DA  96-1273     
                                
                                
                                
                                
                           Before the
               FEDERAL COMMUNICATIONS COMMISSION
                     Washington, D.C.  20554


In the Matter of         )
C.H. PCS, Inc.      )
                    )
Request for Waiver of    )
Section 24.711(a)(2) of the   )
Commission's Rules       )



                              ORDER

Adopted:  August 9, 1996                          Released:  August 9, 1996


By the Chief, Auctions Division:

     
     1.  On July 24, 1996, C.H. PCS, Inc. ("CHPCS") filed an Emergency Petition for Waiver
("Petition") of Section 24.711(a)(2) of the Commission's Rules, requesting that the Commission
extend the deadline for submission of the down payment for the license upon which it was the
winning bidder in the PCS Broadband Entrepreneurs' Block ("C Block") reauction.  Upon review
of CHPCS's arguments, we deny the Petition. 

     2.  Background.   CHPCS was a successful bidder for license number B347, covering the
Phoenix, Arizona Basic Trading Area ("BTA"), in the C Block reauction which closed on July
16, 1996.  By Public Notice on July 17, 1996, the Commission notified successful bidders that
down payments would be due on or before July 24, 1996.  In the Petition, CHPCS states that the
Daewoo Corporation ("Daewoo"), from which CHPCS had received financial commitment in
support of its participation in the reauction, withdrew its commitment less than twenty-four hours
before the close of the reauction.  CHPCS contends that the shortness of the notice prior to
Daewoo's withdrawal distinguishes its request for relief from prior Commission actions in which
it denied waivers of deadlines for the submission of down payments.  Therefore, CHPCS argues,
the Commission should extend the deadline for submission of its down payment.
 
     3.  We find that CHPCS has failed to demonstrate that a waiver of Section 24.711(a)(2),
which governs the deadline for submission of down payments, serves the underlying purpose of
the rule or is otherwise in the public interest.  In the Second Report and Order in the competitive
bidding docket, the Commission established the requirement of a full and timely down payment
to ensure that bidders are financially capable of constructing and operating their systems.  The
Commission noted that this requirement would also deter defaults by discouraging insincere or
financially unqualified bidders from "shopping" a winning bid in order to obtain financing for a
down payment.  

     4.  CHPCS contends that special circumstances, in this case the last-minute withdrawal of
a funding commitment from Daewoo, warrant the Commission's departure from its general rule. 
We disagree.  The Commission has expressed in prior rulings that difficulties in obtaining
funding do not support waiver of the down payment deadline.   As the Commission noted in the
IVDS Order, CHPCS could have taken reasonable precautions, such as securing back-up
financing, to ensure that funds were available for a timely down payment in the event of
unanticipated difficulties.  In its Order denying a Petition for waiver of the upfront payment in
the Broadband PCS A and B Block auction, the Bureau stated that a "third party's failure to
perform its contractual obligation did not constitute a special circumstance justifying a waiver of
the deadline date associated with that rule." As such, we believe that the circumstances
presented here do not warrant deviation from the Commission's policy.    

     5.  We are also not persuaded that relief is warranted because CHPCS placed no new bids
after it learned that it was losing a major investor.  Indeed, CHPCS failed to act responsibly by
withdrawing its high bid from the Phoenix market once it knew that the company had insufficient
funds to meet its down payment obligation.  The purpose of holding bidders that withdraw after
the close of an auction responsible for an additional three percent payment (on top of any bid
withdrawal payment owed) is to deter just such behavior.  Under the circumstances described
by CHPCS, it would not be in the public interest to grant a waiver here, since it would undermine
the purpose of our bid withdrawal rules.

     6.  Accordingly,  IT IS ORDERED that pursuant to Section 24.819 of the Commission's
Rules, C.H. PCS Inc.'s Emergency Petition for Waiver IS DENIED.  This action is taken under
delegated authority pursuant to Section 0.331 of the Commission's Rules.

     7.  IT IS FURTHER ORDERED that pursuant to Sections 1.2109 and 24.708 of the
Commission's Rules, the long-form application (FCC Form 600) submitted by C.H. PCS, Inc. IS
DISMISSED. 


                         FEDERAL COMMUNICATIONS COMMISSION
     


                         Kathleen O'Brien Ham
                         Chief, Auctions Division 
                         Wireless Telecommunications Bureau