*Pages 1--4 from Microsoft Word - 5161.doc* Federal Communications Commission DA 00- 2674 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of LMDS COMMUNICATIONS, INC. Request For Waiver of Sections 1.2109( a) and (c), 1.2104( g) and 101.1105( b) of the Commission’s Rules Regarding BTA117, BTA122, BTA203, BTA215, BTA218, BTA287, BTA317, BTA328, BTA330, BTA335, BTA375 and BTA416 ) ) ) ) ) ) ) ) ) FCC File No. 0000013644 ORDER ON RECONSIDERATION Adopted: November 28, 2000 Released: November 30, 2000 By the Deputy Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. We have before us a Petition for Reconsideration filed by LMDS Communications, Inc. (LMDSC) on April 17, 2000. 1 LMDSC requests that the Public Safety and Private Wireless Division (Division) reconsider its March 10, 2000 decision to deny a waiver in the above- captioned proceeding. 2 For the reasons discussed below, we deny LMDSC’s request. II. BACKGROUND 2. On May 12, 1999, at the close of Auction No. 23, LMDSC was the high bidder for twelve Local Multipoint Distribution Service (LMDS) licenses totaling $990,550.00. 3 Prior to the auction, on April 12, 1999, LMDSC submitted an upfront payment of $125,000. 00. Following the auction, on May 26, 1999, LMDSC submitted a down payment of $73,110.00. On August 9, 1999, the Wireless Telecommunications Bureau (Bureau) conditionally granted applications for 127 LMDS licenses, including the twelve licenses for which LMDSC was the high bidder. 4 These license grants were 1 LMDS Communications, Inc. Petition for Reconsideration (filed April 17, 2000) (Petition). 2 LMDS Communications, Inc. Request for Waiver of Sections 1.2109( a) and (c), 1.2104( g) and 101. 1105( b) of the Commission’s Rules Regarding BTA117, BTA 122, BTA203, BTA215, BTA218, BTA287, BTA317, BTA328, BTA330, BTA335, BTA375 and BTA416, Order, 15 FCC Rcd 8618 (WTB PSPWD 2000) (Order). 3 LMDSC was the high bidder on licenses for the following markets: BTA117, Du Bois- Clearfield, PA; BTA122, East Liverpool- Salem OH; BTA203, Indiana, PA; BTA215, Jamestown- Dunkirk, NY- Warren, PA; BTA218, Johnstown, PA; BTA287, Meadville, PA; BTA317, New Castle, PA; BTA328, Oil City- Franklin, PA; BTA330, Olean, NY -Bradford, PA; BTA335, Orangeburg, SC; BTA375, Riverton, WY; and BTA416, Sharon, PA. See Local Multipoint Distribution Service Auction Closes, Public Notice, 14 FCC Rcd 8543 (1999). 4 See FCC Announces Conditional Grant of 127 Local Multipoint Distribution Service Licenses, Auction No. 23, Public Notice, 14 FCC Rcd 13200 (1999) (LMDS Conditional Grant Public Notice). 1 Federal Communications Commission DA 00- 2674 2 conditioned upon the full and timely payment of the remaining balance of each applicant's winning bid by August 23, 1999. 5 The Commission's competitive bidding rules afford applicants who fail to meet the initial deadline with an additional ten business days to make payment, provided they also pay a late fee equal to five percent of the amount due. 6 Thus, LMDSC had until September 7, 1999, to remit full payment. 3. At the time the LMDS Conditional Grant Public Notice was released, the balance left on LMDSC's twelve licenses totaled $792,440.00. Prior to September 7, 1999, LMDSC remitted a total of $396,220. 00, 7 leaving an unpaid balance of $396,220.00. On September 7, 1999, LMDSC filed a request seeking a sixty- day extension of the payment deadline. 8 In the alternative, LMDSC requested that, since it had already remitted payments totaling $633,952.00, it should be allowed to default selectively on four licenses (namely, those licenses for markets BTA122, BTA218, BTA335 and BTA375), and receive an unconditional grant of the remaining eight licenses (those licenses for markets BTA117, BTA203, BTA215, BTA287, BTA317, BTA328, BTA330 and BTA416) for which LMDSC paid in full. 9 4. On March 17, 2000, the Division released an Order granting in part and denying in part LMDSC’s request. 10 Specifically, the Division granted LMDSC’s request to default selectively on certain licenses and retain those licenses for which LMDSC had made sufficient payment to cover its bid amounts therefor. 11 The Division stated that the overall integrity of the auction process itself depends on timely payments by winning bidders, because prompt payment is an objective indicator that a winning bidder is financially able to meet its obligations and intends to provide service to the public. 12 The Division noted that the Commission has granted partial waivers in certain limited situations where the failure to pay was based upon inadvertent error and where a bidder had immediately remitted payment and evidenced an ability to pay at the time of the original deadline. 13 The Division concluded, however, that those cases were inapposite because the very nature of LMDSC’s request for an additional sixty days 5 Id. at 13200. 6 47 C. F. R. § 1. 2109( a). 7 On August 23, 1999, LMDSC submitted a portion of this amount ($ 171, 220. 00). It remitted the remainder ($ 225,000.00) on August 30, 1999, before the late payment deadline. On September 3, 1999, LMDSC also remitted a five percent late payment of $39,622.00. The actual late payment owed on the licenses LMDSC retained was $23,672.00. Accordingly, the over payment amount of $15,950. 00 will be applied to the payment for these licenses. 8 LMDS Communications, Inc., Request for Waiver of Sections 1.2109( a) and (c), 1.2104( g) and 101. 1105( b) of the Commission's Rules (filed September 7, 1999) (Waiver Request). 9 On March 3, 2000, LMDSC amended its September 7, 1999, waiver request to revise the list of licenses it was seeking to retain. The caption accurately reflects the amended request. See Letter from Larry Blosser, Blumenfeld & Cohen to Catherine Fox, Public Safety & Private Wireless Division, Wireless Telecommunications Bureau (March 3, 2000). 10 Order, 15 FCC Rcd at 8618 ¶ 1. 11 Id. at 8623 ¶ 10. 12 Id. at 8621 ¶ 7; see Mountain Solutions v. FCC, 197 F. 3d 512 (D. C. Cir. 1999) (upholding the Commission’s decision to deny a waiver of the down payment rules). 13 Order, 15 FCC Rcd at 8621 ¶ 7; Mountain Solutions, 197 F. 3d at 515- 516. 2 Federal Communications Commission DA 00- 2674 3 to secure financing indicated that LMDSC lacked immediate access to the necessary funds at the payment due date, as required by the relevant Commission precedent. 14 Thus, LMDSC may not be able to make prompt payment and provide service to the public. 5. On April 17, 2000 LMDSC filed its Petition. 15 LMDSC believes that it has met the criteria for granting a waiver and that the sixty- day extension should therefore have been granted. 16 LMDSC states that it is presenting new evidence concerning its financial qualifications, which emerged only after the initial waiver request was filed. 17 Thus, LMDSC requests that the Bureau reconsider and reverse the denial of the waiver request, and provide LMDSC an opportunity to submit the balance of the payment on its winning bids for the remaining LMDS licenses. 18 III. DISCUSSION 6. Reconsideration is appropriate only where the petitioner either shows a material error or omission in the original order or raises additional facts not known or not existing until after the petitioner’s last opportunity to present such matters. 19 A petition that simply reiterates arguments previously considered and rejected will be denied. 20 7. Based on our review of this matter, we conclude that reversal of the Division’s decision is not warranted. LMDSC claims that the Petition contains “new evidence concerning its financial qualifications, which emerged only after the initial petition for waiver was filed.” 21 That evidence consists of LMDSC’s representation that “[ w] ithin a week after LMDSC filed the waiver request on September 7, Mr. Goodman had secured verbal commitments from other investors to provide funds for the license payment, if necessary.” 22 We do not consider that information to be new information because, in its original waiver request, LMDSC represented that it had a “back- up financial arrangement” and that it wished to implement that plan. 23 Moreover, LMDSC did not supplement its waiver request between September 1999 and the release of the Order on March 17, 2000 to describe such arrangement in more detail. We have reviewed LMDSC’s Petition and determined that its arguments were fully considered in the Order. Accordingly, we deny LMDSC’s Petition. 14 Order, 155 FCC Rcd at 8622 ¶ 8. 15 Petition. 16 Id. at 2. 17 Id. 18 Id. 19 WWIZ, Inc., 37 FCC 685, 686 (1964), aff’d sub nom. Lorain Journal Co. v. FCC, 351 F. 2d 824 (D. C. Cir. 1965), cert. denied, 383 U. S. 967 (1966); 47 C. F. R. § 1.106( c). 20 WWIZ, Inc., 37 FCC at 686; Gaines, Bennett Gilbert, 8 FCC Rcd 3986 (Rev. Bd. 1993); 47 C. F. R. § 1. 106. 21 Petition at 2. 22 Id. at 4. 23 See Waiver Request at 8. 3 Federal Communications Commission DA 00- 2674 4 IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that pursuant to Section 4( i) of the Communication Act of 1934, as amended, 47 U. S. C. § 154( i), and Sections 1.106, 1.925, 1.2109( a), 1.2109( c), 1. 2104( g) and 101.1105( b) of the Commission’s Rules, 47 C. F. R. §§ 1.106, 1.925, 1.2109( a), 1.2109( c), 1. 2104( g) and 101.1105( b), the petition for reconsideration filed by the LMDS Communications, Inc. on April 17, 2000, IS DENIED. 9. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C. F. R. §§ 0. 131, 0.331. FEDERAL COMMUNICATIONS COMMISSION Kathleen O’Brien Ham Deputy Chief, Wireless Telecommunications Bureau 4