25808 Federal Register / Vol. 61, No. 101 / Thursday, May 23, 1996 / Rules and Regulations

Independent PCS Corporation

(‘‘Georgia’’). By this Order, we hereby

resolve Georgia’s request. Specifically,

this Order reduces Georgia’s bid

withdrawal payment to the minimum

bid increment for License B–076

(Chattanooga, TN) in Round 37 of the

broadband Personal Communications

Services (PCS) C block auction, or

$569,898.

2. Background. On March 6, 1995,

Georgia filed a request for waiver of the

bid withdrawal payment provisions

applicable to the broadband PCS C

block auction. Under the Commission’s

rules, the amount of the bid withdrawal

payment is equal to the difference

between the withdrawn bid amount and

the amount of the subsequent winning

bid, if the subsequent winning bid is

lower. No withdrawal payment is

assessed if the subsequent winning bid

exceeds the withdrawn bid.

3. On May 3, 1996, the Commission

issued an Order partially waiving the

bid withdrawal payment provisions

applicable to the 900 MHz Specialized

Mobile Radio (SMR) and broadband PCS

C block auctions. The Order resolved

the waiver requests of two applicants

who submitted erroneous bids which

were later withdrawn. The Order also

delegated authority to resolve requests

for waiver of the bid withdrawal

payment provisions involving similar

factual circumstances to the Wireless

Telecommunications Bureau

(‘‘Bureau’’). The Order indicated that for

a party to be eligible for such a waiver,

it must submit a request for waiver

accompanied by a sworn declaration

attesting to the veracity of the factual

circumstances surrounding the

erroneous bid submission. In addition,

the Bureau was directed to consider

such requests on a case-by-case basis.

4. Georgia Waiver Request. In its

request, Georgia alleges that due to a

clerical or typographical error, it

submitted a bid of $119,720,000 for

License B–076 (Chattanooga, TN) in

Round 37 of the broadband PCS C block

auction. Georgia further alleges that the

error may have been due in part to a

‘‘flaw’’ in the Commission’s remote

bidding software. Georgia states that it

intended to submit the minimum

accepted bid for that round and license,

or $11,972,000. Georgia attempted to

withdraw its $119,972,000 bid during

the bid withdrawal period for Round 37

by contacting the FCC telephonically.

Due in part to technical problems with

the FCC’s wide-area network, Georgia

claims it was not able to withdraw its

erroneous bid until Round 38. The final

high bid on this market at the close of

the auction was $21,288,000.

Consequently, if the bid withdrawal

payment requirement were fully

enforced, Georgia would be subject to a

bid withdrawal payment of $73,824,000.

Affidavits by A.J. Paserella, and Robert

L. Swearingen, Jr., two of Georgia’s

authorized bidders, and Mr.

Swearingen’s secretary, Wanda Queen,

describe the events surrounding the

erroneous bid submission.

5. Georgia argues that imposition of

the bid withdrawal payment for its

erroneous bid would be unduly

burdensome and contrary to the public

interest. Georgia contends that there is

established case law governing mistaken

bids that prohibit the requirement of

any payment for bids resulting from

typographical or clerical errors. It

observes that Section 24.822 of the

Commission’s rules allows for the

correction of typographical errors on

applicants’ short-form applications (FCC

Form 175s) and that the Auctions

Division has granted waiver requests to

other C block applicants which sought

to correct clerical or typographical

errors. Finally, Georgia argues that the

most that the Commission should

require from bidders who submit

erroneous bids is the forfeiture of a

single activity rule waiver.

6. Decision. In the May 3, 1996, Order,

the Commission considered the same

issues presented here and indicated that

full application of the bid withdrawal

payment provisions in instances of

erroneous bids would cause an extreme

and unnecessary hardship on most

bidders. On the other hand, the

Commission also indicated that a full

waiver of these provisions could

threaten the economic efficiency of the

auction process. The Commission

therefore decided to reduce the bid

withdrawal payments substantially,

taking into consideration the round and

stage in which the mistaken bids were

submitted and withdrawn.

7. Among other things, the

Commission decided specifically that if

a mistaken bid is withdrawn in the same

round in which it was submitted, the

withdrawal payment should be the

greater of (a) the minimum bid

increment during the round in which it

was submitted or (b) the standard bid

withdrawal payment calculated as if the

bidder had made a bid at the minimum

accepted bid. The Commission applied

this calculation to reduce the bid

withdrawal payment of MAP Wireless,

L.L.C., who withdrew its erroneous bid

in the same round in which it was

submitted.

8. Under the facts presented, Georgia

has demonstrated that it submitted an

erroneous bid of $119,720,000 for

License B–076 (Chattanooga, TN) in

Round 37 of the broadband PCS C block

auction. Georgia has further

demonstrated that it attempted to

withdraw its erroneous bid in Round 37.

Georgia submitted a request for waiver

accompanied by sworn affidavits

attesting to the veracity of the factual

circumstances surrounding the

erroneous bid. We find that full

enforcement of the bid withdrawal

payment against Georgia in this instance

would not serve the purpose of this rule

and would be contrary to the public

interest. In accordance with the

Commission’s May 3 Order, we find that

a partial waiver of Section 24.704(a)(1)

of the Commission’s rules is warranted.

Specifically, because Georgia attempted

to withdraw its erroneous bid in the

same round in which it was submitted,

we will reduce Georgia’s required bid

withdrawal payment to the minimum

bid increment for License B–076 in

Round 37 of the broadband PCS C block

auction, or $569,898.

9. Accordingly, it is ordered that the

waiver request submitted by Georgia

Independent PCS Corporation is granted

to the extent indicated above.

10. It is further ordered that Georgia

Independent PCS Corporation is subject

to a bid withdrawal payment

requirement of $569,898.

Federal Communications Commission.

Michele C. Farquhar,

Chief, Wireless Telecommunications Bureau.

[FR Doc. 96–12945 Filed 5–22–96; 8:45 am]

BILLING CODE 6712–01–M

47 CFR Part 24

[DA 96–705]

Waiver of Audited Financial

Statements and General Application

Requirements for the Broadband

Personal Communications Services

AGENCY: Federal Communications

Commission.

ACTION: Final rule; waiver.

SUMMARY: Several parties have filed

requests for waiver of Sections 24.720 (f)

and (g) of the Commission’s rules with

respect to the long-form applications

(FCC Form 600) to be filed for

broadband Personal Communications

Service (PCS) C block licenses. The

parties argued that the requirement that

gross revenues and total assets figures

disclosed on the long-form applications

be evidenced by audited financial

statement is unduly burdensome. The

Commission granted the waivers and on

our own motion extended the waiver to

all broadband PCS C block applicants

subject to the requirements of Sections

24.720 (f) and (g) of the rules. In
Federal Register / Vol. 61, No. 101 / Thursday, May 23, 1996 / Rules and Regulations 25809

addition, on our own motion, we

waived certain ownership information

disclosure requirements of Section

24.813(a) (1), and (2) of the

Commission’s rules for all successful

broadband PCS C block bidders filing

long-form applications.

EFFECTIVE DATE: May 8, 1996.

FOR FURTHER INFORMATION CONTACT:

James Hedlund at 202–418–0660.

SUPPLEMENTARY INFORMATION: This

Order, adopted May 8, 1996 and

released May 8, 1996, is available for

inspection and copying during normal

business hours in the FCC Reference

Center, Room 239, 1919 M Street NW.,

Washington D.C. The complete text may

be purchased from the Commission’s

copy contractor, International

Transcription Services, Inc., 2100 M

Street NW., Suite 140, Washington D.C.

20037 (202) 857–3800.

Order

By the Chief, Wireless

Telecommunications Bureau:

1. Several parties have filed requests

for waiver of Sections 24.720 (f) and (g)

of the Commission’s rules with respect

to the long-form applications (FCC Form

600) to be filed for broadband Personal

Communications Service (PCS) C block

licenses. See, e.g., Covington and

Burling Request for Waiver on behalf of

unnamed investors in C block

applicants, filed January 26, 1996. The

following applicants (many of which are

no longer active bidders in the C block

auction) filed requests for waiver of

Section 24.720 (f) and (g) along with

their short-form applications (FCC Form

175) on November 6, 1995: Adilia M.

Aguilar; AirLink, L.L.C.; Airwave

Telecommunications, Inc.; BC&D

Partners II, L.L.C.; CHPCS, Inc.; B&P

PCS, Inc.; CDL Communications, Inc.;

Horsetooth Communications, Inc.;

Glenn Ishihara; Global Information

Technologies, Inc.; James

Communications Partners, GP; Lubbock

Radio Paging Service, Inc.; Mid-State

Systems, Inc.; New Dakota Investment

Trust; Overland Company, Inc.; PCS

Spectrum Partners, L.P.; R&S PCS, Inc.;

Reserve Telephone Company, Inc.;

Shawn Capistrano; SPD CableTel, Inc.;

South Central Communications

Corporation; Teltrust PCS of the

Intermountain States, Inc.; Teltrust PCS

of Utah, Inc.; USA Microcellular, Inc.;

Virginia PCS Alliance Consortium;

Whidbey Telephone Company; William

Ingram; Windkeeper Communications,

Inc.; and Wireless PCS, Inc. Generally,

the parties argue that the requirement

that gross revenues and total assets

figures disclosed on the long-form

applications be evidenced by audited

financial statements is unduly

burdensome. Pursuant to delegated

authority, we grant the waivers and on

our own motion extend this waiver to

all broadband PCS C block applicants

subject to the requirements of Sections

24.720 (f) and (g) of the Commission’s

rules. In addition, on our own motion,

we waive certain ownership information

disclosure requirements of Sections

24.813(a) (1) and (2) of the

Commission’s rules for all successful

broadband PCS C block bidders filing

long-form applications.

2. Section 24.709(c)(2)(i) of the

Commission’s rules provides that each

applicant submitting a long-form

application shall in an exhibit:

(i) Disclose separately and in the aggregate

the gross revenues and total assets, computed

in accordance with paragraphs (a) and (b) of

this section, for each of the following: the

applicant; the applicant’s affiliates; the

applicant’s control group members; the

applicant’s attributable investors; and

affiliates of its attributable investors.

Sections 24.720 (f) and (g) of the

Commission’s rules require that gross

revenues and total assets be evidenced

by audited financial statements under

most circumstances:

(f) Gross Revenues. Gross revenues

shall mean all income received by an

entity, whether earned or passive, before

any deductions are made for costs of

doing business (e.g., cost of goods sold),

as evidenced by audited financial

statements for the relevant number of

calendar years preceding January 1,

1994, or, if audited financial statements

were not prepared on a calendar-year

basis, for the most completed fiscal

years preceding the filing of the

applicant’s short-form application

(Form 175). For applications filed after

December 31, 1995, gross revenues shall

be evidenced by audited financial

statements for the preceding relevant

number of calendar or fiscal years. If an

entity was not in existence for all or part

of the relevant period, gross revenues

shall be evidenced by the audited

financial statements of the entity’s

predecessor-in-interest or, if there is no

identifiable predecessor-in-interest,

unaudited financial statements certified

by the applicant as accurate.

(g) Total assets. Total assets shall

mean the book value (except where

generally accepted accounting

principles (GAAP) require market

valuation) of the property owned by an

entity, whether real or personal, tangible

or intangible, as evidenced by the most

recent audited financial statements.

3. Although these rules do not require

applicants to file audited financial

statements with their long-form

applications, they do require gross

revenues and total assets reported on

the applications to be supported by

audited financial statements obtained by

the applicants. Several parties contend

that for small businesses with limited

resources, obtaining audited financial

statements would cause an extreme

financial hardship.

4. We agree that requiring broadband

PCS C block applicants with limited

resources to obtain audited financial

statements solely for the purpose of

supporting the long-form applications is

excessively burdensome. Thus, we

waive the audited financial statements

requirement of Sections 24.720 (f) and

(g) of the Commission’s rules. With

respect to the filing of long-form

applications, we believe that this waiver

will enable the Commission to continue

to obtain timely financial data while

providing applicants with some degree

of flexibility in their financial reporting

practices. We emphasize, however, that

applicants and their affiliates shall

continue to be required to certify the

accuracy of all gross revenue and total

assets figures submitted. We also reserve

the right to require licensees to provide

audited financial statements as required

by Sections 24.720 (f) and (g) of the

Commission’s rules at a later date.

5. Section 24.813(a) of the

Commission’s rules provides that

broadband PCS auction winners filing

the long-form application shall include

in an exhibit, inter alia:

(1) A list of any business five percent or

more of whose stock, warrants, options or

debt securities are owned by the applicant or

an officer, director, attributable stockholder

or key management personnel of the

applicant. This list must include a

description of each such business’s principal

business and a description of each such

business’s relationship to the applicant.

(2) A list of the party which holds a five

percent or more interest (or a ten percent

interest or more interest for institutional

investors as defined in Sec. 24.720(h)) in the

applicant, or an entity in which a five

percent or more interest (or a ten percent

interest or more interest for institutional

investors as defined in Sec. 24.720(h)) is held

by another party which holds a five percent

or more interest (or a ten percent interest or

more interest for institutional investors as

defined in Sec. 24.720(h)) in the applicant

(e.g., If company A owns 5% of Company B

(the applicant) and 5% of Company C, then

Companies A and C must be listed on

Company B’s application).

6. The former Private Radio Bureau,

acting on delegated authority, waived

some of the information disclosure

requirements of Section 24.813(a)(1) and

24.813(a)(2) for the short-form

applications (FCC Form 175s) filed for

the auction of the broadband PCS A and
25810 Federal Register / Vol. 61, No. 101 / Thursday, May 23, 1996 / Rules and Regulations

B block licenses. The Wireless

Telecommunications Bureau (‘‘Bureau’’)

later waived the same provisions for the

long-form applications for the auction of

the broadband PCS A and B block

licenses. These same provisions also

were waived for the short-form

applications filed for the auction of the

broadband PCS C block licenses. We

find that the public interest would be

served by waiving certain ownership

information disclosure requirements for

the long-form applications filed by the

block winning bidders. Specifically, our

rules require applicants to list in their

long-form applications all businesses in

which each attributable stockholder

owns at least five percent. This

requirement necessitates reporting of

interests in firms with no relation to the

licenses auctioned. For many

companies, particularly investment

firms with diverse holdings, compliance

with this requirement is extremely

burdensome, especially when

calculating indirect ownership interests

in outside firms. We believe that, for

purposes of long-form application

processing, requiring stockholders in

applicants to report all firms in which

they hold an interest of five percent or

more is overly burdensome.

7. The purpose of the PCS ownership

disclosure requirements is to allow the

Commission to determine who is the

real party in interest, to determine

compliance with the anti-collusion

rules, the applicable spectrum caps,

certain ownership restrictions such as

the multiple and cross ownership rules,

and the alien ownership restrictions. All

applicants already must certify that they

are in compliance with these

regulations, and the applicants

themselves should be able to supply the

bulk of the information required by

Section 24.813(a) without significant

burden.

8. Consequently, we waive the

information disclosure requirement of

Sections 24.813(a)(1) and 24.813(a)(2) of

the Commission’s rules with respect to

other, outside ownership interests of

attributable stockholders of applicants,

except that outside interests of five

percent or more in other land mobile

services (i.e., Commercial Mobile Radio

Service licensees or applicants or

Private Mobile Radio Service licensees

or applicants) shall be disclosed. Also,

all direct or indirect interests in the

applicant that amount to five percent or

more must be reported. All indirect

interests held in the applicant should be

computed in accordance with the

multiplier approach set forth in 47 CFR

§ 24.204(d)(viii). Institutional investors

need only disclose direct or indirect

interests of ten percent or more in the

applicant, and need to report all outside

business interests of five percent or

more in CMRS or PMRS businesses. We

reserve the right to ask applicants for

any additional information required by

Section 24.813 of the Commission’s

rules at a later date. All other long-form

reporting requirements will continue to

apply.

9. This Order is not subject to the

general notice and comment

requirement of the Administrative

Procedure Act, because it concerns

procedural rules, and we are relieving

applicants of an administrative burden

as opposed to imposing a reporting

burden on them. In addition, good cause

for the waiver is shown. The waiver will

expedite the Commission’s ability to

process broadband PCS C block

applications, thus expediting the

delivery of service to the public.

10. Accordingly, it is ordered That the

requirements of Sections 24.720(f) and

24.720(g) of the Commission’s rules, 47

CFR §§ 24.720(f) and 24.720(g), are

waived to the extent described here

with respect to long-form applications

(FCC Form 600) for broadband PCS C

block licenses.

11. It is further ordered That the

requirements of Sections 24.813(a)(1)

and 24.813(a)(2), 47 CFR §§ 24.813(a)(1)

and 24.813(a)(2), are waived to the

extent described here with respect to

long-form applications (FCC Form 600)

for broadband PCS C block licenses.

Federal Communications Commission.

Michele C. Farquhar,

Chief, Wireless Telecommunications Bureau.

[FR Doc. 96–12943 Filed 5–22–96; 8:45 am]

BILLING CODE 6712–01–M

47 CFR Parts 24 and 90

[FCC 96–203]

Waiver of Bid Withdrawal Payment

Provisions

AGENCY: Federal Communications

Commission.

ACTION: Final rule; waiver.

SUMMARY: The Commission has before it

requests for waiver of the rules

governing bid withdrawal payments

associated with spectrum auctions. On

December 18, 1995, ATA filed a request

for waiver of the bid withdrawal

payment applicable to the 900 MHz

SMR auction. On January 24, 1996,

MAP filed a request for waiver of the

bid withdrawal payment applicable to

the broadband PCS C block auction.

This Order reduces ATA’s bid

withdrawal payment to two times the

minimum bid increment for license 11P

in Round 9 of the 900 MHz SMR

auction, or $45,594. In addition, this

Order reduces MAP’s withdrawal

payment to the minimum bid increment

for license B–380 in Round 10 of the

broadband PCS C block auction, or

$206,400.

EFFECTIVE DATE: May 3, 1996.

FOR FURTHER INFORMATION CONTACT:

James Hedlund at 202–418–0660.

SUPPLEMENTARY INFORMATION: This

Order, adopted May 2, 1996, and

released May 3, 1996, is available for

inspection and copying during normal

business hours in the FCC Reference

Center, Room 239, 1919 M Street NW.,

Washington D.C. The complete text may

be purchased from the Commission’s

copy contractor, International

Transcription Service, Inc., 2100 M

Street, N.W., Suite 140, Washington

D.C. 20037 (202) 857–3800.

ORDER

I. Introduction

1. The Commission has before it

Requests for Waiver of its rules filed by

Atlanta Trunking Associates, Inc.

(‘‘ATA’’) and MAP Wireless, L.L.C

(‘‘MAP’’). Specifically, ATA and MAP

request waivers of the rules governing

bid withdrawal payments associated

with spectrum auctions. By this Order,

we hereby resolve ATA’s and MAP’s

Requests. Specifically, this Order

reduces ATA’s bid withdrawal payment

to two times the minimum bid

increment for license 11P in Round 9 of

the 900 MHz SMR auction, or $45,594.

In addition, this Order reduces MAP’s

withdrawal payment to the minimum

bid increment for license B–380 in

Round 10 of the broadband PCS C block

auction, or $206,400.

II. Background

2. Waiver Requests. On December 18,

1995, ATA filed a request for waiver of

the bid withdrawal payment applicable

to the 900 MHz SMR auction. Under our

rules, the amount of the bid withdrawal

payment is equal to the difference

between the withdrawn bid amount and

the amount of the subsequent winning

bid, if the subsequent winning bid is

lower. No withdrawal payment is

assessed if the subsequent winning bid

exceeds the withdrawn bid.

3. In its request, ATA alleges it

erroneously submitted a bid of

$125,025,000 for license 11P (Atlanta,

GA) in Round 9 of the 900 MHz SMR

auction. Pursuant to our auction

procedures, the minimum acceptable

bid for that license in Round 9 was

$121,000. According to ATA, it had

intended to submit a bid of $125,025,

but inadvertently added three extra