******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** DA 99-555 March 19, 1999 David L. Nace, Esq. Lukas, Nace, Gutierrez & Sachs 1111 Nineteenth St., N.W., 12th Floor Washington, D.C. 20036 Dear Mr. Nace: This letter responds to your waiver request filed on behalf of Wireless II, L.L.C. ("WII"). WII requests a waiver of the requirement that it resubmit its application for Auction No. 22 no later than March 3, 1999, 5:30 p.m. (EST). In effect, WII seeks to correct its timely resubmitted application (FCC Form 175). WII's original and resubmitted applications contained inconsistencies identifying the applicant as both a consortium and Limited Liability Corporation ("LLC"), in violation of Sections 24.709, 24.712, 24.717 and 24.720 of the Commission's Rules. In requesting this waiver, WII argues that it had a reasonable, albeit mistaken, belief that its resubmission qualified under the Commission's Rules due to previous Wireless Telecommunications Bureau ("Bureau") rulings. In order to obtain a waiver of the Commission's Rules, WII must show "(i) that the underlying purpose of the rule will not be served, or would be frustrated, by its application in the 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." For the reasons cited below, we find that WII's Letter demonstrates unique facts and circumstances that meet the Commission's criteria for obtaining a waiver, and accordingly, we will permit WII to participate in Auction No. 22. WII is comprised of six members organized as an LLC under the laws of Nebraska. WII's initial short-form application (FCC Form 175) for Auction No. 22 classified it as an LLC, but in its Exhibit C to the application, it supported its claim to a bidding credit as a very small business based on its status as a consortium of a very small business. After an initial legal review of WII's application, the Bureau notified WII that it had failed to comply with the consortium requirements of Sections 24.709, 24.712, and 24.717. In response to this information and a February 25, 1999 conversation with Bureau staff, WII resubmitted its application to indicate its status as a consortium, but failed to alter any exhibits to further comply with the consortium standards. In effect, WII remained an LLC in structure but identified itself, and requested bidding credits, as a consortium. Accordingly, the Bureau rejected WII's resubmission. Upon review of WII's Waiver Letter, we find that the inconsistencies contained in its application are not of sufficient magnitude to disqualify WII from participation in Auction No. 22. WII's primary error was in requesting a 25 percent bidding credit as a very small business, when it actually qualifies for a 15 percent small business bidding credit under the Commission's Rules. We find that WII is qualified to participate in the auction on the face of its application. Moreover, it has shown good faith by adhering to the Commission's deadline for resubmission and by submitting its upfront payment. Accordingly, a grant of WII's waiver request is warranted under the totality of the circumstances of this case and further serves the public interest. Therefore, WII's request for a waiver of the Commission's Rules is granted. By grant of this waiver, the Bureau will modify WII's application to classify it as an LLC qualified to receive bidding credits as a small business under  24.720(b) of the Commission's Rules. This action is taken under delegated authority pursuant to Section 0.331 of the Commission's Rules. Sincerely, Amy J. Zoslov Chief, Auctions and Industry Analysis Division Wireless Telecommunications Bureau