J. Dominic Monahan, Esq.
Luvaas, Cobb, Richards & Fraser, P.C.
777 High Street, Suite 300
Eugene, Oregon 97440-2787



						Re:	ROB ALLEN HAUSER
							Request for Refund of Upfront Payment
							For MX Group FM 130 in Closed Broadcast 
							Auction No. 25


Dear Mr. Monahan:

This letter is in response to your Request for Refund of Upfront Payment ("Request") filed April 
20, 2000, on behalf of Mr. Rob Allen Hauser, the winning bidder in MX Group FM 130 in the Closed 
Broadcast Auction No. 25. For the reasons set forth below, we deny your Request.

The Commission received three mutually exclusive long-form applications for construction 
permits for MX Group FM 130 - FM Channel 249A at Pullman, Washington. Those applications were 
filed by Radio Palouse, Inc. ("Radio Palouse"), Lamonica Media, LLC ("Lamonica Media"), and Mr. 
Hauser. The Mass Media Bureau and the Wireless Telecommunications Bureau issued a Public Notice 
on July 9, 1999 announcing that these applicants would be eligible to participate in an auction to begin 
on September 28, 1999. 

The July 9th Public Notice stated that, in order to participate in the auction, all applicants would 
have to submit a FCC Form 175 (short-form application) by the deadline of August 20, 1999. The 
Broadcast First Report & Order stated that if only one acceptable short-form application was received 
for a particular construction permit, the auction would be cancelled for that construction permit. The 
July 9th Public Notice also stated that "if an applicant were to submit a short-form application but fail to 
timely tender an upfront payment, it would retain its place in the MX Group but, having purchased no 
bidding eligibility, would not be eligible to bid." It further stated that if " . . . two or more parties file 
short-form applications in their MX Group, but only one submits an upfront payment, mutual exclusivity 
would exist for auction purposes (since multiple short-form applications are tendered) and, in such case, 
the party making its upfront payment is not entitled to both a refund and the grant of a construction 
permit." 

In this case, short-form applications were submitted by Mr. Hauser, Radio Palouse, and 
Lamonica Media. Subsequently, the auction staff issued a Public Notice on September 3, 1999 
accepting for filing Mr. Hauser's short-form application and listing as incomplete the short-form 
applications of Radio Palouse and Lamonica Media. The September 3rd Public Notice stated that 
applicants with incomplete short-form applications could become qualified to bid in the auction only if 
they made the required upfront payment by 6:00 p.m. on Monday September 13, 1999, and resubmitted 
complete applications by 5:30 p.m. on September 14, 1999. Radio Palouse did not resubmit its short-
form application before the deadline. Lamonica Media did resubmit its short-form application before 
the deadline. Thus for MX Group FM 130, the Commission received two acceptable short-form 
applications, one from Mr. Hauser and the other from Lamonica Media. However, Lamonica Media 
failed to submit an upfront payment and therefore, Lamonica Media was not qualified to bid in the 
auction. 

In the first round of bidding for Auction No. 25, Mr. Hauser placed the minimum opening bid 
equal to his upfront payment ($25,000) on FM Channel 249A, Pullman, Washington. As the highest and 
only bidder in MX Group FM 130, Mr. Hauser was awarded the license. In his Request, Mr. Hauser 
argues that because he was the only qualified bidder for the construction permit for Channel 249A at 
Pullman, Washington, the Commission was precluded from assigning the permit through competitive 
bidding. 

Section 309(j) of the Communications Act requires the Commission to assign any initial license 
or construction permit through an auction when mutually exclusive short-form applications are accepted 
for filing. In other words, if the Commission has received more than one acceptable short-form 
application for the same license or construction permit, the statute requires that the Commission conduct 
an auction. The Commission received two acceptable, mutually exclusive short-form applications for a 
construction permit for channel 249A at Pullman, Washington: one from Mr. Hauser and one from 
Lamonica Media. In light of these competing short-form applications for the same license, the 
Commission was required to assign the license through an auction. The factual circumstances present 
in this case were clearly addressed in the July 9th Public Notice. Because both Mr. Hauser and Lamonica 
Media submitted acceptable short-form applications, mutual exclusivity existed, regardless of the fact 
that Lamonica Media did not purchase bidding eligibility by timely tendering an upfront payment. 

Mr. Hauser argues that a statement in the Broadcast MO&O supports his Request. Specifically, 
Mr. Hauser relies on the statement that the Commission would ". . .conduct competitive bidding for any 
broadcast permit only where competing applicants have submitted acceptable short-form applications for 
any broadcast permit and have been found qualified to bid." This statement is taken out of context. In 
the Broadcast MO&O, the Commission considered and rejected a suggestion to adopt a "post-auction" 
evidentiary procedure to determine whether a winning bidder was the sole qualified applicant and 
therefore entitled to a grant of license without remittance of its winning bid. In the context of rejecting 
this "post-auction" procedure, the Commission stated that because all prospective bidders were found 
qualified to bid before being allowed to participate in an auction it was unnecessary and redundant to 
adopt a "post-auction" procedure. In this sentence, the Commission was not addressing the 
determination of mutual exclusivity because mutual exclusivity is a "pre-auction" determination. Thus, 
the cited language is not useful in a discussion of mutual exclusivity, and does not alter the 
Commission's statutory obligation to use competitive bidding.

Mr. Hauser's Request is an untimely attempt to revise the rules after the auction has been 
conducted. The July 9th Public Notice anticipated and clearly addressed the factual circumstances that 
developed for MX Group FM 130. All of the bidders in Auction No. 25, including Mr. Hauser, had 
notice of the auction procedures that would apply. Because acceptable, mutually exclusive short-form 
applications for FM Channel 249A at Pullman, Washington were filed, Mr. Hauser has failed to establish 
that a refund would be appropriate.

Accordingly, IT IS ORDERED, that the Request for Refund of Upfront Payment filed by Rob 
Allen Hauser, IS DENIED.


					Sincerely,



					Margaret W. Wiener
					Chief, Auctions and Industry Analysis Division 
					Wireless Telecommunications Bureau
 Closed Broadcast Auction, Notice and Filing Requirements for Auction of AM, FM, TV, LPTV, and FM and TV 
Translator Construction Permits Scheduled for September 28, 1999, Minimum Opening Bids and Other Procedural 
Issues, Public Notice, 14 FCC Rcd 10632 (1999) ("July 9th Public Notice").

 Id. at 10633, 10692.

 Id. There is no application fee required when filing a FCC Form 175. Auction of AM, FM, TV, LPTV, and FM 
and TV Translator Construction Permits Scheduled for September 28, 1999, Minimum Opening Bids and Other 
Procedural Issues, Public Notice, 64 Fed. Reg. 39995, 39998, 33 (1999).

 Implementation of Section 309 (j) of the Communications Act-Competitive Bidding for Commercial Broadcast 
and Instructional Television Fixed Service Licenses, First Report and Order, 13 FCC Rcd 15920, 15980, 154. 
(1998) ("Broadcast First Report & Order").

 July 9th Public Notice, 14 FCC Rcd at 10647.

 Id.

 Closed Broadcast Auction, Status of Applications to Participate in the Auction, Public Notice, 14 FCC Rcd 14113 
(1999) ("September 3rd Public Notice").

 Closed Broadcast Auction, 224 Qualified Bidders, Public Notice, DA 99-1912, Attachment C (1999) ("September 
17th Public Notice").

 Mr. Hauser concedes in his Request that Lamonica Media "did submit a curative amendment." See Request for 
Refund of Upfront Payment filed on Apr. 20, 2000, at 1-2 ("Request").

 September 17th Public Notice, DA 99-1912, Attachment C. 

 Mr. Hauser was not required to bid. Had he chosen not to bid, his upfront payment would have been returned but 
no construction permit would have been issued. See July 9th Public Notice, 14 FCC Rcd at 10647.

 Request at 2 (citing Matter of Implementation of Section 309(j) of the Communications Act - Competitive 
Bidding for Commercial Broadcast and Instructional Television Fixed Service Licenses, Memorandum Opinion and 
Order, 14 FCC Rcd at 8724, 8751, 54 (1999) ("Broadcast MO&O")).

 Section 309(j)(1) mandates the use of competitive bidding if "mutually exclusive applications are accepted for 
any initial license or construction permit." 47 U.S.C.  309(j)(1); see also Benkelman Telephone Company v. 
Federal Communications Commission, 220 F. 3d 601 (2000) (rejecting an argument that the Commission's 
procedures artificially created artificial or phantom mutual exclusivity). 

 47 U.S.C.  309(j)(1); see also Broadcast First Report and Order, 13 FCC Rcd at 15974, 15980, 142, 154; 
Broadcast MO&O, 14 FCC Rcd at 8751, 54-55 n. 77, 78; 47 C.F.R.  73.5002(a)(b); 47 U.S.C.  309(j)(1); July 
9th Public Notice, 14 FCC Rcd at 10646-10648. The September 3rd Public Notice listed applicants who were 
disqualified from participation in Auction No. 25 because mutually exclusive applications were not filed for their 
respective MX Groups. September 3rd Public Notice, 14 FCC Rcd at 14114, 14151-14153 (1999); see also KDTV, 
DA 00-627, 15 FCC Rcd at 5570 (2000) (finding that Univision's application was the only acceptable short-form 
application on file, and in the absence of mutual exclusivity, should not have been sent to auction).

 Upfront payments are not application fees nor are they attributed to specific licenses, but instead they are 
translated to bidding units to define a bidder's maximum bidding eligibility in any single round of bidding. July 9th 
Public Notice, 14 FCC Rcd at 10648.

 Broadcast MO&O, 14 FCC Rcd at 8751, 54.

 Id. at 8750-8752, 52-56.

 Id.

 See 47 C.F.R.  1.401-1.430; see also Closed Broadcast Auctions Scheduled for September 28, 1999; Comment 
Sought on Minimum Opening Bids and Other Auction Procedures, Public Notice, 14 FCC Rcd at 8189, 8198 (1999) 
("May 17th Public Notice").

 See July 9th Public Notice, 14 FCC Rcd at 10646-10648.

 Id. at 10632; May 17th Public Notice, 14 FCC Rcd at 8189.

 

 
 
J.Dominic Monahan, Esq.
January 19, 2001





			

Federal Communications Commission
Washington, D.C. 20554

	 January 19, 2001
	DA 01-144