bell Mountain does not allege that it confirmed receipt of 
the wire transfer with Mellon Bank through Riggs.  Instead, Bell Mountain merely confirmed that Riggs 
had received the wire instructions and would ultimately forward payment to Mellon Bank.   All 
applicants, including Bell Mountain, were cautioned to "confirm receipt of their upfront payments at 
Mellon Bank by contacting their sending financial institution."   Had Bell Mountain contacted Riggs to 
confirm that Riggs had actually forwarded the payment to Mellon Bank, it would have received notice 
that the wire transfer had not been received by Mellon Bank.  Upon receipt of that information, Bell 
Mountain through consultation with Riggs may have had a reasonable opportunity to discover and correct 
the problems associated with this wire transfer. 

8. Bell Mountain's third contention is that, in the Letter Ruling, the Division incorrectly noted 
that the lack of an ABA routing number in its facsimile wire instructions was an error that delayed wire 
transfer.   We disagree.  Riggs' statement that the omission of the ABA routing number "alone would not 
necessarily void the request,"  does not preclude the possibility that lack of ABA routing numbers will 
delay or void the request.  ABA routing numbers identify the specific bank to receive the electronic funds 
and ensure that the transferred funds are directed to the location of the receiving bank.   Without the use 
of ABA routing numbers in wire transfer instructions, the possibility of an error in the transmission 
process is, at a minimum, significantly increased.  Thus, the Commission specifically directs applicants 
to include ABA routing numbers in wire transfer requests.   In addition to the examples cited above, Bell 
Mountain's failure to comply with this specific instruction demonstrates that it did not exercise due 
diligence in this matter. 

9. Bell Mountain's fourth contention is that the Division erred in its conclusion that Riggs did 
not explain that it had made a mistake in the wiring process.   We disagree.  In the First Riggs letter, 
included in Bell Mountain's Waiver Request, Riggs states "please accept [our] apology for the recent 
error, on our part" and acknowledges responsibility for Bell Mountain's failure to meet the payment 
deadline.  The Division noted in its Letter Ruling that Riggs did "not state that a mistake was made in 
executing the Applicant's specific wire instructions."  After issuance of the Letter Ruling, Bell Mountain 
provided the Division with the Second Riggs Letter wherein Riggs acknowledges its failure to transmit 
internally the wire transfer before the payment deadline.  However, Riggs' error is not similar to, and 
does not rise to the level of, the errors made in previous instances where a partial waiver was granted.   
Further, Riggs' error does not erase or diminish the significance of Bell Mountain's failures.  Thus, 
Riggs' error does not relieve Bell Mountain of its responsibility to exercise reasonable diligence in the 
wire transfer process.

10.  Finally, Bell Mountain further contends that the facts of its case are on point with the 
Bureau's decisions in Hayes-Bell and MPCS, and accordingly, that a waiver should be granted.   We 
disagree.  In Hayes-Bell, the Bureau reinstated the application of Hayes-Bell after she attributed her delay 
in meeting the upfront payment deadline to an error by her bank, Nevada State Bank.   In Hayes-Bell, the 
applicant presented correct and complete wire instructions to her bank four days before the upfront 
payment deadline.  In contrast, Bell Mountain presented incomplete wire instructions on the day of the 
upfront payment deadline.  In MPCS, the Division granted a waiver of the Auction No. 35 upfront 
payment deadline after the applicant demonstrated that the failure of its bank to execute MPCS's wire 
transfer instructions in a timely manner resulted in the bank's failure to transfer funds to the Commission 
before the deadline despite the due diligence exercised by MPCS to overcome the error on the part of its 
bank.   In MPCS, the applicant discussed and arranged for the wire transfer with its bank several days 
before it planned to make the wire transfer.   In the instant case, however, Bell Mountain failed to perform 
sufficient due diligence before the submission of its payment to overcome errors it made during the 
transaction.  Bell Mountain failed to discuss and arrange for the wire transfer with Riggs several days before 
it planned to make the wire transfer.   Additionally, Bell Mountain failed to provide complete wire transfer 



instructions.   Unlike MPCS, Bell Mountain was not attentive to the wire transfer process.   Thus, on the 
facts presented here, Bell Mountain did not exercise reasonable diligence as it failed to check the processing 
of the wire transfer by Riggs and also failed to confirm receipt of the wire transfer by Mellon Bank.  
Accordingly, we deny Bell Mountain's Petition and affirm the decision of the Division to deny Bell 
Mountain's waiver request. 

IV. CONCLUSION
11. Accordingly, IT IS ORDERED, pursuant to sections 4(i) and 309(d)(2) of the 
Communications Act of 1934, as amended, 47 U.S.C.  154(i), 309(d)(2), and Section 0.331 of the 
Commission's rules, 47 C.F.R.  0.331, the Petition for Reconsideration filed by Bell Mountain 
Communications, Inc. on May 11, 2000, IS HEREBY DENIED.  



						FEDERAL COMMUNICATIONS COMMISSION




						Kathleen O'Brien Ham,
Deputy Chief, Wireless Telecommunications Bureau
     Petition for Reconsideration of Bell Mountain Communications, Inc., filed May 11, 2000 ("Petition"); Supplement 
to Petition for Reconsideration, filed January 3, 2001 ("Supplement") (includes arguments based upon a decision 
issued after the Petition was filed).  
  See Letter from Mark Bollinger, Acting Chief, Auctions and Industry Analysis Division, Wireless 
Telecommunications Bureau, to Messrs. Thomas Gutierrez and Todd Slamowitz, Lukas Nace Gutierrez & Sachs, 
Counsel for Bell Mountain Communications, Inc., 15 FCC Rcd 6217 (2000) ("Letter Ruling"); see also Letter to 
Margaret Wiener, Chief, Legal Branch, Auctions and Industry Analysis Division, Wireless Telecommunications 
Bureau, from Messrs. Thomas Gutierrez and Todd Slamowitz, Counsel for Bell Mountain Communications, Inc., Re: 
Waiver of Upfront Payment Deadline (April 5, 2000) ("Waiver Request").
   Auction No. 30 began on April 12, 2000 and closed in round 73 on May 8, 2000.  "39 GHz Band Auction Closes; 
Winning Bidders of 2,173 Licenses Announced," Public Notice, DA 00-1035, (rel. May 10, 2000). 

    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, 15 FCC Rcd 850 (2000) ("Auction No. 30 
Public Notice").
    Auction No. 30 Public Notice at Section III.D.
    Waiver Request at 1. 
    Id. at 1-2. 
    Id. at 2.
    See "Auction of Licenses for Fixed Point-to-Point Microwave Service in the 38.6 to 40.0 GHz (39 GHz) Band; 
35 Qualified Bidders," Public Notice, 15 FCC Rcd 5748, 5769 (2000) ("Auction No. 30 Qualified Bidders Public 
Notice").
    Waiver Request at 1.
    Letter Ruling at 1.
    Since Bell Mountain's Petition does not rely on facts that have occurred or circumstances that have changed 
since its Waiver Request, the appropriate standard for review is 47 C.F.R  1.106(d)(2).  Bell Mountain must cite 
findings of fact and/or conclusions of law it believes to be erroneous and must also state with particularity the 
respects in which it believes such findings and conclusions should be changed.  47 C.F.R  1.106(d)(2).      
    Petition at 4 (citing Letter to Mark Bollinger, Acting Chief, Auctions and Industry Analysis Division, Wireless 
Telecommunications Bureau, from Sandra J. Haller, Managing Director, Riggs & Company, dated April 12, 2000 
("Second Riggs Letter"), appended as an attachment to Petition).  
    See Application of Ramona Lee Hayes-Bell for A New FM Construction Permit on Channel 236A at Pahrump, 
Nevada, Memorandum Opinion and Order, 15 FCC Rcd 14729 (2000) ("Hayes-Bell").
    See Letter from Margaret W. Wiener, Chief, Auctions and Industry Analysis Division, Wireless 
Telecommunications Bureau, to Lynn R. Charytan, Wilmer Cutler & Pickering, Counsel for MPCS Wireless, Inc., 
DA 00-2760 (rel. December 12, 2000) ("MPCS").
    47 C.F.R.  1.925.
    Letter to Mr. Kent Foster from Sandra J. Haller, Managing Director, Riggs & Company, dated April 4, 2000 
("First Riggs Letter"), appended as an attachment to the Waiver Request.  In the First Riggs Letter, Riggs explains 
to the Applicant's president:  "We immediately faxed your wire instructions to our DC Operations Center.  
However, they either never received the instructions or they were inadvertently [sic] mixed in with other faxes.  
Unfortunately, with a busy operations area, this can happen on occasion."  
  See, e.g., Letter from Mark Bollinger, Acting Chief, Auctions and Industry Analysis Division, Wireless 
Telecommunications Bureau, to Mr. Jason Bunch, 15 FCC Rcd 6069 (2000) (applicant initiated processing of the 
wire payment the day of the payment deadline, leaving little time to become familiar with the requirements of the 
process and react to unforeseen last-minute difficulties); Letter from Amy J. Zoslov, Chief, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, to James A. Rech, Counsel for Landmark Site 
Development, LLC, 14 FCC Rcd 6479 (1999) (noting that the Commission cautioned Auction No. 23 applicants to 
discuss arrangements with their banker several days before they planed to make the wire transfer); Letter from Amy 
J. Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, to John D. 
Szuchan, Counsel for On Target, L.L.C., 14 FCC Rcd 6375 (1999) (request for waiver of the FCC Form 175 filing 
deadline); Letter from Amy J. Zoslov, Chief, Auctions and Industry Analysis Division, Wireless 
Telecommunications Bureau, to Cary S. Tepper, Booth Freret Imlay & Tepper, P.C., and Larry D. Jones, DA 99-
1903 (September 17, 1999) (noting the importance of planning ahead to account for unforeseen last-minute 
difficulties).    
    Petition at 4-6.
    Riggs states that it "processes hundreds of wire transfers each week, and a domestic wire transfer request takes 
no longer than a few hours."  Letter to Mark Bollinger, Acting Chief, Auctions and Industry Analysis Division, 
Wireless Telecommunications Bureau, from Sandra J. Haller, Managing Director, Riggs & Company, dated April 
12, 2000 ("Second Riggs Letter"), appended as an attachment to Petition.
    See Letter Ruling at 2-3 ("The [First Riggs Letter] further indicates that a successful wire transfer may reasonably 
require longer than one full day").
    First Riggs Letter, appended as an attachment to the Waiver Request. 
    See n.17, supra.
    See n.18, supra.  
    Auction No. 30 Public Notice at Section III.D.1; see also "Auction Notice and Filing Requirements for 528 
Multilateration Licenses; Scheduled for December 15, 1999; Minimum Opening Bids and Other Procedural 
Issues," Public Notice, 13 FCC Rcd 18583 18596 (1998) (warning Auction No. 21 applicants to avoid untimely 
payments by making arrangements early before planning wire transfers); "Auction Notice and Filing Requirements 
for 168 Local Multipoint Distribution Service Spectrum, Scheduled for April 27, 1999; Minimum Opening Bids 
and Other Procedural Issues," Public Notice, 14 FCC Rcd 2191, 2204 (1998) (warning Auction No. 23 applicants 
to avoid untimely payments by making arrangements early before planning wire transfers); "Auction Notice and 
Filing Requirements for 2,499 Paging Upper Band Licenses; Scheduled for February 24, 2000; Minimum Opening 
Bids and Other Procedural Issues," Public Notice, DA 99-1591 at Section 3.C.1 (rel. August 12, 1999) (warning 
Auction No. 26 applicants to avoid untimely payments by making arrangements early before planning wire transfers). 
    Letter Ruling at 2.  
    Petition at 4-6.
    First Riggs Letter.
    Petition at 4-6.
    Auction No. 30 Public Notice at Section III.D.1.
    Petition at 5.
    Second Riggs Letter at 1. 
    See 12 C.F.R. Part 229, Appendix A.
    See Auction No. 30 Public Notice at Section III.D.1 (listing the ABA routing number for Mellon Bank, which 
receives wire transfers for the Commission).
    Petition at 5.
    Letter Ruling at 3.
    See, e.g., Hayes-Bell, 15 FCC Rcd at 14732-33,  8-9.
    Waiver Request at 2;  Supplement at 1.
    Hayes-Bell, 15 FCC Rcd at 14730 n.5.  
    MPCS at 3-4.
    Id. at 3.  
    See Waiver Request at 1-2.
    Second Riggs Letter at 1 ("Although the ABA number was not included in the wire transfer instructions 
forwarded to Riggs . . .").
    MPCS performed sufficient due diligence to overcome any error in the submission of its payment.  MPCS 
exercised reasonable diligence in checking on the status of the wire transfer to Mellon Bank.  When Chase 
suspended processing of the wire transfer, MPCS, to its credit, persuaded Chase to continue processing the 
transaction before its upfront payment deadline.  Despite MPCS's notable attention to the details of the wire 
transfer, and its successful intervention when a Chase supervisor instructed the branch manager to suspend the wire 
transfer, MPCS's effort to make timely payment was foiled at the last minute.  In addition, MPCS confirmed 
receipt of the transfer and notified the Auctions and Industry Analysis Division as soon as it discovered that its 
payment was not timely.  MPCS at 3.
 
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