Before the
                Federal Communications Commission
                      Washington, D.C. 20554                                                                       

In the Matter of                   )
                              )
Virginia Tech Foundation, Inc.          )                        
Petition for Reconsideration of Request      )
for Waiver of Section 101.23 --         )
Auction No. 17,                    )
Local Multipoint Distribution Service   )


                              ORDER


Adopted:  February 20, 1998                  Released:  March 4, 1998


By the Wireless Telecommunications Bureau:


I.     INTRODUCTION

     1.   The Wireless Telecommunications Bureau has before it the Emergency Petition for
Reconsideration of Virginia Tech Foundation, Inc. ("VTF"), requesting reconsideration of a
waiver request on new grounds -- namely, that grant of its waiver is in the public interest under
Section 101.23 of the Commission's rules.  In requesting its waiver, VTF has sought to participate
in the Local Multipoint Distribution Service ("LMDS") auction as an "entrepreneur" with a 25
percent bidding credit.  VTF's petition for reconsideration is granted based upon the unique facts
and circumstances it has now presented.    

II.     BACKGROUND

     2.   In its initial waiver request, VTF requested a waiver of Section 101.1112(g) to
exclude certain revenues from its gross revenues calculation or, alternatively, a waiver of Sections
101.1112(g) and 101.1112(h) to exclude revenues of a particular affiliate.  Essentially, VTF
argued that, as a not-for-profit entity, certain of its proceeds should not have been counted in its
gross revenues calculation, because VTF either had restricted use of such funds or the state of
Virginia had not appropriated funds for use in the LMDS auction.  Alternatively, VTF contended
that it was unfair to attribute the revenues of its affiliate, Virginia Polytechnic Institute and State
University ("Virginia Tech") to VTF and requested a waiver of the affiliation rules, so it could
qualify to participate in the LMDS auction as an "entrepreneur".  The Auctions and Industry
Analysis Division disagreed and, on February 17, 1998, denied VTF's waiver request. 
Subsequently, VTF retained counsel and filed a petition for reconsideration.

III.     DISCUSSION

     3.   A petition for reconsideration shall state with particularity the respects in which a
petitioner believes the action taken should be changed and shall specifically state the relief sought. 
47 C.F.R. 1.106(d)(1).  Under Section 1.106(c)(2) of the Commission's rules, a petition for
reconsideration which relies on facts not previously presented to the Commission may be granted
where it is determined that consideration of the facts relied on is required in the public interest. 
Moreover, a request for a waiver of the Commission's rules must make an affirmative showing
that "the unique facts and circumstances of a particular case render application of the rules
inequitable, unduly burdensome or otherwise contrary to the public interest."  47 C.F.R. 
101.23(b).  On the basis of the record before us, we are persuaded that it is in the public interest
to consider the new facts and circumstances presented by VTF. 
   
     4.   In its petition, VTF provides the Bureau with additional facts which, taken
together, demonstrate compelling circumstances that are unique to VTF.  As a not-for-profit
entity affiliated with a premier high technology research university, VTF has limited discretionary
funds for bidding.  VTF submits evidence of its commitments to the development of advanced
communications and Internet capabilities, and to the acceleration of the public's access to new
services.  VTF supplies two examples of current and ongoing research projects that serve the
public, Blacksburg Electronic Village and Net.Work.Virginia.  According to VTF, the Blacksburg
Electronic Village research project, conducted in partnership with Bell Atlantic of Virginia and the
town of Blacksburg, has created an electronic network that links together institutions such as
schools, libraries, businesses, government offices and citizens located in Blacksburg, Virginia to
form a "geographic on-line community."  As VTF describes it, the Net.Work.Virginia research
project is a project conducted by Virginia Tech, in association with Old Dominion University and
the Virginia Community College System, to develop universal access to advanced digital
communications services via a broadband education network that carries audio, video and digital
information to schools, colleges and universities, libraries, museums and local government
agencies across Virginia.  

     5.   Based upon this record, we find that grant of VTF's petition will serve the public
interest, by permitting a not-for-profit entity affiliated with a public educational institution with
limited discretionary funds to continue its demonstrated commitment to developing advanced
communications technology for the public benefit.  Because VTF is a not-for-profit entity
affiliated with a public educational institution, and not a large commercial venture, grant of this
waiver will neither present an unfair competitive advantage in the LMDS auction nor thwart one
of the purposes underlying the affiliation rules -- to prevent larger commercial firms from spinning
off a "front" company to compete against legitimate small businesses.  We grant the waiver in
this limited instance in favor of the public interest, but emphasize that the policy and purposes
underlying our affiliation rules remain essential to ensuring that all financial and other resources
available to an entity will continue to be considered in assessing its size.  
       
     6.   For the reasons stated above, VTF's emergency petition for reconsideration IS
HEREBY GRANTED.  This action is taken under delegated authority pursuant to Section 0.331
of the Commission's Rules.

          

                              Daniel B. Phythyon
                              Chief, Wireless Telecommunications Bureau