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INTRODUCTION AND EXECUTIVE SUMMARY 1. By this action, we deny four petitions for reconsideration of our previous Memorandum Opinion and Order (MO&O) in the above-captioned matter and dismiss a fifth petition for reconsideration as repetitious. The petitioners are winning bidders in an Interactive Video and Data Service (IVDS) auction who failed to make a timely "down payment" on the licenses they won, and they filed requests for waiver of the payment deadline. A waiver of the subject down payment rule is appropriate "only if special circumstances warrant a deviation from the general rule and such deviation will serve the public interest." II. BACKGROUND 2. On July 28 and 29, 1994, the Commission held an auction to award IVDS licenses. Pursuant to the auction rules, on August 8, 1994, winning bidders were required either to submit their total "down payment" amount or, if they claimed "small business" status, to pay an initial down payment equal to one-half of the total down payment amount. Some winning bidders failed to make their down payment(s) by the August 8, 1994, deadline, and filed waiver requests seeking extensions of that payment deadline. On October 7, 1994, these waiver requests were denied by Order pursuant to delegated authority. On August 18, 1995, we denied the Application for Review of that Order filed by Commercial Realty St. Pete, Inc. (Commercial Realty), as well as Petitions for Reconsideration filed by Interactive America Corporation (Interactive), Louisiana Interactive Broadcasting System, Inc. (Louisiana), Henry Mayfield (Mayfield), and Vision TV, Inc. (Vision). 3. We noted in the MO&O that all license grants are conditioned on full and timely payment of the license price. Winning bidders are required to make a down payment on their licenses within five business days after being notified that they are the winning bidder on a license. The requirement of a full and timely down payment is intended to ensure that winning bidders "have the financial capability to attract capital to rapidly deploy their systems and operate them in an efficient manner." The down payment requirement ultimately helps deter defaults by discouraging "insincere" bidders (speculators) from winning licenses with the expectation that, post-auction, they can "shop" their winning bid in a late effort to obtain financing. Permitting such actions, we have stated, "would undermine the integrity of the auction itself." We also found in the MO&O that "petitioners assumed the risk that unexpected financial circumstances, of the type described, might later occur." All five of the previous parties now request reconsideration of the MO&O. No oppositions were filed. III. DISCUSSION A. Procedural Issues 4. As indicated supra, Commercial Realty previously filed an Application for Review of the Order. Under Section 1.106(b)(2) of the Commission's Rules, its Petition for Reconsideration must present new facts or changed circumstances. The only additional information contained in its petition, however, is: (a) a transcription of the pre-auction videotape created by EON Corporation (the videotape was described in Commercial Realty's previous filings); (b) a transcription of a pre-auction Commission presentation on IVDS; and (c) a July 2, 1995 (post-auction), newspaper article describing, inter alia, the state of the IVDS equipment market. These items do not constitute new facts or changed circumstances. Therefore, Commercial Realty's petition for reconsideration is dismissed as repetitious. Because Interactive, Louisiana, Mayfield, and Vision previously filed Petitions for Reconsideration, not Applications for Review, the merits of their petitions are discussed in detail below. B. Waiver Standard 5. As a threshold matter, it is worthwhile to consider the nature of a spectrum auction and the obligations it imposes on applicants/bidders. Certainly, one's voluntary participation in an auction carries an element of risk -- a risk that one's bid might be higher than the license is ultimately found to be worth, or a risk that post-auction events will otherwise be unfavorable to the licensee's business. Applicants, however, agree to shoulder these risks and factor the likelihood of the risks occurring into the decision to participate in an auction and to bid a certain amount of money. The Commission's role in the auction process is limited, and the Commission cannot guarantee a bidder's success post-auction, nor should it attempt to do so. Rather, the Commission endeavors, within the limits of its resources, to educate all potential applicants of the nature of the service being auctioned, the particulars of the auction process, and the obligations attendant to investing in a license. Most necessary investigation and calculation relating to operation of the service in the marketplace, however, is left to the applicant. The essence of some arguments in this proceeding is a claim that the Commission or another entity misled the applicant to such an extent as to render the applicant's investigations and calculations useless. As explained below, the record evidence does not support this claim. Moreover, we remind potential auction participants that any auction for a new service carries express obligations despite the inherent uncertainties about the development of the service. Applicants should factor this unique mix of obligation and uncertainty into their bidding choices. 6. As noted, a waiver of the subject down payment rule is appropriate "only if special circumstances warrant a deviation from the general rule and such deviation will serve the public interest." In an attempt to meet this waiver standard, petitioners make two arguments based on the actual or perceived state of the IVDS equipment market: (1) that, prior to the IVDS auction, they were misled about the current and potential availability of IVDS equipment; and (2) that, immediately after the auction, they lost financing or withheld payment either because of a letter sent by one winning bidder to others, or because of the bad publicity created by that letter. For the reasons described below, we conclude that petitioners have failed to demonstrate special circumstances justifying a waiver. Moreover, petitioners' reliance on other waiver cases to support their requests, as described below, is misplaced. In sum, we find that grant of the requested waivers would not serve the public interest. (1) Lack of Special Circumstances: Pre-Auction Events 7. Interactive argues that, prior to the auction, it was misled by the Commission and an equipment manufacturer, EON Corporation (EON), about the current and future availability of IVDS equipment, and that this misrepresentation justified its later non-payment of the required down payment. Specifically, Interactive argues, first, that the Commission over-emphasized the potential value of IVDS by stating in a pre-auction FCC Fact Sheet that "[s]ubscribers will be able to choose the camera angle during a sporting event, pay bills, shop-until-they-drop at malls, [etc.]." We reject this argument. This recitation of possible future uses for the spectrum cannot reasonably be seen to have blunted the Commission's other cautionary statements concerning equipment availability. Interactive further argues that an EON pre-auction, two-page promotional brochure created the "unmistakable" impression that EON equipment would be immediately available. Interactive cites, in particular, the EON statement, "Using leading-edge systems integration technology and world-class manufacturing processes, [Hewlett-Packard] builds each [EON] Personal TV Unit to live up to their reputation for exceptional quality, reliability and high performance." Interactive states that EON knew at that time that the Hewlett-Packard equipment, as pictured, would not be immediately available. We disagree with Interactive's characterization of this brochure and, based on our review, find that it is silent on the availability and price of equipment. Moreover, it instructs the reader to contact the company for additional information. In addition, we note that it is beyond the purview of the Commission to evaluate the factors that a company elects to consider in developing its auction strategy and equipment acquisition plans. We consider such matters to be independent business decisions within the applicant's control. 8. In the MO&O we stated, "[w]e do not agree with petitioners' argument that EON Corporation had an affirmative obligation to join in a significant working or educational relationship with petitioners prior to the auction." We affirm this view. Although Interactive contends that, pre-auction, "there were very substantial flaws and omissions in th[e] public record" concerning equipment availability, we believe that the onus was on Interactive to evaluate the state of the market and the service's potential and determine whether to participate in the IVDS auction. Similarly, we disagree with Interactive's assertion that the Commission "rushed to auction" under these circumstances. As noted in the MO&O, the Commission, through seminars, bidder information packages and fact sheets, took affirmative steps to provide all bidders with access to information useful in making business decisions about the value of the licenses, prior to auction. The Commission cannot, however, provide perfect information, nor can it guarantee the sufficiency or accuracy of information in areas outside of its purview. In the instance of the IVDS auction, the Commission was clear in informing potential auction participants of the build-out requirements and the current state of the "type-accepted" equipment market, which were the pertinent key elements within the Commission's area of expertise. At the time of the auction, bidders could plan on building their own equipment within the technical constraints of the rules, or on purchasing off-the-shelf equipment from others. As a result, we conclude that the pre-auction events detailed by Interactive do not constitute special circumstances warranting a deviation from the down payment rule. (2) Lack of Special Circumstances: Post-Auction Events 9. The time period between the end of the IVDS auction -- held July 28-29, 1994 -- and the deadline for submitting the initial down payment -- August 8, 1994 -- was ten calendar days. It was within ten days of making winning bids, then, that petitioners either chose not to pay, or found themselves unable to pay. During this time, Commercial Realty apparently sent a facsimile letter to certain winning bidders, stating that, because IVDS equipment was purportedly unavailable, winning bidders should jointly petition the FCC to defer the August 8, 1994, deadline for initial down payments. As described in the MO&O, Interactive, Louisiana, and Vision note that the letter cast doubt on the ability of the IVDS industry in general to meet the one-year build-out deadline, and generated adverse publicity for the industry. More specifically, Interactive states that it chose to withhold its payment on the basis of adverse post-auction information it received from multiple sources, including potential equipment suppliers other than EON. Louisiana states that it received two of the letters apparently sent by Commercial Realty, and that its lender financing was withdrawn as a result. Finally, Vision states that part of its shareholder and investor financing was withdrawn post-auction because of adverse "national" press publicity. 10. In the MO&O we stated, "[t]he petitioners' unanticipated lack of financing is not a special circumstance warranting a deviation from the general rule requiring a full and timely down payment, nor do we think that granting the requested waivers would serve the public interest. . . . We find that petitioners assumed the risk that unexpected financial circumstances, of the type described, might later occur." We noted our reluctance to "delve into the sufficiency or strength of the underlying, private contractual arrangements of bidders, [or] the efforts of bidders to overcome unexpected contractual difficulties." Finally, we stated, "[h]ere, as in other auction contexts, petitioners could have taken reasonable precautions, such as securing back-up financing, to ensure timely payment in the event of unanticipated difficulties." 11. In response to the MO&O, Interactive states that the publicity that occurred immediately post-auction gave Interactive "new information [and] a swirl of rumors," and created a quandary: pay the amount owed and face the "drastic consequences" of needing to meet the one-year construction "build-out" requirement, or request a delay in making the payment. We believe, however, that, as stated in the MO&O, "even if petitioners believed that sufficient equipment would not be available to meet the build-out deadline, the appropriate recourse would have been to request a waiver of that build-out deadline, not to withhold their down payment." Alternatively, Interactive could have met the payment deadline while requesting a waiver, rather than unilaterally deciding that payment was unwarranted given the asserted "new" information. 12. We also disagree with Louisiana's argument that Commercial Realty's actions were so "extreme" that "even the most reasonable and extensive financing arrangements by parties such as Petitioner could be and were disrupted." We have initiated enforcement proceedings against Commercial Realty on the basis that, inter alia, Commercial Realty sent its facsimile letter to other winning bidders in an effort to disrupt the Commission's auction procedures. Nonetheless, we believe that Louisiana's due diligence efforts should have included obtaining realistic valuations of the licenses in which it was interested, including the factoring in of equipment market and build-out considerations, and obtaining adequate, secure financing. We believe that Louisiana's subsequent problems could have been prevented by the use of back-up financing or other safeguards. Accordingly, we conclude that these post-auction events described by petitioners also fail to constitute special circumstances warranting a waiver of the down payment rule. (3) Analogies to Other Waiver Cases 13. Interactive draws on three Wireless Telecommunications Bureau (Bureau) decisions as support for its waiver request. In the first two, the Bureau, in response to individual requests, waived the one-year build-out requirement for certain IVDS licenses awarded by lottery. The Bureau waived the requirement (while retaining the three- and five-year requirements) because of ongoing agency appeals challenging the validity of the lottery and all resultant license grants. The Bureau stated, inter alia, that "it would be unreasonable to require the petitioners [licensees] to meet the current build-out requirements, given the uncertainty that exists concerning their licenses." Interactive argues that "uncertainty" also existed, concerning equipment availability, at the time of the pertinent auction down payment deadline, and that both the lottery build-out requirement and the auction down payment requirement were designed to deter speculation in the awarding of licenses. We disagree with Interactive's analysis. Uncertainty created by ongoing, post- lottery appeals going to the validity of license grants is not analogous to Interactive's asserted uncertainty over equipment availability, post-auction. Unlike the lottery cases, we have concluded here, as a factual matter, that petitioners, prior to auction, should have gauged the level of uncertainty with respect to equipment availability. We believe that if they had done so, the petitioners would have avoided what they consider an untenable post-auction situation. 14. Interactive's second analogy is to an Order in which the Bureau stayed the beginning of the "installment payment program" for IVDS licensees. In that instance, numerous licensees that had fulfilled their down payment obligation requested, inter alia, various changes in the upcoming installment payment program: changes in the frequency of the required payments, and changes in the amount of the payments (in light of alleged "inflated" bids made at auction). To permit additional time for the Commission to respond to these substantive requests, the Bureau issued an Order staying the beginning of the installment payment program. Interactive argues, "[b]ecause both decisions involved requests for waiver of a mandated payment deadline, there is no apparent principled distinction to be made between the sensible approach of delaying the installment payment deadline until the substance of petitioners' arguments for a delay can be evaluated, and the Commission's earlier refusal to extend the initial downpayment deadline in order to consider the impact of the significant post-auction revelations concerning the unavailability [of] IVDS equipment." We disagree with this analysis, as well. First, the requests associated with the stay order were not waiver requests. In addition, given that the licensees affected by the Order had already made substantial down payments and thus demonstrated their bona fides as legitimate licensees, the Bureau's stay did not present the policy considerations we have described in reference to the down payment waiver requests. Finally, as we previously noted, we do not believe that the asserted post-auction information concerning equipment availability constituted new information that would have justified Interactive's deliberate non- payment. C. "Hard Look" Argument 15. Petitioners argue that the Commission has failed to take a "hard look" at the arguments petitioners have proffered to support their waiver requests. Specifically, petitioners state that the Commission has focused on the policies underlying the down payment rule -- attempting to ensure that winning bidders are financially capable, "sincere" bidders -- without assessing the particular reasons given for missing the down payment. We disagree, and affirm our analysis supra. We determined in the MO&O that petitioners "assumed the risk that unexpected financial circumstances, of the type described, might later occur," and "could have taken reasonable precautions, such as securing back-up financing, to ensure timely payment in the event of unanticipated difficulties." Contrary to petitioners' claims, our determinations do not mean that we have precluded the possibility of granting such waivers. Rather, they mean that the events described by petitioners, while unexpected in nature, do not rise to the level of a special circumstance warranting the grant of a waiver. 16. Interactive argues that the Commission was predisposed not to grant future IVDS build-out waivers. In support, Interactive cites to two Public Notices. The first was released pre-auction in a "question and answer" format. Interactive points to the last two sentences of the Public Notice: Question 5-2: If [the] FCC has approved only one IVDS equipment manufacturer to date, is the FCC willing to extend its build-out requirements schedule until a sufficient number of equipment suppliers exist? Doing so would allow license holders to gain the price advantages and innovations that competition among IVDS suppliers would create. Answer: At this time, it cannot be determined how many suppliers of IVDS equipment will be available, post-auction, to provide equipment to licensees. While it is true that currently only one company has received Commission "type acceptance" for its IVDS equipment, this may change once the auctions are concluded and potential suppliers assess the sales potential for such equipment. If it later appears that there is a problem because licensees cannot obtain equipment, the FCC will consider granting waivers on a case-by-case basis. Licensees are reminded, however, that the Commission addressed this issue in the Report and Order concerning IVDS in Gen Docket No. 91-2 (at paragraph 66). There, the Commission stated that it did not intend to relieve any IVDS licensee of the construction requirements on the basis that development or deployment took longer than anticipated. We disagree with Interactive's interpretation of the Public Notice. The Public Notice stated that build-out waivers would be entertained, if and when necessary. In addition, the quoted language did not address the possibility that waivers might be granted in instances where an appropriate case was made outside of the arguments concerning deployment or development. Moreover, the one-year deadline, which was subsequently removed from the rules, in fact gave winning bidders more than one year to meet the benchmark: the one-year period commenced at the time of licensing, not at the time of the auction. We therefore find that Interactive's asserted apprehension over the one-year deadline did not justify its withholding payment. We also disagree with Interactive's argument that the Commission's subsequent amendment of the build-out rules, to eliminate the one-year deadline while retaining the three-year and five-year deadlines, supports its theory concerning apprehension. The build- out rule was amended "to provide licensees with greater flexibility in selecting service options, obtaining financing, selecting equipment, and other considerations related to construction of their systems," not to accommodate delays in making the initial down payment. Interactive knew, or should have known, of the state of the equipment market and the existence of the build-out and payment rules, prior to making its winning bids. Also, as noted, bidders could plan to purchase equipment or, if necessary or advantageous, build their own equipment within the technical constraints of the rules. We therefore disagree with Interactive's arguments. 17. Interactive also cites language from a second Public Notice released just after the auction, and before the payment deadline. The Public Notice states: A number of winning bidders have inquired about whether the Commission will change the due date for down payments. The Commission has not and does not intend to change its deadline. Bidders not submitting their full down payment by the required deadline will be considered to be in default and the licenses will be reauctioned. . . . We understand that some winning bidders have been encouraging other winning bidders to delay their down payments. Any such delay will constitute default. While the quoted language emphasizes the due date for payments and expresses the Commission's intention not to extend the deadline, it does not address the question of whether a timely-filed waiver request meeting the applicable standard would be granted. The Commission does not waive its rules absent special circumstances, and the statements in this Public Notice, which are fully consistent with that approach, do not support the argument that the denial of the subject waiver requests was predetermined. 18. Concerning Mayfield, we gave his arguments a "hard look" in the MO&O. He again argues: (1) that the IVDS auction rules unduly restricted his ability to solicit financing after the filing of his FCC Form 175 ("short form") application; (2) that IVDS service will reach the public faster if we grant him the requested waiver, rather than re-auction his license; and (3) that the Commission should have permitted him, pre-auction, to amend his FCC Form 175 application from individual applicant to partnership status. We see no reason to alter our previous conclusions. Mayfield also argues that the Commission, in promulgating the auction rules concerning the above arguments, failed to fulfill its statutory obligation to ensure that designated entities are afforded an opportunity to participate in IVDS auctions and in the provision of IVDS services. Mayfield's challenge to various rules amounts to an untimely petition for reconsideration of those rules, and will not now be entertained. Finally, Mayfield notes that the Commission, post-auction, amended the rules concerning collusion and amendments to the short form. As we noted in the MO&O, however, all prospective bidders were subject to the same rules as those rules existed at the time of the auction. Moreover, bidders in any spectrum auction, proceeding under whatever version of rules exists at the time of the auction, should not bid beyond their actual financial capabilities when the time of bidding arrives. We deny Mayfield's petition. D. Miscellaneous 19. Interest Payments on Amount Owed. Interactive emphasizes that it originally sought only a 30-day extension of the payment deadline, and was willing to pay interest on the amount owed. As we have discussed, however, Interactive has failed to demonstrate special circumstances warranting a deviation from the general rule requiring payment, and Interactive's offer to ameliorate the effects of its non-payment does not affect this determination. 20. Conflict of Interest. Interactive argues that the Commission should follow a procedure whereby "autonomous" Commission staff, meaning staff independent of those with a role in conducting auctions, would determine initial waiver requests concerning auction payment matters. Interactive states that the "prestige" resulting from auction revenues can create a conflict at the staff level. We do not perceive any conflict of interest requiring such a procedure. Often, staff familiar with a given area of substantive law are given responsibility for initially assessing filings, including waiver requests, in their area of expertise. We do not perceive the need to create separate procedures for such filings with respect to auctionable services. 21. Other Procedural Requests. Louisiana has filed a "Petition for Reconsideration, Leave to File Supplemental Evidence and Motion to Sever," and a concurrent Request for Stay of the MO&O. The Request for Stay is now moot, except that Louisiana also requests that this present decision not be made effective until forty days following its release. Because Louisiana gives no reasons to support its request, and we see none, we deny the request. Concerning Louisiana's additional captioned requests, Louisiana requests, first, that it be permitted to file in this matter additional evidence, as it becomes available through the Commission's enforcement proceeding against Commercial Realty, of Commercial Realty's effect on Louisiana's financing. We deny this request. Louisiana is already best situated to know the facts in this context that are specific to its case, and additional information concerning other licensees or the industry in general will not buttress the record that Louisiana has already submitted on its behalf. Louisiana also requests that its petitions in this matter be severed from those of Commercial Realty, to avoid ex parte difficulties. This is unnecessary. While we have addressed each petitioner's arguments in this matter in one document, the request of each petitioner is a separate matter. Granting Louisiana's severance request would not change the application of the ex parte rules to its request. We therefore deny this request. IV. ORDERING CLAUSES 22. Accordingly, IT IS ORDERED that the Petition for Reconsideration filed by Commercial Realty St. Pete, Inc., IS DISMISSED. 23. IT IS FURTHER ORDERED that the Petitions for Reconsideration filed by Interactive America Corporation, Henry Mayfield, and Vision TV, Inc., ARE DENIED. 24. IT IS FURTHER ORDERED that the Request for Stay and "Petition for Reconsideration, Leave to File Supplemental Evidence and Motion to Sever," filed by Louisiana Interactive Broadcasting System, Inc., ARE DENIED. 25. IT IS FURTHER ORDERED that this action IS EFFECTIVE UPON RELEASE. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary