*Pages 1--4 from Microsoft Word - 60728.doc* Federal Communications Commission Washington, D. C. 20554 October 31, 2006 DA 06- 2176 Via Certified Mail, Return Receipt Requested Ben Tunis Company, Inc. Attn: Philip Tunis, President 23 Pine Ridge Road Rye Brook, NY 10573 Re: Final Bid Withdrawal Payment For Auction No. 37 Dear Mr. Tunis: Ben Tunis Company, Inc. (“ Tunis”), a participant in Auction No. 37, withdrew its high bid on FM construction permit FM006- C2 in that auction. Auction No. 62, the subsequent auction for the permit on which Tunis withdrew its high bid, has closed. As shown on Attachment A, in accordance with the Federal Communications Commission’s (“ Commission’s”) rules, we are now able to calculate Tunis’s final bid withdrawal payment obligation. Under the Commission’s rules, a bidder that withdraws a high bid during the course of an auction is subject to a bid withdrawal payment equal to the difference between the amount of the withdrawn bid and the amount of the subsequent winning bid. If a high bid is withdrawn on a license or permit that remains unsold at the close of the auction, the withdrawing bidder will be required to make an interim payment equal to three percent (3%) of the net amount of the withdrawn bid. 1 This payment amount is deducted from any upfront payments or down payments deposited for this bidder’s account with the Commission. 2 If, in a subsequent auction, that license or permit receives a winning bid in an amount equal to or greater than the withdrawn bid amount, then no final bid withdrawal payment will be assessed, and, upon appropriate request, the Commission will refund the interim three percent (3%) payment. 3 If in a subsequent auction, the winning bid for that license or permit is less than the bidder’s withdrawn amount, then the bidder will be required to make a final bid withdrawal payment equal to either the difference between the bidder’s net withdrawn bid and the subsequent net winning bid, or the 1 Implementation of Section 309( j) of the Communications Act— Competitive Bidding, PP Docket No. 93- 253, Fifth Report and Order, 9 FCC Rcd 5532, 5563 at n. 51 (1994); C. H. PCS, Inc., 11 FCC Rcd 14495 (1996) (requiring a three percent deposit). 2 47 C. F. R. § 1. 2106( d) and (e). 3 47 C. F. R. § 1. 2104( g)( 1). 1 Ben Tunis Company, Inc. DA 06- 2176 October 31, 2006 2 difference between the bidder’s gross withdrawn bid and the subsequent gross winning bid, whichever is less. 4 As shown in Attachment A, in accordance with Section 1.2104( g)( 1), after applying any interim bid withdrawal payment or amounts on deposit with the Commission, Tunis has a refund due of $11,232.00. Ordering Clauses Accordingly, IT IS ORDERED that, pursuant to Sections 4( i) and 309 of the Communications Act of 1934 as amended, 47 U. S. C. §§ 154( i), 309, and Section 1.2104( g) of the Commission’s rules, 47 C. F. R. § 1.2104( g), Ben Tunis Company, Inc. is ASSESSED a final bid withdrawal payment as computed in Attachment A. IT IS FURTHER ORDERED that, pursuant to 47 C. F. R. §§ 1.2104 and 1.2106, Ben Tunis Company, Inc. ’s interim bid withdrawal payment or funds on deposit will be applied towards the sum of the final bid withdrawal payment. IT IS FURTHER ORDERED that, in accordance with Section 1.2104 of the Commission’s rules, the Commission is prepared to refund to the payor( s) of record, the remaining funds withheld in connection with Ben Tunis Company, Inc. ’s withdrawal referenced above. To obtain a refund, the payor( s) of record 5 must submit a request( s) in accordance with the instructions set forth in Attachment B. IT IS FURTHER ORDERED that this letter shall be sent to the applicant and its representatives by certified mail. This action is taken pursuant to authority delegated by Section 0.331 of the Commission’s rules, 47 C. F. R. § 0.331. Sincerely, Rita Cookmeyer Financial Policy Analyst Auctions and Spectrum Access Division Wireless Telecommunications Bureau 4 47 C. F. R. § 1. 2104( g)( 1). 5 See Entertainment Unlimited, Inc., Request for Refund of Late Payment Fees for PCS Licenses Purchased in Auction No. 22, Memorandum Opinion and Order, 16 FCC Rcd. 10, 030 (2001) (noting that the Commission does not accept instructions regarding the refund of excess upfront payments from entities or individuals other than the payor of record). 2 Ben Tunis Company, Inc. DA 06- 2176 October 31, 2006 3 ATTACHMENT A Multi- Auction Bid Withdrawal Payment/ Refund Report Total Refund Due $11, 232.00 Permit Number Withdrawn Gross Bid Auction # 37 Withdrawn Net Bid Auction # 37 Re- auction Gross Bid Auction # 62 Re- auction Net Bid Auction # 62 3% Deposit Withheld from Auction # 37 Final Bid Withdrawal Payment Refund Due FM006- C2 $576, 000. 00 $374, 400. 00 $551, 000. 00 $551, 000. 00 $11, 232. 00 $ 0.00 $11, 232.00 3