Before the
               FEDERAL COMMUNICATIONS COMMISSION
                     Washington, D.C.  20554                                         
                                             DA 96-874
                    
In the Matter of                   )
                              )
Emergency Petition for Waiver      )
of Deadline for Submission of           )
Down Payment for the Broadband PCS )
C Block Auction filed by BDPCS, Inc.    )

                     ORDER ON RECONSIDERATION

Adopted:  May 30, 1996                       Released:  May 30, 1996

By the Chief, Wireless Telecommunications Bureau

     1.  On May 22, 1996, BDPCS, Inc. (BDPCS) filed a Petition for Reconsideration
(Petition) of an Order issued by the Wireless Telecommunications Bureau (Bureau) denying
BDPCS's Emergency Petition for Waiver of Section 24.711(a)(2) of the Commission's Rules,
governing the deadline for submission of down payments for the broadband PCS C block
auction.   For the reasons stated below, BDPCS's Petition is denied.

     2.  Background.  On May 15, 1996, BDPCS filed an Emergency Petition for Waiver
seeking an extension of time to submit the down payment required under Section 24.711(a)(2) of
the Commission's Rules.  BDPCS argued that, although it had made arrangements to satisfy its
down payment obligations, they unexpectedly fell through at the last minute and it could not
secure alternate financing by the May 15, 1996 down payment deadline.  BDPCS requested a
30-day extension to make its $36,689,196 down payment.  

     3.  On May 20, 1996, the Bureau issued an Order denying BDPCS's Emergency Petition
for Waiver.  The Order held that BDPCS had not made the showing required under Section
24.819(a)(1) of the Commission's Rules to justify grant of a waiver.  The Bureau found that
BDPCS had not shown that special circumstances warranted a deviation from the general rule
and that such a deviation would serve the public interest.  

     4.  BDPCS's Petition for Reconsideration.  In its Petition, BDPCS argues that we failed
(1) to consider adequately the merits of its waiver request and (2) to establish a basis for denying
its request.  More specifically, BDPCS alleges that the Bureau failed to give its request the
"hard look" required by WAIT Radio v. FCC.  It contends that the Bureau "summarily denied
the request without inquiry or analysis" and failed to take into consideration the unique facts and
circumstances surrounding its inability to submit a timely down payment.  It also argues that
the Bureau ignored evidence presented that BDPCS had a "reasonable basis" to believe that it
would be able to submit the down payment and that its inability to meet its down payment
obligation resulted from "circumstances that could not be predicted."  BDPCS objects to the
Bureau's statement that BDPCS's failure to submit a timely down payment gave reason to doubt
its ability to fulfill the additional down payment, installment payment and build-out obligations. 
BDPCS claims that the Bureau effectively held it to a different financial standard than other C
block bidders because it alone was required to demonstrate that it would have sufficient funds on
hand to fulfill its future payment obligations.  Finally, BDPCS argues that the Bureau failed to
consider "established FCC policy" countenancing a "flexible approach" toward designated
entities experiencing financial distress.   

     5.  Discussion.  We strongly disagree with BDPCS's contention that the Bureau failed to
consider adequately the merits of the waiver request.  The speed with which the Bureau
addressed BDPCS's request is not reflective of the level of review given to the filing.  Rather, it
reflects the Bureau's desire to respond expeditiously to "emergency" requests and in instances
where winning bidders fail to submit their required down payments.  We also believe that we
adequately reviewed the merits of the request under WAIT Radio.  WAIT Radio requires the
Commission to give a waiver request a "hard look" and not a perfunctory denial.  In resolving
waiver requests, however, the Commission is not required to "author an essay for the disposition
of each application."  Rather, it must provide a sufficient explanation so that parties may
understand the basis of the decision.  

     6.  The Bureau provided a reasoned explanation for its denial of BDPCS's waiver request
in the Order.  The Order considered the purpose of the down payment rule and the factual
circumstances surrounding BDPCS's inability to comply with it.  Noting that the rule is designed
to ensure that auction winners have the financial ability to complete payment for the license and
to pay for the costs of constructing a broadband PCS system, the Order found that the grant of a
waiver would not be in the public interest.  It also relied on Commission precedent in which
similarly-situated parties were denied their requests to extend or waive payment deadlines.  

     7.  We remain unpersuaded that the particular circumstances surrounding BDPCS's
failure to comply with the down payment requirement warrant a deviation from the general rule. 
Section 24.819(a)(1) of the Commission's Rules provides that a waiver of Part 24 of the
Commission's Rules is appropriate when a petitioner demonstrates that (1) 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 (2) the unique facts and
circumstances of a particular case render the rule inequitable, unduly burdensome or otherwise
contrary to the public interest, and there is no reasonable alternative.  

     8.  As the Order noted, BDPCS had ample notice that the auction was coming to a close
and its down payment obligation would soon become due.  In this connection, we indicated that
the down payment obligation was BDPCS's responsibility, and that, consistent with Commission
precedent, the Bureau could not be responsible for the difficulties it faced in its negotiations with
U.S. West Communications (USWC).  We also noted that 87 of the 89 auction winners were
able to secure financing in order to satisfy the down payment obligations when they became
due.  Moreover, the Order noted that USWC disputed the accuracy of BDPCS's description of
its negotiations.  According to USWC, it "never had any obligation to fund any of BDPCS's
down payment obligation to the FCC."  Nevertheless, BDPCS urges us to believe that it acted
with "reasonable diligence" to meet the down payment deadline and that it had a "reasonable
basis to believe it possessed adequate funding for the submission of the initial down payment." 
USWC's letter undermines BDPCS's contention that its inability to come up with the down
payment "was caused by circumstances that could not be predicted."  Because BDPCS failed to
meet its initial down payment requirement, we continue to have reason to doubt that BDPCS
would be able to fulfill its additional down payment, installment payment and build-out
obligations.  Consequently, we are not persuaded that under these circumstances, a waiver should
be granted.      

     9.  In its Petition, BDPCS makes additional arguments in an effort to bolster its waiver
request.  First, BDPCS argues that the Bureau held it to a different financial standard than other
C block winning bidders.  Specifically, BDPCS contends the Bureau effectively required it, and
not other winning bidders, to have sufficient funds by May 15, 1996 to meet all of its future
financial obligations.  We did not hold BDPCS to a different financial standard.  Rather, we
concluded that BDPCS's failure to submit a timely down payment indicated that BDPCS may not
be able to fulfill its future down payment, installment payment and build-out obligations. 
Second, BDPCS argues that the Commission's policy of a "flexible approach" toward designated
entities experiencing financial distress necessitates the grant of a waiver to BDPCS.  In a Public
Notice released by the Bureau on June 8, 1995, the Bureau described the process by which the
Commission could grant a "grace period" to licensees that fall behind on their installment
payments.  The Public Notice cited the Commission's Second Report and Order in the
Competitive Bidding Docket for authority to grant such grace periods.  While the Second
Report and Order allows for the grant of grace periods for missed installment payments, it makes
no such allowance for missed down payments.  Consequently, the Commission's "flexible
approach" toward designated entities is inapposite to the circumstances underlying BDPCS's
waiver request.  Lastly, BDPCS argues, for the first time, that denial of its waiver request is
inconsistent with the FCC's goals to promote the participation of small businesses in the PCS
business.  Significantly, BDPCS did not provide any support for this proposition.  Moreover, we
believe that the rules which the Commission has adopted for the C block adequately furthers its
goals to promote small business opportunities in PCS and BDPCS's specific circumstances do
not demonstrate otherwise.  

                         ORDERING CLAUSE
     10.  Accordingly, IT IS ORDERED that the Petition for Reconsideration filed by BDPCS
on May 22, 1996, IS DENIED.


                    FEDERAL COMMUNICATIONS COMMISSION



                    Michele C. Farquhar
                    Chief, Wireless Telecommunications Bureau