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Federal Communications Commission
Washington, DC 20554
In the Matter of Cascade Access, L.L.C. Applicant for 700 MHz band
licenses in Auction 73 ) ) ) ) ) ) ) File No.: EB-IHD-14-00017745
NAL/Acct. No.: 200932080027 FRN: 004381547
MEMORANDUM OPINION AND ORDER
Adopted: December 7, 2015 Released: December 7, 2015
By the Chief, Enforcement Bureau:
1. We deny as procedurally and substantively deficient a Petition for
Reconsideration (Petition) filed by Cascade Access, L.L.C. (Cascade or
Company) to reduce the $75,000 that the Company paid as a penalty for
its collusive conduct in a recent Commission spectrum auction.^ Our
action was aimed at promoting the integrity of the Commission's
competitive bidding process for spectrum licenses and preventing an
anticompetitive market structure following the auction.
2. The Enforcement Bureau released the Forfeiture Order^ against Cascade
for engaging in collusive conduct during the Auction 73 bidding
process and for failing to notify the Commission of such behavior in
willful violation of Section 1.2105(c)(1) and (c)(6) of the
Commission's rules (Rules).^ As ordered, Cascade fully paid the
$75,000 fine, but now seeks partial reimbursement of that payment
through a retroactive downward adjustment of the fine amount.^
3. In addition to being procedurally deficient and substantively without
merit as described below, Cascade's payment of the forfeiture exhausts
the Company's administrative appeal rights.^ Any forfeiture payments
made to the Commission in the absence of fraud, duress, or mistake of
fact are not recoverable.^ Cascade has not demonstrated the presence
of any of these conditions. Thus, the Company's Petition is denied.
4. Even setting aside this waiver, there are separate and independent
procedural bases for denying the Petition. A review of the Petition^
and the entire record demonstrates that Cascade failed to comply with
the requirements of Section 1.106 of the Rules.^ In particular,
Cascade's Petition relies on two arguments: one of which has been
already fully considered and rejected by the Bureau,^ and another that
was untimely presented to the Bureau.^ We could also therefore deny
the Petition for failure to comply with the rules governing petitions
5. Furthermore, even if the Petition were procedurally proper, we also
would find no basis for reconsideration were we to reach the merits of
Cascade's arguments. Reconsideration is appropriate only when the
petitioner either demonstrates a material error or omission in the
underlying order or raises additional facts not known or not existing
until after the petitioner's last opportunity to present such
matters.^ Cascade's Petition fails to present such information
warranting reconsideration. ^ ^ We would therefore find that the
Enforcement Bureau properly decided the matters raised, and we would
uphold the Cascade Forfeiture Order for the reasons stated therein.
6. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended (Act), and Section 1.106 of the
Rules, the Petition for Reconsideration filed by Cascade is hereby
7. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order
shall be sent by first class mail and certified mail, return receipt
requested, to Brenda C. Crosby, President, Cascade Access, L.L.C., 301
South Broadway Street, Estacada, Oregon 97023, and to Elizabeth R.
Sachs, Esq., Lukas, Nace, Gutierrez & Sachs, LLP, 8300 Greensboro Dr.,
Suite 1200, McLean, Virginia 22102.
FEDERAL COMMUNICATIONS COMMISSION
^ This case was formerly assigned File No. EB-09-IH-0012.
^ See Cascade Access, L.L.C., Forfeiture Order, 28 FCC Rcd 141, para. 1
(Enf. Bur. 2013) (Cascade Forfeiture Order).
^ See id.
^ See 47 C.F.R. SS 1.2105(c)(1), (c)(6).
^ See Cascade Access, L.L.C., Request for Reconsideration (Feb. 6, 2013)
(on file in EB-IHD-14-00017745) (Petition).
^ See Associated Broadcasters, Inc., Memorandum Opinion and Order, 12 FCC
Rcd. 3324 (1997).
^ See id. at 3327, para. 8 (citing Putnam Tool Co. v. United States, 147
F.Supp. 746, 748 (1957), cert. denied, 355 U.S. 825 (1957)).
^ See Petition.
^ See 47 C.F.R. S 1.106.
^ See id. at (p)(3). In response to the Bureau's release of the Cascade
NAL, Cascade argued that it should receive a downward adjustment from the
recommended forfeiture of $75,000 on the basis of having had no prior
history of rule violations. See Cascade Access, L.L.C., Request for
Cancellation or Reduction of Proposed Forfeiture at 6 (Mar. 12, 2009) (on
file in EB-IHD-14-00017745) (NAL Response); Cascade Access, L.L.C., Notice
of Apparent Liability for Forfeiture, 24 FCC Rcd 1350 (Enf. Bur. 2009)
(Cascade NAL). Although this argument was addressed and rejected in the
subsequent Cascade Forfeiture Order, Cascade has repeated this argument in
its Petition. See Cascade Forfeiture Order, 28 FCC Rcd at 145-46, para.
11; Petition at 4-5.
^ See 47 C.F.R. S 1.106(p)(2). Per the Cascade NAL, Cascade was on notice
that the Bureau's decision to propose a forfeiture in the amount of
$75,000 had relied in part upon the precedent set in the auction collusion
case of Star Wireless, LLC. See Cascade NAL, 24 FCC Rcd at 1354, para. 14
(citing Star Wireless, LLC and Northeast Communications of Wisconsin,
Inc., Order on Review, 22 FCC Rcd 8943 (2007) (Star Wireless Order on
Review), appeal denied, Star Wireless, LLC v. FCC and USA, 522 F.3d 469
(D.C. Cir. 2008) (Star Wireless)). The appropriate time for Cascade to
have raised any and all arguments in response to the Bureau's reliance on
the Star Wireless Order on Review was within thirty calendar days of the
release of the Cascade NAL on February 10, 2009. See 47 C.F.R. S
1.80(f)(3). See also Cascade NAL, 24 Rcd at 1355, para. 16. It was only
after the release of the Cascade Forfeiture Order that Cascade presented
its new argument that it was entitled to a downward adjustment of the
forfeiture amount based on the similarities between its collusive behavior
and that of the entity in the Star Wireless matter. See Petition at 3-5.
The presentation of this argument was untimely.
^ See 47 C.F.R. S 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 18257, 18257, para. 2 (Enf. Bur. 2000) (citing WWIZ,
Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), aff'd sub.
nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert.
denied, 383 U.S. 967 (1966)); see also Ely Radio, LLC, Memorandum Opinion
and Order, 27 FCC Rcd 7608, 7610, para. 6 (Enf. Bur. 2012) (articulating
the standard of review for Petitions for Reconsideration).
^ Cascade argues for the first time in its Petition that, because the
Bureau relied in part on the wireless license auction collusion decision
in the Star Wireless Order on Review, it must follow the course of that
case in its entirety. Specifically, in the Star Wireless Order on Review
the Commission made a 25 percent downward adjustment to $75,000 from a
$100,000 forfeiture assessed by the Bureau. This was done on the basis of
a record of no prior violations of the Commission's rules. See Star
Wireless Order on Review, 22 FCC Rcd at 8953, para. 23. Cascade asserts
that "[t]he Bureau's willingness to apply a downward adjustment based on a
history of prior compliance in the Star Wireless matter and its refusal to
approve, at a minimum, a comparable adjustment with regard to the Cascade
forfeiture cannot be reconciled." Petition at 3. Cascade, however,
fundamentally misconstrues the record in this matter. Cascade's history of
compliance was explicitly considered and factored into the proposed
forfeiture at the NAL stage. See Cascade NAL, 24 FCC Rcd at 1354, para.
14. The Cascade Forfeiture Order, again explicitly referencing Cascade's
history of compliance, affirmed the proposed forfeiture, which, as noted,
already accounted for Cascade's history of compliance. Cascade Forfeiture
Order, 28 FCC Rcd at 145-46, para. 11. Thus, with respect to the
forfeiture amount and the consideration of the licensee's history of
compliance, the decision in the Cascade Forfeiture Order is completely
consistent with the Commission's decision in the Star Wireless Order on
Review, which was upheld on appeal to the U.S. Court of Appeals for the
District of Columbia. See Star Wireless, supra note 7.
^ 47 U.S.C. S 405; 47 C.F.R. S 1.106.
Federal Communications Commission DA 15-1389
Federal Communications Commission DA 15-1389