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                                                           Before the
               FEDERAL COMMUNICATIONS COMMISSION
                      Washington, D.C. 20554

In the Matter of                                  )
                                   )
Mountain Solutions LTD, Inc.                      )
Request for Waiver of                        )
Section 24.711(a)(2) of the                            )
Commission's Rules Regarding                      )
Market Nos. B053, B168, B172, B187           )
B188, B224, B247, B275, B366, and B381       )


                             ORDER


     Adopted:   April 28, 1997                         Released: April 28, 1997


By the Acting Chief, Wireless Telecommunications Bureau:


                         I.  INTRODUCTION

     1. By this Order, we deny the Emergency Petition for Waiver of Section 24.711(a)(2)
of the Commission's rules and associated Motion to Enter into Consent Decree, filed by
Mountain Solutions LTD, Inc. ("Mountain Solutions"), a winning bidder for ten licenses in the
broadband Personal Communications Services ("PCS") C block auction.


                         II.  BACKGROUND

     2. On May 6, 1996, the Commission concluded the broadband PCS C block auction. 
Mountain Solutions was the winning bidder for Licenses B053, B168, B172, B187, B188, B224,
B247, B275, B366, and B381.  Pursuant to Section 24.711(a)(2) of the Commission's rules,
winning bidders are required to submit a 10 percent down payment on licenses won at auction. 
Each winning bidder must bring its total amount on deposit with the Commission (including
upfront payment) to five percent of its net winning bid within five business days after the auction
closes, with the remainder of the down payment (five percent) to be paid within five business
days after the application required by  24.809(b) is granted.  Mountain Solutions made the first
5 percent down payment on the required due date; the second 5 percent down payment was due
on September 24, 1996.  In lieu of making this payment, Mountain Solutions filed the Waiver
Petition seeking additional time to secure its financing to make its second 5 percent down
payment.

     3. On October 18, 1996, the Wireless Telecommunications Bureau ("Bureau") issued a
Public Notice seeking comment on the issues raised in the Waiver Petition, as well as on similar
waiver requests of the second down payment deadline filed by winners in various auctions.  
Several commenters, some with a financial interest in Mountain Solutions, support Mountain
Solutions's waiver request, contending that a waiver would be consistent with Congress's goal of
encouraging participation of small entities in spectrum auctions.  One commenter, Liberty
Cellular, Inc., supports denial of the Waiver Petition, contending that the Bureau should strictly
adhere to the Commission's rules in order to promote and maintain the integrity of the auction
process.

     4. During the pendency of these proceedings, Mountain Solutions filed the
Supplemental Petition, in which it (1) stated that it had secured the necessary financing to make
its second down payment; (2) reiterated its request to make the second down payment late; and
(3) proposed, in the alternative, to enter into a consent decree with the Commission to submit its
down payment late, along with a late fee.  Finally, in a Second Supplement, Mountain Solutions
cites, in support of its waiver request, the Commission's decisions in various Orders that granted
waiver requests of auction winners who failed to timely submit their second down payment, and
offers to tender "an irrevocable letter of credit" for the payments owed.

                         III.  DISCUSSION
     5. Pursuant to 47 C.F.R.  24.819, waiver of a provision of the PCS rules is
appropriate only when a party demonstrates either that the underlying purpose of the rule will not
be served, or would be frustrated, by its application in a particular case, and that grant of the
waiver is otherwise in the public interest, or that the unique facts and circumstances of a
particular case render application of the rule inequitable, unduly burdensome or otherwise
contrary to the public interest.  In its submissions, Mountain Solutions raises four principal
arguments to support its waiver request.  First, Mountain Solutions contends that its timely
payment of the first down payment is "evidence of its intention and ability to fulfill its
obligations," and that this fact differentiates the circumstances of this case from those situations
where the Commission has denied waivers to bidders who failed to make even their first down
payment.  Second, Mountain Solutions contends that its investors ceased financial discussions
with Mountain Solutions out of concern that they would violate the Commission's anti-collusion
rule.   Third, Mountain Solutions claims that its failure to make its second down payment on
time also was a result of the Commission's decision not to offer it certain defaulted C block
licenses on which it was the second highest bidder.  Mountain Solutions claims that it was
required to expend its funds to participate in the reauction of those licenses.  Fourth, Mountain
Solutions argues that if not granted a waiver, it will face default and that the Commission will
have to reauction its licenses, thereby further delaying deployment of service.

     6. We find unpersuasive Mountain Solutions's claim that unique facts or circumstances
exist here to warrant a waiver of our down payment rule.  Rather, we believe that the
circumstances here constitute the type of situation that the Commission specifically intended to
avoid when it adopted a strict down payment rule, i.e., having bidders win licenses and then
proceed to shop those licenses in order to obtain financing.  The Commission recently
confirmed that the "upfront and down payment provisions in Section 24.711 of the Commission's
rules are designed to ensure that the ultimate purpose of the auction -- encouraging and
facilitating the provision of reliable service to the public -- is not undermined by winning bidders
who lack the financial capability to pay for the license . .  . ."  Timely payments are a necessary
indicator to the Commission that the winning bidder is financially able to meet its obligations on
the license and intends to use it for the provision of service to the public.  The failure to secure
financing does not serve as a justification for a waiver.

     7. Mountain Solutions's attempt to differentiate its failure to make a second down
payment from other applicants' failure to make a first down payment is equally unpersuasive. 
The Commission has consistently denied requests for waiver of first down payment deadlines. 
Such payments are crucial in indicating to the Commission the sincerity of the bidder as well as
its ability to meet its obligations.  The overall effect of waiving down payment deadlines for
parties that do not have the funds to meet such deadlines would be a disruption to the auction
process and a delay in service to the public generally.  Indeed, we have not granted a request for
an extension of a down payment deadline for a license won through competitive bidding in any
case where it appeared that the party requesting the extension did not have the funds on hand on
the date of the payment deadline.  We have granted partial relief to licensees only where a delay
in making payment on the payment due date and the failure to make payment was either
inadvertent or due to miscalculation or administrative complications.  Mountain Solutions's
failure to make its payment resulted from a lack of funds, not miscalculation, inadvertence or
administrative complications.

     8. We further reject Mountain Solutions's contention that its investors' confusion about
the anti-collusion rule justifies a waiver.  Mountain Solutions should have secured its financing
prior to the close of the auction, not nearly four months after its close when the Public Notice
regarding the anti-collusion rule was released (i.e., August 28, 1996).  The Commission has
clearly stated that the ability to make timely payments is the responsibility of auction winners,
and that "the failure of a third party to perform its contractual obligations in dealing with an
auction applicant cannot constitute a special circumstance justifying a waiver of the
Commission's down payment rules."  The Commission has also made clear that it is not
responsible for the private business arrangements that an applicant has made to finance its
successful bid.

     9. We also reject Mountain Solutions's contention that its waiver request is warranted
because it was compelled to divert funds for its second down payment to finance its participation
in the C block reauction.  The responsible course of action for Mountain Solutions was not to
participate in the C block reauction, or to withdraw from it, if there were any question about its
financing.  As the Commission has noted, "[i]f an applicant is unsure of its financing, it seems
that the more appropriate course would be to not bid or to not bid in excess of the commitments
of which it was reasonably certain."

     10.    We are not persuaded by Mountain Solutions's contention that its waiver request is
warranted in order to avoid a default and reauction, which would result in a delay in the
deployment of PCS services to the public.  As noted above, our payment rules are designed to
ensure that auction winners have the necessary resources to deploy services quickly.  Mountain
Solutions's failure to make the required payments indicates that it is not in a position to provide
new services expeditiously.

     11.    We also reject Mountain Solutions's attempt to liken its situation to other C block
applicants who received partial waivers from the Bureau.  Similar treatment would be
warranted if Mountain Solutions had presented facts similar to those of the C block winners
whose waivers were partially granted.  The other C block winners made late payments and filed
waiver requests indicating that they were financially qualified at the time the second down
payment was due, and, but for an administrative error on their part, the payment would have been
timely submitted.  Mountain Solutions had not finalized its financing at the time the second
down payment was due, as its own filings acknowledge.  For the same reason, we reject the
alternative proposed in the Supplemental Petition for Mountain Solutions to submit its down
payment late, along with a late fee.  Allowing such a payment would run counter to our oft-stated
policy that down payment deadlines must be taken seriously.  Indeed, if we were to merely
require Mountain Solutions to pay a late fee where its delay was due solely to its lack of
financing, in contrast to a delay caused by a minor delinquency, we would in effect encourage
bidders to bid on licenses without first having secured the requisite financing.  Finally, Mountain
Solutions's offer of a letter of credit must also be rejected.  Under our rules, a letter of credit in
lieu of an actual down payment would not satisfy Mountain Solutions's down payment
obligation.



     12.    For the reasons stated above, both Mountain Solutions's Emergency Petition for
Waiver and Motion to Enter into Consent Decree ARE HEREBY DENIED.  This action is taken
under delegated authority pursuant to Section 0.331 of the Commission's Rules.


                           FEDERAL COMMUNICATIONS COMMISSION



                           Daniel B. Phythyon
                           Acting Chief, Wireless Telecommunications Bureau