[Federal Register Volume 61, Number 101 (Thursday, May 23, 1996)]
[Rules and Regulations]
[Pages 25807-25808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12945]



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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 24

[DA 96-706]


Waiver of Bid Withdrawal Payment Provisions

AGENCY: Federal Communications Commission.

ACTION: Final rule; waiver.

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SUMMARY: On March 6, 1995, Georgia Independent PCS Corporation 
(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to the difference between the withdrawn bid amount and the amount of 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the withdrawn bid. The 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.

EFFECTIVE DATE: May 6, 1996.

FOR FURTHER INFORMATION CONTACT:
James Hedlund at 202-418-0660.

SUPPLEMENTARY INFORMATION: This Order, adopted May 6, 1996 and released 
May 6, 1996, is available for inspection and copying during normal 
business hours in the FCC Reference Center, Room 239, 1919 M Street 
NW., Washington, DC. The complete text may be purchased from the 
Commission's copy contractor, International Transcription Services, 
Inc., 2100 M Street NW., Suite 140, Washington, DC 20037 (202) 857-
3800.

Order

    1. The Wireless Telecommunications Bureau has before it a Request 
for Waiver of Section 24.704(a)(1) of the Commission's rules filed by 
Georgia

[[Page 25808]]

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