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Before the
Federal Communications Commission
Washington, D.C. 20554
In re Application of )
)
NORTHEAST COMMUNICATIONS OF ) File No. EB-02-IH-0768
WISCONSIN, INC. ) NAL/Acct. No. 200332080022
) FCC Account ID No. 0442010372
For C Block Facilities in the ) FRN No. 0002706190
710-716 and 740-746 MHz Bands )
ERRATUM
Adopted: October 22, 2004 Released: October 25,
2004
By the Chief, Investigations & Hearings Division, Enforcement
Bureau:
On September 22, 2004, the Chief, Enforcement Bureau
released Northeast Communications of Wisconsin, Inc., Forfeiture
Order, DA 04-3027 (EB rel. Sept. 22, 2004) (``Forfeiture
Order''). By this Erratum, we make the following two
corrections: (a) the caption above replaces the caption on the
Forfeiture Order, which inadvertently referenced an incorrect
NAL/Acct. No.; and (b) the paragraph below replaces paragraph 5
of the Forfeiture Order, which inadvertently contained
superfluous editorial material:
5. Turning to the instant case, we reject
Northeast's claim that it did not violate section
1.2105(c) because it was not an applicant in Auction
No. 44 on August 29, 2002, when the communication at
issue took place.1 Northeast maintains that it ceased
being an ``applicant,'' subject to section 1.2105(c),
when it failed to make its upfront payment by the May
30, 2002, deadline.2 Although Northeast's failure to
timely make its upfront payment disqualified it from
bidding in Auction No. 44, and suggested that WTB would
in due course dismiss its application, the fact remains
that, as of August 28 and 29, WTB had not dismissed
Northeast's application and it thus remained pending
under the rules.
When the Forfeiture Order is published in the FCC Record, it will
contain the corrections referenced herein.
FEDERAL COMMUNICATIONS COMMISSION
William H. Davenport
Chief, Investigations & Hearings
Division
Enforcement Bureau
_________________________
1 Response at 2-7.
2 Northeast's reliance on section 1.935 of the rules to support
its claim that it ceased being an applicant for the purposes of
the anti-collusion rule lacks merit. Response at 5-6. Section
1.935 relates to agreements among mutually exclusive applicants
to dismiss their applications and clearly is inapplicable here.
Northeast's further reliance on Public Notice, DA 02-659, 17 FCC
Rcd 5,140 (WTB rel. March 19, 2002) and Public Notice, DA 02-
1346, 17 FCC Rcd 10,700 (WTB rel. June 7, 2002), also is
misplaced. The March 19 Public Notice was issued in connection
with Auction No. 31, not Auction No. 44, and the June 7 Public
Notice merely identified Northeast as among those applicants that
had failed to timely make upfront payments and were, therefore,
ineligible to bid in Auction No. 44. Neither public notice
affected Northeast's status as an ``applicant'' in Auction No. 44
for purposes of the anti-collusion rule. We also reject
Northeast's argument that, because it decided the term ``bidder''
may be substituted for the term ``applicant'' in the context of
section 1.2105(c), and Northeast was not a bidder in Auction No.
44 , it follows that the Commission is prevented from lawfully
concluding that Northeast violated section 1.2105(c). Response
at 2-3. Northeast's interpretation of section 1.2105(c) ignores
the plain language of the rule. In this regard, although section
1.2105(c) initially referenced ``bidders,'' it was subsequently
amended in 1994 to apply to ``applicants.'' That amendment
occurred years before the Star and Northeast applications were
filed. See In the Matter of Implementation of Section 309(J) of
the Communications Act - Competitive Bidding, 9 FCC Rcd 7,684
(1994).