Eliot J. Greenwald, Esq. Fisher Wayland Cooper Leader & Zaragoza L.L.P 2001 Pennsylvania Ave., N.W. Suite 400 Washington, DC 20006 January 11, 1996 Re: New Wave LLC Request for Conditional Authorization and Request for Waiver of Sections 1.2105, 24.822, 20.6 and 24.204 of the Commission's Rules Dear Mr. Greenwald: This letter responds to your filing dated December 19, 1995 on behalf of New Wave LLC ("New Wave"). New Wave requests a waiver of the Commission's rules (47 C.F.R.  1.2105 and 24.822) to amend its short-form application to participate in the Broadband PCS C block auction by adding market B395. New Wave also requests a waiver of the PCS-cellular cross-ownership and spectrum cap rules (47 C.F.R.  20.6 and 24.204) so that it may be eligible to bid on this market and become the licensee should it be the high bidder at the close of the auction. You state that New Wave did not include this market on its short-form application in order to comply with the Commission's PCS-cellular cross-ownership and spectrum cap rules. One of New Wave's attributable investors owns a 90 percent ownership interest in a cellular licensee whose service area significantly overlaps market B395. New Wave claims that it should now be allowed to bid conditionally on this market in light of the decision in Cincinnati Bell Telephone Co. et al. v. FCC, Nos. 94-3701/4113; 95-3023/3238/3315 (6th Cir., slip op., released November 9, 1995), in which the court remanded the PCS-cellular cross-ownership rule to the Commission to conduct further proceedings. Requests for waiver of rules pertaining to eligibility to participate in the broadband PCS C block auction must meet the requirements of Section 24.819 of the Commission's rules (47 C.F.R.  24.819). Under that rule, a waiver will not be granted unless an affirmative showing is made: (i) 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 (ii) 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. Applicants must also show the lack of a reasonable alternative. 47 C.F.R.  24.819(a)(i) & (ii). Because New Wave's filing does not meet the criteria for granting a waiver, we are denying New Wave's requests. The Commission's Second Report and Order established the application procedures for the C block auction. See Second Report and Order in PP Docket No. 93-253, 9 FCC Rcd 2348 (released April 20, 1994) at  160-168. Under these procedures, potential applicants are required to submit a short-form application prior to an application deadline "to reduce the administrative burdens on bidders and the FCC and minimize the potential for delay." Id., at  165. Thus, the underlying purpose of Section 1.2105 of the Commission's Rules was to ensure that serious, qualified bidders would participate in the auction and that the auction would proceed without unnecessary delay. In order to maximize participation in the auction, the Commission decided to allow applicants, whose short-form applications were substantially complete but contained minor errors or defects, an opportunity to cure. Applicants would not, however, be permitted to make any major modifications to their applications. Id., at  167. We consider changes in market selections to be major modifications (see Supplemental Bidder Package, p. 30 (rel. October 11, 1995)). To allow applicants such as New Wave to make major modifications to their applications after the filing deadline would frustrate the underlying purpose of Section 1.2105. That is, permitting applicants to make major modifications to their applications would in all likelihood increase the administrative burdens on bidders and the FCC and increase the potential for delay of the auction. New Wave has not otherwise shown how the underlying purpose of Section 1.2105 would not be served, or would be frustrated, by its application in this case. Moreover, New Wave has not shown that the grant of a waiver is otherwise in the public interest. The Supplemental Bidder Package gave notice to all potential applicants of Radiofone's challenge to our PCS-cellular cross-ownership rule. Supplemental Bidder Package, p. 23. On November 13, 1995, the Wireless Telecommunications Bureau released a Public Notice in response to the decision by the Sixth Circuit in Cincinnati Bell. "FCC Will Proceed with C Block Auction on Schedule", Public Notice (released November 13, 1995). This Public Notice announced that "applicants (such as Radiofone, Inc.) that filed timely applications and requests seeking a waiver of the PCS-cellular cross-ownership rule and the 45 MHz limit will be allowed to participate in the C block auction on a continual basis." New Wave neither applied for the markets where one of its principals is a cellular operator nor did it seek a timely waiver of the PCS-cellular cross-ownership rule. Because New Wave did not initially seek a waiver of the PCS-cellular cross-ownership and spectrum cap rules, we will not allow New Wave to add a new market to its application. New Wave had the same opportunity to preserve its rights in the event that the Sixth Circuit's ruling would affect the Commission's rules. In any event, the effect of the ruling has not been determined. As the court stated, "while attempting to buttress the Cellular eligibility restrictions, the FCC may simply find more support for its conclusions [or] [p]erhaps the FCC's reexamination of the Cellular eligibility rules will result in a modification of those rules." Slip op. at 12 (emphasis added, citations omitted). Accordingly, New Wave's situation presents no unique facts or circumstances justifying the grant of a waiver. Moreover, New Wave has not shown the lack of a reasonable alternative. Finally, we note that the Commission's anti-collusion rules (47 C.F.R.  1.2105(c)) also bar New Wave from adding an additional market to its application. The anti-collusion rules require an applicant to identify on its short-form application all parties with whom it has entered into a bidding consortium or other joint bidding arrangement as of the short-form filing deadline. After the short-form filing deadline, applicants may not discuss the substance of their bids or their bidding strategies with other applicants (other than those identified on the short-form application) that are bidding in the same geographical license areas. 47 C.F.R.  1.2105(c)(1); Fourth Memorandum Opinion and Order in PP Docket No. 93-253, 9 FCC Rcd 6858, 6868 (1994). For the reasons stated above, New Wave's request IS HEREBY DENIED. Sincerely, Kathleen O'Brien Ham Chief, Auctions Division Wireless Telecommunications Bureau