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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Application of ) ) PINPOINT COMMUNICATIONS, INC. ) File No. 0000000140 ) For Local Multipoint ) Distribution Service Licenses ) To Serve BTA185, Hastings, Nebraska ) And BTA270, McCook, Nebraska ) ) ORDER Adopted: April 15, 1999 Released: April 15, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. The Public Safety and Private Wireless Division (Division) of the Wireless Telecommunications Bureau (Bureau) has before it a petition for reconsideration (Petition) of the denial of the Waiver Request (Request) of PinPoint Communications, Inc. (PinPoint), and dismissal of the above-captioned "long-form" application (FCC Form 601) for authorizations to provide Local Multipoint Distribution Service (LMDS) in the following Basic Trading Areas (BTAs): BTA185, B Block, Hastings, Nebraska; BTA270, A Block, McCook, Nebraska; and BTA270, B Block, McCook, Nebraska. For the reasons discussed below, we grant PinPoint's Petition and reinstate PinPoint's long-form application. II. BACKGROUND 2. PinPoint was the high bidder for authorizations to serve the above-referenced BTAs in the LMDS auction (Auction No. 17), which was completed on March 26, 1998. The Bureau released the Public Notice announcing the winning bidders in the LMDS auction (LMDS Public Notice) on March 26, 1998. Pursuant to Section 101.1106 of the Commission's Rules and the LMDS Public Notice, PinPoint was required to file its FCC Form 601 no later than April 9, 1998. PinPoint filed its long-form application, which included the Request, on April 15, 1998, six days after the long-form application filing deadline. 3. In its Request, PinPoint stated that it prepared its own LMDS submissions, without the assistance of counsel. PinPoint contended that it missed the long-form filing deadline due to an "administrative oversight" caused by the lack of an adequate system for tracking filing requirements. PinPoint argued that good cause existed for a waiver of Section 101.1106 of the Commission's Rules, because it has a history of complying with the Commission's Rules. PinPoint further argued that it made "good faith efforts" to meet the LMDS auction filing requirements. On September 22, 1998, the Division issued an order that denied PinPoint's Request, dismissed its long-form application, and imposed default payments on PinPoint. The Division determined that such a waiver was not warranted based upon the showing contained in the Request. PinPoint filed its Petition on October 21, 1998, and submitted a supplement to its Petition (Supplement) on November 5, 1998. 4. In its Petition, PinPoint provides new information concerning its company. Specifically, PinPoint states that it is a very small company with few employees. As such, contends PinPoint, it had appointed only one individual to track PinPoint's LMDS auction filing requirements. PinPoint claims that it missed the long-form filing deadline because, during the week of the deadline for PinPoint to file its long-form application, this individual was distracted and preoccupied by urgent and time-consuming family concerns requiring immediate attention. PinPoint further states that, upon discovering it had missed the long-form filing deadline, it took immediate action to correct its error, which included informing Bureau staff of its oversight, and expeditiously preparing and filing its application. 5. PinPoint contends that the six-day delay in filing its long-form application was a de minimis error and that dismissal of its long-form application is an extreme consequence under the circumstances. PinPoint asserts that its late filing was inadvertent, and that it gained no advantage by missing the filing deadline. PinPoint also contends that it exhibited good faith in taking quick action to rectify its error, and that because the late filing occurred after completion of the LMDS auction, no applicant was prejudiced. PinPoint argues that its late filing did not materially delay the processing of its long-form application, because: (a) the Bureau accepted its application for filing on April 16, 1998, one day after it was submitted; and (b) its upfront payment of $157,879 was more than adequate to cover its down payment, which was due on April 15, 1998. 6. PinPoint further argues that the public interest will be served by grant of the subject licenses because it will, given the opportunity, use those licenses to expedite new and competitive communications services to the rural areas included in the Hastings and McCook BTAs. PinPoint presents, as an example, its plan to rapidly deploy communications services by constructing its personal communications service (PCS) and LMDS systems concurrently, using many of the same tower sites. PinPoint asserts that dismissal of its long-form application would prevent it from expeditiously implementing competitive telecommunications services in the subject rural areas. III. DISCUSSION 7. The Commission's rules require that a petition for reconsideration shall "state with particularity the respects in which a petitioner believes the action taken . . . should be changed" and must specifically state the relief sought. A petition for reconsideration that relies on facts not previously presented to the Commission may be granted where it is determined that consideration of the facts relied upon is "required in the public interest." We believe that the public interest will be served by consideration of the new facts presented in PinPoint's Petition. 8. A request for waiver of the subject rule must affirmatively show that either: (a) the underlying purpose of the rule would not be served in a particular case and that grant of the waiver is otherwise in the public interest; or (b) the "unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome, or otherwise contrary to the public interest." One of the primary purposes underlying the post-auction application filing deadlines is to ensure that a bidder meets the Commission's qualification and eligibility requirements in order to "avoid delays in the deployment of new services to the public that would result from litigation, disqualification, and re-auction." 9. We believe that PinPoint has presented sufficient facts that, when considered in their totality, demonstrate unique circumstances that meet the standard for a waiver of the subject rules. The record indicates that, prior to the late filing of its long-form application, PinPoint had complied with all previous LMDS filing requirements. Additionally, PinPoint had, by virtute of its large upfront payment, timely submitted its required down payment. There is no indication in the record that PinPoint's error was part of a deliberate effort to delay the processing of its long-form application, or was the result of bad faith on the part of PinPoint. On the contrary, we note that upon discovering that it had missed the filing deadline, PinPoint immediately contacted the Bureau and prepared and filed its application. Accordingly, PinPoint's actions demonstrate that, but for its inadvertent error, PinPoint likely would have timely filed its long-form application. 10. Under the circumstances presented by PinPoint, we conclude that the public interest would not be served by rigid enforcement of the long-form filing deadline, which would result, inter alia, in the denial of the three LMDS licenses to PinPoint for which it had planned to use for rapid deployment of service to rural areas. In reaching this conclusion, we give considerable weight to PinPoint's prior record of compliance and its prompt action to remedy its delinquency. We also recognize that, because PinPoint had timely met its down payment requirements, and had submitted its long-form application less than one week after the filing deadline, the LMDS post-auction licensing process was not significantly delayed or materially adversely affected. Thus, we believe some flexibility is appropriate in this instance. Accordingly, we will hereby reverse our decision in part, and reinstate PinPoint's long-form application nunc pro tunc. This decision comports with Bureau precedent wherein spectrum auction applicants were granted partial relief for minor, inadvertent post-auction delinquencies that did not disrupt the auction process nor undermine the Commission's policy of facilitating rapid implementation of reliable communications service to the public. 11. Although we grant PinPoint a waiver of the rules requiring dismissal of a late-filed long-form application and associated imposition of default payment obligations, we nonetheless note that PinPoint failed to comply with the Commission's rules when it filed its long-form application six days late. PinPoint admits that its late filing was the result of its own error. PinPoint was on notice before commencement of the LMDS auction that it was responsible for complying with the Commission's processing rules, and that it would be subject to default payments if it failed to timely file its FCC Form 601. Consequently, the fact that PinPoint's error appears inadvertent does not excuse its failure to meet the long-form application filing deadline. Under the circumstances, we conclude that PinPoint should be subject to an administrative sanction for this action. We believe that such an approach comports with the Communications Act of 1934, as amended, as well as the Commission's Rules, and serves to underscore the importance of compliance with the Commission's processing rules. IV. CONCLUSION AND ORDERING CLAUSES 12. For the foregoing reasons, we believe that the public interest would not be served by strictly applying the Commission's long-form filing deadline and default payment rules in this instance. Therefore, PinPoint's Petition is granted, and its Request is granted. We further believe that our grant of a waiver in this case will not undermine the policies served by the rules that are the subject of PinPoint's Request, nor disrupt the LMDS auction process and post-auction licensing. 13. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 405, and Section 1.106 of the Commission's Rules, 47 C.F.R.  1.106, the Petition for Reconsideration filed by PinPoint Communications, Inc., on October 21, 1998, is GRANTED. 14. IT IS FURTHER ORDERED, that, pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and Section 101.23(a) of the Commission's Rules, 47 C.F.R.  101.23(a), the Waiver Request, filed on April 15, 1998, by PinPoint Communications, Inc., is GRANTED. 15. IT IS FURTHER ORDERED, that, pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), the FCC Form 601, File No. 0000000140, filed on April 15, 1998, by PinPoint Communications, Inc., is REINSTATED nunc pro tunc. 16. This action is taken pursuant to delegated authority granted under the provisions of Sections 4(i) and 5(c)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i); 155(c)(1); and Section 0.331 of the Commission's Rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau