T-Mobile USA, citing ‘unique’ circumstances of NextWave re-auctio...

one C-block license in Richmond, Va. Salmon PCS, which had financial backing from Cingular Wireless, ultimately was winning bidder for that license in bid that was less than T-Mobile’s withdrawal bid. T-Mobile told FCC in Fri. filing that it paid $4.6 million withdrawal penalty. In petition for declaratory ruling, T-Mobile said it wanted FCC to rule that broad language and public policy underpinnings of recent NextWave refund order “compel the refund of the penalty.” U.S. Supreme Court upheld U.S. Appeals Court, D.C., ruling that overturned FCC decision to cancel NextWave’s licenses for missed payment (CD Jan 28 p1). That D.C. Circuit ruling had thrown results of Jan. 2001 re- auction of those PCS licenses into disarray. Before Supreme Court decision, FCC last fall had issued order that outlined ways re-auction bidders could exit from auction amid continued legal uncertainty. That final refund order “provided complete monetary relief to applicants withdrawing their applications by refunding all monies on deposit and not assessing any default payments,” T-Mobile told FCC. “It would be illogical, inconsistent and inequitable to deny this same complete monetary relief to T-Mobile in the context of its bid withdrawal, and substantial societal costs would flow from continued retention of T-Mobile’s funds,” carrier said. It also argued FCC authority under its rules to impose final penalty was “erased” when Salmon withdrew its winning bid. “Similarly, because the occurrence of a future auction of the Richmond license is uncertain, the Commission’s rules do not authorize the imposition of any interim penalty,” T-Mobile said. All 22 winning bidders in NextWave re-auction had opted to have their pending applications for licenses dismissed. That meant auction was voided and “cannot be resurrected for the sole purpose of assessing some final penalty against T-Mobile in the event that a future auction of the Richmond license does occur.” Penalties for withdrawal in such cases are assessed only during course of auction when withdrawn bid for particular license is more than the winning bid. “There is no more basis to assess any interim penalty against T-Mobile than there is against the other bidders that withdrew bids for licenses that were ultimately the subject of withdrawn winning bids -- and imposition of any interim penalty against those other bidders would be absurd,” T-Mobile said.