WPC 2?BJZECourier3|f#Xw P7cXP#HP LaserJet IIISi PostScript Rm 610HPLAIIPO.PRSx  @hhhhHJwX@ X-#Xw P7cXP#2)qLXCourierTimes Roman"S^2CRddCCCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`lC2CC!CCCCCCCCCCd8YYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddodYYYYYYdzYzYzYzYdddddddCdCdCCCdNCdz8zCzCzCz8dddddCCCoNoNoNoNzCzCzCdddddzYzYNF2[dCYddddd7>d<d<$YYdCCddooCYNXg~PCB oaW2`[ Zk~3|fHP LaserJet IIISi PostScript Rm 610HPLAIIPO.PRSC\  P6QhhhhHJwPTimes RomanTimes Roman Bold S-#Xw P7cXP##&J\  P6Q[&P#2LLL* Lv "S^*8DSS888S^*8*.SSSSSSSSSS..^^^Jxooxf]xx8Axfxx]xo]fxxxxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZ8*888888888888S.xJxJxJxJxJooJfJfJfJfJ8.8.8.8.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxJxJoJoJoJoJxSfJfJfJfJxSxSxSxSxSxSxS8S8S888SA8xSf.f8f8f8f.xSxSxSxSxSxo8o8o8]A]A]A]Af8f8f8xSxSxSxSxxSfJfJN:*LS8JSSSSS.4}}S2S}2JJS88SS]]8J2t^^\\^^ee*C^.wR)Ewn\1fy\r\Sxx\r"S^2CRddCCCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`lC2CC!CCCCCCCCCCd8YYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddodYYYYYYdzYzYzYzYdddddddCdCdCCCdNCdz8zCzCzCz8dddddCCCoNoNoNoNzCzCzCdddddzYzYNF2[dCYddddd7>d<d<$YYdCCddooCY%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155<%%%n%%%%%%%%%%7O1O1O1O1O1bII1C1C1C1C1%%%%O7O7O7O7O7O7O7O7O7O7O1O7O7O7O7O7=7O1O1I1I1I1I1O7C1C1C1C1O7O7O7O7O7O7O7%7%7%%%7+%O7CC%C%C%CO7O7O7O7O7bOI%I%I%=+=+=+=+C%C%C%O7O7O7O7hOO7C1C1N'27%177777"SS7!TT7S!117n%%77l==n%1n!t>><<>>mBBs,>[N6-msTN[TTTH_<1CP+,,,v/"  xLfor reconsideration by both Mercury and High Plains of its earlier conditional grant of the 23 uninvolved  S- xapplications. Mercury PCS II, LLC, 12 FCC Rcd 18093 (1997), app. for review pending. The Bureau  x/held that, despite Mercury's apparent violations of the anticollusion rule, no questions existed as to  xMercury's qualifications to be a licensee. It found that Mercury had forthrightly admitted its use of trailing  x]numbers, as alleged, and had not attempted to deceive or mislead the Commission or other parties  xparticipating in the auction regarding its actions. It also found no reason to doubt Mercury's assertion that  xMercury's use of reflexive bid signalling was undertaken in the belief that it was permissible under the  x>Commission's rules or to doubt that Mercury will deal truthfully with the Commission in the future. Accordingly, the nine remaining applications were granted.  S-8  II. ALLEGED EX PARTE VIOLATIONS ă   xShortly before the Bureau released its August 21 order, High Plains sent a letter to Daniel  xPhythyon, the Acting Chief of the Bureau, accusing Mercury of violating the Commission's ex parte rules.  xjLetter from Elliott J. Greenwald to Dan Phythyon (Aug. 14, 1997). High Plains asserted that on August  x13, 1997, its representatives attended a meeting in Phythyon's office, where it was revealed that on or  xabout July 31, 1997, undisclosed communications were made between an undisclosed Commission staff  xmember and an undisclosed Member of Congress or Congressional staff member. High Plains alleged that  x"[a]s part of this conversation, the Member of Congress or Congressional staff member apparently  xrequested and received assurances that the abovereferenced matter would be resolved on or before August  x13, 1997." High Plains contended that the alleged conversation constituted an improper ex parte  x=presentation and that High Plains was entitled to full disclosure of the facts and circumstances related to the conversation and an opportunity to respond.   xHigh Plains's allegations were referred to the Office of General Counsel (OGC) for disposition.  S-See 47 C.F.R.  1.1214. OGC responded:  ` XxX` ` In order to clarify this matter, the Office of General Counsel conducted  ` an inquiry into the relevant facts and circumstances. Commission staff  ` Umembers, including Mr. Phythyon and Chairman Hundt's Chief of Staff,  ` Blair Levin, provided information. They indicate that during the time  ` period in question, Mr. Levin received several inquiries from  ` UCongressional Offices as to when action would be taken on the Mercury  ` (applications. After learning from the [Bureau] that action was expected  ` (by August 13, 1997, he so informed the inquiring Congressional offices.  ` When it appeared that action would not, in fact, take place by August 13,  ` dMr. Levin asked Mr. Phythyon to call a meeting of the parties to inform  ` Fthem that action would not occur by the time given to the Congressional  ` Foffices. OGC discovered no indication that any discussion of the merits  ` Uor outcome of this proceeding took place between Commission staff and  ` Congressional offices. Nor did we discover any indication that the  ` sCongressional Offices requested action by a particular date or stated that  ` tthe proceeding should be expedited for reasons other than the need to  So"-avoid administrative delay. See 47 C.F.R.  1.1204(a)(11).x`  xOGC concluded that the status inquiries disclosed by its inquiry were permissible under the ex parte rules.  S$-See 47 C.F.R.  1.1202(a). "%,((O)"Ԍ S-  xIn its Petition for Reconsideration, yOh- xԍ High Plains raises similar issues in its application for review of the Bureau's November 5, 1997, action. The application for review will be addressed separately by the Commission. High Plains accuses Mercury of orchestrating a campaign to  xinfluence the Commission by means of improper Congressional pressure. High Plains observes that during  xthe weeks preceding the Bureau's August 21 action, the Chairman's Office received nearly 30  xCongressional letters addressing the status of Mercury's applications and that an additional 10 letters were  xreceived shortly before the October 28 and November 5 actions. High Plains alleges that Mercury  xcontacted Republican Senators and Members of Congress from southeastern states by means of a letter  xjfrom a consultant named Joseph G. Riemer III (Riemer), which High Plains contends contains misleading  xinformation. Consistent with Riemer's letter, the Congressional letters, in addition to requesting  xinformation about the status of Mercury's applications, frequently make several assertions, including that  x(1) the Commission's failure to act on Mercury's applications unfairly placed Mercury at a competitive  xdisadvantage with respect to applicants whose applications had been granted, and (2) other applicants had received licenses despite being subjects of the Department of Justice investigation.   xAccording to High Plains, the Congressional letters, and presumably the telephone calls to Mr.  xLevin as well, went beyond mere status inquiries, such as Mercury could easily make itself. Rather, High  xPlains contends that the unusually large number of Congressional communications served to "generat[e]  xsufficient pressure to expedite the proceeding" (Petition at 7), as evidenced by the fact that the  xCommission and the Bureau acted very shortly after the respective pleading cycles ended. High Plains asserts that attempts to influence the Commission through Congressional pressure are improper.  S- III. DISCUSSION ă   xReconsideration is denied. As an initial matter, High Plains's petition for reconsideration attempts  x/to rely on facts and circumstances that were not presented in its original August 14 complaint. High  xPlains based its original complaint only on the communications related to the August 13 meeting in Daniel  x<Phythyon's office, which OGC determined were permissible status inquiries. The complaint was not based  x[on the Congressional letters and High Plains has provided no new evidence relating to the telephone calls  xor any basis to reconsider the OGC's evaluation of them. Under 47 C.F.R.  1.106(c), a petition for  xLreconsideration that relies on facts or circumstances not previously presented must demonstrate that the  xfacts and circumstances are new or newly discovered. Although High Plains asserts that it did not receive  xmany of the letters until after August 14 and thus did not know "the full extent of Mercury's illicit  x0solicitation campaign" (Reply at 4), it appears that High Plains was aware of at least some of the  xCongressional letters at the time it filed its complaint. Despite the procedural questions raised by High  xPlain's failure to include the Congressional letters in its complaint, however, the merits of the petition will  xbe considered because of the public interest in ensuring the fairness of the Commission's processes. 47 C.F.R.  1.106(c)(2).   xHigh Plains has failed to demonstrate that the Congressional inquiries reflected a significant  xviolation of the Commission's ex parte rules. Mercury asserts that the Congressional letters were served  xLon High Plains (Opposition at 6) and thus did not constitute "ex parte" presentations under 47 C.F.R.   x.1.1202(b)(1), which would violate the rules. It appears that the letters were in fact served, although not  xalways in a timely manner. In this regard, High Plains notes (Reply at 4, 6 n.12), that OGC has  S!- xpreviously admonished Mercury to ensure that such letters are served in a timely manner. See Letter  xjfrom John I. Riffer, Assistant General Counsel, Administrative Law Division, to Mr. Thomas Gutierrez,  xEsq. (Sept. 19, 1997). However, in so doing, OGC observed that although service was not always timely,  x^Mercury had informed the Commission "that Mercury had in fact previously explained to the" $ ,(('"  S- xCongressional offices of the need to make service and thereby undertook to effectuate service . . . ." Id.  xThus, it appears that any lack of timeliness of service does not reflect an intent on the part of Mercury  xto deprive High Plains of fair notice of the presentations made. In light of the foregoing, any violation  xof the rules relating to timeliness of service appears to be a minor one. The precedent cited by High  xPlains involving the appropriateness of sanctions in response to egregious violations of the rules does not  S- xjwarrant a sanction for the technical deficiencies presented here. See Elkhart Telephone Co., 11 FCC Rcd  S- x1165 (1995) ; Pepper Schultz, 4 FCC Rcd 6393 (Rev. Bd. 1989), rev. denied, 5 FCC Rcd 3273 (1990);  S-Stearns County Broadcasting Company, Inc., 104 FCC 2d 688 (Rev. Bd. 1986).   xIrrespective of the ex parte rules, it is also true that, as the courts have long held, an administrative  xaction that reflects an improper intrusion by Congress into administrative decisionmaking deprives the  S- xparties of due process in adjudicatory matters. See Pillsbury Co. v. FTC, 354 F.2d 952, 96365 (5th Cir.  S - x1966). Even assuming arguendo, however, that Congressional pressure may have motivated the  xCommission to accelerate its deliberations in this case, that does not implicate the concerns described in  S6 - xPillsbury and its progeny. As the court explained in ATX, Inc. v. U.S. Department of Transportation, 41  xF.3d 1522, 1527 (D.C. Cir. 1994): "We are concerned when congressional influence shapes the agency's  xdetermination of the merits. [Footnote omitted.]" None of the Congressional letters address the merits of  xwhether Mercury's conduct violated the Commission's rules or whether Mercury was qualified to be a  xlicensee. A fair reading of the letters indicates that they address the timing of the Commission's  x{consideration of Mercury's applications and not the merits. There is no support for High Plains's  xcontention that the letters communicated the message that "dire political consequences may result if the  S- xCommission did not take rapid action in Mercury's favor." Reply at 7 (emphasis added). On the contrary  xMseveral of the letters expressly stated that the writers, while seeking expeditious action on Mercury's  x<applications, "fully support the Commission and the Department [of Justice] efforts to conduct unfettered  S8- xinvestigations into the auction process." See, e.g., Letter from [Senators] Trent Lott and Thad Cochran  x>to the Honorable Reed Hundt (Jul. 17, 1997). The letters therefore did not taint the decisionmaking process, and there is no basis for further action because of the submission of these letters.   #xAccordingly, High Plains's "Petition for Reconsideration; Request for Investigation," filed November 24, 1997, is denied. x` `  hh@hSincerely yours, x` `  hh@hChristopher J. Wright x` `  hh@hGeneral Counsel  S -cc: xThomas Gutierrez, Esq. xLukas, McGowan, Nace & Gutierrez x1111 Nineteenth Street, N.W. xSuite 1200 xWashington, D.C. 20036