197 F.3d 512 (D.C. Cir. 1999)
Mountain Solutions, Ltd., Inc.,Appellantv.Federal Communications Commission, Appellee
No. 98-1503
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 1999Decided December 3, 1999

Appeal of an Order of the Federal Communications Commission
Michael K. Kurtis was on the briefs for appellant.
Christopher J. Wright, General Counsel, Federal Communications Commission, Daniel M. Armstrong, Associate General Counsel, and Pamela L. Smith, Counsel, were on the  brief for appellee.
Before:  Ginsburg, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
Mountain Solutions Ltd., Inc. was  the winning bidder for ten licenses in the broadband personal  communications service C block auction.  Under the rules of  the Federal Communications Commission, Mountain Solutions was required to make a 10% down payment for the  licenses, payable in two installments.  See 47 C.F.R.  §§ 24.711(a)(2), 24.809(b).  Mountain Solutions paid the first  installment but was unable to make timely payment of the  second down payment.  On the due date, Mountain Solutions  petitioned the Commission for a thirty-day waiver of its rules  in order to allow completion of financing discussions.  Although Mountain Solutions supplemented its waiver request  within twenty-three days to state that financing discussions  had been successfully concluded and then, following the Commission's grant of other waivers, tendered an irrevocable  letter of credit, the Commission denied the waiver request for  lack of financing on the due date.  On appeal Mountain  Solutions contends that the Commission was arbitrary and  capricious in denying a waiver when it granted waivers to  similarly situated entities, and that changed regulatory procedures make recission an appropriate remedy for such arbitrary and capricious action.  Alternatively, Mountain Solutions asks the court to enjoin the Commission's enforcement  of any default penalties against it.  Because the Commission  did not abuse its broad discretion in denying a waiver and  because the claim for injunctive relief is not ripe, we deny the  petition in part and dismiss the petition in part.

I.

2
In 1993, Congress authorized the Federal Communications  Commission ("Commission") to allocate radio spectrum by  auction.  See Omnibus Budget Reconciliation Act of 1993,  Pub. L. No. 103-66, tit. VI,  6002(a), 107 Stat. 312, 387-392  (1993) codified in principal part at 47 U.S.C.  309(j).  Congress directed the Commission to design its implementing  rules to "ensure that smaller businesses ... and businesses  owned by members of minority groups and women are given  the opportunity to participate in the provision of spectrum based services," and thus "to consider the use of ... [such procedures as] bidding preferences...." 47 U.S.C.   309(j)(4)(D).  Accordingly, the Commission set aside two  blocks of personal communications service ("PCS") spectrum,  the 30 MHz C block and the 10 MHz F block, for bidding by  "designated entities," defined as "small businesses, businesses  owned by members of minority groups and/or women, and  rural telephone companies."  47 C.F.R.  1.2110(a) (1999);see also Implementation of Section 309(j) of the Communications Act--Competitive Bidding, Fifth Report and Order, 9  F.C.C.R. 5532 p p 93-95, 113 (1994).  In recognition of the  challenges faced by designated entities in obtaining financing,  the Commission adopted a special payment program for C  block licenses, reducing both the up front bid amount and the  percentage down payment at the close of the auction.  Thus,  the licensees were required to submit a 5% down payment  within five days of the close of the auction and a second 5%  down payment within five days of the conditional grant of  their licenses, with the remaining 90% and interest payable in  quarterly installments over ten years.  See 47 C.F.R.   24.711(a)(1), (2), (b) (1996).


3
Mountain Solutions was the successful bidder for ten licenses in the Commission's original C block auction held from  December 1995 through May 1996.  It timely paid approximately $1.2 million as its initial 5% down payment.  Its  license applications were conditionally granted on September  17, 1996, and thus its second down payment was due on  September 24th.  On the due date, Mountain Solutions filed  an emergency petition for a waiver, seeking a thirty-day  extension of the second down payment deadline.  Asserting  that an agreement providing the necessary financing was  imminent and was expected within the following thirty days,  Mountain Solutions stated that it was negotiating an agreement with a major United States financier to obtain the  financing required to meet its obligations but was not yet in  possession of the funds.  On October 17, 1996, Mountain  Solutions supplemented its waiver petition to advise that it  had secured the necessary financing from its current investors, while noting that a public notice released August 28,  1996, which gave guidance to D, E, and F Block bidders on  the Commission's anti-collusion rule, had contributed to "Mountain Solutions' inability to remit its second down payment within the prescribed time period."1


4
Mountain Solutions was one of seventeen applicants for  various spectrum licenses seeking a waiver of the down  payment deadlines, including seven other C block applicants. The Wireless Telecommunications Bureau ("the Bureau") and  the Mass Media Bureau issued a Public Notice seeking  comment on how it should evaluate these waiver requests. On February 4, 1997, the Bureau granted other waiver requests, subject to a 5% late penalty, of the other C block  applicants as well as other waiver petitions.  In each order  granting a partial waiver, the Bureau noted that the failure to  pay timely was inadvertent.  In a number of cases, the  inadvertence occurred because the first down payment was  sufficient to cover both the first and second down payments,  and the bidder had assumed that the Commission retained  sufficient funds to cover the latter.2  Two other bidders had  miscalculated the amount of their down payments.3  The remaining partial waivers were granted in circumstances  where the bidder was either unaware of the payment deadline4 or, due to payment submission complications, made  payment one day late.5  In each order, the Bureau made note  of two circumstances:  first, the importance the Commission  attached to the first and second down payment obligations for  "discouraging insincere or financially unqualified bidders  from 'shopping' a winning bid in order to obtain financing for  a down payment,"6 and second, that the inadvertent nature of  the missed second payment deadline, combined with the fact  that payment was submitted promptly upon discovery of the  mistake in each case, demonstrated "that, but for the [inadvertent error, each bidder] would have been able to meet its  payment obligations on time."7


5
On February 12, 1997, Mountain Solutions filed a second  supplement to its waiver request, asserting that the Bureau  had indicated for the first time in its February 4th waiver  orders that it places positive weight on an applicants' late  tendered second down payment in determining whether to  grant a waiver request, and negative weight on an applicants'  apparent inability to pay its second down payment on the due  date.  In light of the former, Mountain Solutions tendered an  irrevocable letter of credit demonstrating that it could meet  its second down payment obligation.  As to the latter, Mountain Solutions asserted that "the Commission has never suggested [previously] that fundraising efforts to satisfy the  second down payment are an indication of 'insincerity' or lack  of financial qualifications."


6
On April 28, 1997, the Bureau denied Mountain Solutions'  waiver request on the ground that "[t]he failure to secure  financing does not serve as a justification for a waiver," and  observed:


7
[W]e have not granted a request for an extension of adown payment deadline for a license won through com-petitive bidding in any case where it appeared that theparty requesting the extension did not have the funds onhand on the date of the payment deadline.  We havegranted partial relief to licensees only where a delay inmaking payment on the payment due date and the failureto make payment was either inadvertent or due to mis-calculation or administrative complications.  MountainSolutions' failure to make its payment resulted from alack of funds, not miscalculation, inadvertence, or admin-istrative complications.


8
In the Matter of Mountain Solutions Ltd., Inc. Request for  Waiver of Section 24.711(a)(2) of the Comm'n's Rules, 12  F.C.C.R. 5904 p p 6-7 (1997).  Mountain Solutions unsuccessfully sought review by the Commission, which noted that  "[o]ur second down payment deadline is critical to our licensing process," and that "Mountain Solutions has failed to  demonstrate its financial viability at the time its second down  payment was due."  In the Matter of Mountain Solutions Ltd., Inc. Emergency Petition for Waiver of Section  24.711(a)(2) of the Comm'n's Rules, 13 F.C.C.R. 21983,  p p 14-15, 17 (1998) ("Commission Order").  By contrast, the  Commission noted, "[i]n other instances where we have partially granted a payment deadline waiver request, the petitioner receiving relief had the money at the time it was due."Id. at p 16.

II.

9
Contending that the Commission was arbitrary and capricious in denying its waiver request, Mountain Solutions maintains that (1) all other "similarly situated" parties were  granted waivers, making the Commission's treatment of similarly situated parties inconsistent, and undermining the supposed policy basis behind the Commission's treatment of  Mountain Solutions;  (2) the Commission's revision of its  second down payment rule during the pendency of Mountain  Solutions' waiver request to make the deadline more flexible  indicates that denial of Mountain Solutions' waiver request  was unnecessarily harsh and the purported policy basis behind this refusal disingenuous;  and (3) the unique circumstances of Mountain Solutions' case renders strict application  of the second down payment rule inequitable and contrary to  the public interest.

According to the Commission's rule:

10
Waivers will not be granted except upon an affirmative showing:


11
(i) That the underlying purpose of the rule will not be served, or would befrustrated, by its application in a particular case, and that grant of the waiver is other wise in the public interest;  or


12
(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.  Applicants must also show the lack of a reason-able alternative.


13
47 C.F.R.  24.819(a)(1)(i), (ii) (1996).8  Under the Administrative Procedure Act, the court must " 'hold unlawful and set  aside agency action' that is 'arbitrary, capricious, an abuse of  discretion, or otherwise not in accordance with law.' "  BellSouth Corp. v. F.C.C., 162 F.3d 1215, 1221 (D.C. Cir. 1999)  (quoting 5 U.S.C.  706(2)(A)).  As to waiver of agency rules,  however, the agency's strict construction of a general rule in  the face of waiver requests is insufficient evidence of an abuse  of discretion.  See, e.g., BellSouth, 162 F.3d at 1225.  Instead,  "an agency's refusal to grant a waiver will not be overturned  unless the agency's reasons are 'so insubstantial as to render  that denial an abuse of discretion.' "  Green Country Mobile phone, Inc. v. F.C.C., 765 F.2d 235, 238 (D.C. Cir. 1985)  (quoting Thomas Radio Co. v. F.C.C., 716 F.2d 921, 924 (D.C.  Cir. 1983)).  "[T]his burden is a heavy one ..." but "it is  carried when an agency arbitrarily waives a deadline in one  case but not in another."  Id. (citing WAIT Radio v. F.C.C.,  459 F.2d 1203, 1207 (D.C. Cir. 1969));  see also BellSouth, 162  F.3d at 1222.  Mountain Solutions contends it has met this  burden, focusing primarily upon the fact that, of the high  bidders in the original C block auction which requested  waiver of the second down payment deadline, only it was  denied a waiver.


14
Mountain Solutions' contention that it was treated arbitrarily and capriciously is unpersuasive.  Of the bidders  granted partial waivers, only Mountain Solutions (by its own  admission) lacked funds to make the second down payment on  the due date (or one day later).  Indeed, when the Bureau  was initially confronted with a similar circumstance by Carolina PCS I Limited Partnership, the Bureau denied its  waiver request.  The Bureau reversed itself only after Carolina had submitted affidavits indicating that it had a firm  financial commitment from its lending institution equal to the  amount of its second down payment on or about the due  date.9  See In the Matter of Carolina PCS I Ltd. Partnership Request for Waiver of Section 24.711(a)(2) of the Comm'n's  Rules, 12 F.C.C.R. 22938, p 14 (1997).  Mountain Solutions,  by contrast, had no firm financial commitment as of the  September 24th due date.  Although Mountain Solutions, like  Carolina, sought to allay Commission concerns about financial  viability by proffering a firm financing commitment, the  salient distinction remains:  Carolina had adequate financing  to make a timely second down payment on the due date; Mountain Solutions did not.  The Bureau repeatedly relied in  its February 4th orders granting partial waivers to other  bidders on the Commission's position that


15
the integrity and functioning of the auction process is dependent on having payment obligations on winning bids promptly met.  Timeliness of such payments is a necessary indication to the Commission that the winning bidder is financially able to meet its obligations on the license and intends to use the license for the provision of services to the public.  In the Second Report and Order in the competitive bidding docket, the Commission noted that this requirement would also deter defaults by discouraging insincere or financially unqualified bidders from 'shopping' a winning bid in order to obtain financing for a down payment.


16
Southern Communications Systems, Inc, 12 F.C.C.R. 1532  p 6.  Other bidders receiving waivers demonstrated their  financial qualifications both by the circumstances surrounding  the failure to meet that payment deadline and by tendering  payment immediately upon being notified of their delinquency  or mistake.  See, e.g., Long street Communications, 12  F.C.C.R. 1549, p 7;  Roberts-Roberts, 12 F.C.C.R. 1825, p 7.By contrast, the Commission noted, "Mountain Solutions has  failed to demonstrate its financial viability at the time its  second down payment was due."  Commission Order, 13  F.C.C.R. 21983, p 16.


17
For these reasons, the rationale articulated by the Commission is not so insubstantial as to render its denial of Mountain  Solutions' waiver request an abuse of discretion.  See, e.g., BellSouth, 162 F.3d at 1222.  Given the salient distinction  relied on by the Commission and supported by the record  between the circumstances surrounding Mountain Solutions'  failure to meet its second down payment obligation and those  surrounding the failure of other bidders granted partial waivers, this is not a case in which the Commission has failed to  explain its different treatment of similarly situated parties. See Melody Music v. F.C.C., 345 F.2d 730, 732 (D.C. Cir.  1965).  Having established a more lenient payment structure  for designated entities, which by definition usually faced  problems of accessing financial resources, the Commission  could reasonably focus on the importance of meeting payment  deadlines to deter such entities from abusing the lenient  structure by " 'shop[ping]' a winning bid in order to obtain  financing for a payment."  Commission Order, 13 F.C.C.R.  21983, p 17.  The Commission also could reasonably rely on  strict enforcement of the deadlines to provide an "early  warning" that a winning bidder unable to comply with the  payment deadlines may be financially unable to meet its  obligation to provide service to the public.  See id.


18
Mountain Solutions' reliance upon the Commission's decision to allow NextWave to use proceeds acquired in violation  of statutory foreign ownership limitations to meet its second  down payment is somewhat misplaced.  The Commission  granted NextWave's application conditioned on implementation of a restructuring plan that would bring NextWave into  compliance with the Commission's foreign ownership rules.In granting an extension of time, the Commission took into  consideration the fact that external events might well cause it  to revise its ownership rules.  While Mountain Solutions and  NextWave were both seeking an exception from Commission  rules, granting a waiver by allowing a timely down payment  in violation of foreign ownership restrictions entails a different set of considerations than those involved in the decision to  waive a payment deadline while a bidder secures financing. Thus, NextWave does not appear any more similarly situated  to Mountain Solutions than do those licensees who were  granted second down payment deadline waivers in light of the  inadvertence of their mistakes.


19
More problematic is Mountain Solutions' contention that  the Commission's restructuring proceeding, while Mountain  Solutions' waiver request was pending, was a de facto waiver  of its C block obligations, effectively designed to assure that  no C block bidder would find itself in Mountain Solutions'  situation.  The Commission received numerous requests for  some form of debt relief.10  As part of the restructuring proceeding, the Commission afforded licensees three alternatives to continuing to make payments for the licenses.  The  alternatives were designed to "provide limited relief for C  block licensees having difficulty meeting their financial obligations to the Commission...."11  Thus, Mountain Solutions  asserts, all C block bidders were given an amnesty option,  under which they could return their C block licenses and face  no additional monetary penalties from the Commission, or at  most a 10% penalty, while Mountain Solutions was offered no  similar relief.  Although, as Mountain Solutions concedes in  its brief, not all of the entities that took advantage of the  relief offered under the restructuring had filed waiver requests, Mountain Solutions notes that all other licensees that  had missed their second payment deadlines and received waivers were allowed to make elections.  Consequently,  Mountain Solutions contends that the Commission abused its  discretion by offering C block licensees amnesty, with a  relatively modest penalty, while refusing to allow Mountain  Solutions additional time to submit its second down payment,  leaving it potentially liable for substantial default penalties.


20
There remains, nonetheless, the salient distinction that only  Mountain Solutions, unlike the licensees granted restructuring relief, was in default for missing its second down payment  at the time of the restructuring.  As the Commission noted in  its Order denying Mountain Solutions' application for review,  the entities offered restructuring relief "had met their second  down payment obligations, bec[o]me licensees, and signed  note and security agreements with the Commission."  Commission Order, 13 F.C.C.R. 21983, p 23.


21
Furthermore, contrary to Mountain Solutions' contention,  the Commission did not improperly articulate a new rule in  distinguishing between Mountain Solutions and the entities  granted partial waivers.  Mountain Solutions maintains that  the "determinative factor" in granting waivers was the late  tendering of payment, and that Mountain Solutions was disadvantaged because it was unaware of this "rule".  As noted,  however, in granting waivers the Bureau relied primarily on  the inadvertent nature of the mistakes causing the missed  deadline;  the late tendering of payment was an additional but  not a determinative factor in demonstrating the financial  viability of the bidders.  See, e.g., Longstreet Communications, 12 F.C.C.R. 1549, p 7;  Roberts-Roberts, 12 F.C.C.R.  1825, p 7.  To the extent that Mountain Solutions contends  that the Bureau was obliged to provide notice before giving  weight, in considering a waiver petition, to a bidder's access  to funds as of the second down payment date, the contention  is unpersuasive.  The Commission has long noted the importance it attaches to timely payment.12


22
Mountain Solutions' contention that the Commission abused  its discretion by not giving Mountain Solutions the benefit of  two rule changes made subsequent to the filing of Mountain  Solutions' waiver petition is also unpersuasive.  In February  1997, the Commission extended the deadline for second down  payments from five to ten business days following license  approval.  See 47 C.F.R. §§ 24.711(a)(1)(2) (1998), 1.2107(b),  1.2109(a).  In December 1997, after having denied Mountain  Solutions' waiver request in September, the Commission  adopted a rule allowing an additional ten-business-day grace  period for second down payments, albeit with a 5% penalty.47 C.F.R. §§ 24.711(a)(1)(2) (1998), 1.2107(b), 1.2109(a).  In  explaining these changes, the Commission "recognize[d] that  applicants may encounter certain difficulties when trying to  arrange financing and make substantial payments under  strict deadlines."  In the Matter of Amendment of Part I of  the Comm'n's Rules, 12 F.C.C.R. 5686, p 61 (1997).  Because  rulemakings are generally prospective, MCI v. F.C.C., 10 F.3d   842, 846 (D.C. Cir. 1993);  see also, e.g., AT & T v. F.C.C., 978  F.2d 727, 732 (D.C. Cir. 1993);  Gersman v. Group Health  Ass'n., Inc., 975 F.2d 886, 897-98 (D.C. Cir. 1992), there  would appear to be no basis for the court to fault the  Commission for failing to give Mountain Solutions the benefit  of its new rule.  Furthermore, had the Commission applied  its more lenient payment rule retroactively, Mountain Solutions still would not have gained the thirty days that it  requested in its emergency petition for a waiver.  Even  assuming that Mountain Solutions may have come within the  new twenty-business-day grace period as a consequence of its  October 17, 1997, supplemental filing, the Commission did not  abuse its discretion in refusing to deem as a sufficient basis  for waiver Mountain Solutions' inability to secure financing as  of the deadline then in effect.


23
Finally, Mountain Solutions contends that application of the  second down payment rule to it will not serve the purposes of  the rule "to deter default and ensure that winning bidders are  sincere and have the financial capability to build out their  systems," that the grant of Mountain Solutions' waiver would  have been in the public interest, and that the circumstances  surrounding Mountain Solutions' waiver, including the treatment accorded purportedly "similarly situated" bidders and  the devaluation of the licenses at issue, demonstrate that the  Commission's denial of a waiver was arbitrary and capricious. With regard to devaluation, Mountain Solutions maintained in  its request for reconsideration that the terms of the reauctioning procedures were likely to result in lower bids, thereby  increasing the amount of any default penalty.13  Mountain Solutions represents in its brief that seven of its licenses were  sold in the reauction for between 5% and 9.75% of the net  price Mountain Solutions had bid in the initial auction.  This  means, Mountain Solutions asserts, that it could be subject to  nearly $18 million in default penalties.  See 47 C.F.R.  §§ 24.704(a)(2) and 1.2104(g)(2).


24
Parsing each of Mountain Solutions' contentions for its  flaws does not detract from their combined strength, nor  from the possibility that the Commission could have viewed  Mountain Solutions' waiver request differently than it did. The relief Mountain Solutions sought was not violative of  other rules, as, for example, in the case of NextWave.  Mountain Solutions in fact secured the financing it needed within  the thirty-day period it requested in petitioning for a waiver  of the payment deadline, and, following the February 4th  orders granting partial waivers, it proffered an irrevocable  letter of credit adequate to cover the second down payment,  plus a 5% late payment penalty.  As in the Carolina case,  there was confusion among Mountain Solutions' potential  investors about what the anti-collusion guidelines permitted. See supra n.1.  Furthermore, Mountain Solutions maintains  that its investors were uncertain whether a late-tendered  second down payment would be accepted or seized in satisfaction of default penalties.  It also was unclear to bidders how they should proceed;  Carolina, for example, was told not to  submit a late payment but to place funds in an escrow  account.  Likewise, with respect to financial viability, submission of an irrevocable letter of credit might well afford  assurances comparable to escrowed funds.14


25
Because Mountain Solutions' bid occurred in the first auction under newly established procedures, there is nothing of  record to indicate that bidder or investor confusion constituted either bad faith or the type of misuse of licenses that was  of concern to the Commission.  Indeed, the Commission  eventually recognized in establishing a more extensive grace  period that its second down payment rule required more  flexibility.  Under the new grace periods, Mountain Solutions  apparently would have been able to make a timely second  payment.  Inasmuch as Mountain Solutions was confronted  with the type of difficulty in financing that Congress had  anticipated and that the Commission acknowledged in establishing special procedures, and because the Commission came  to acknowledge that a more flexible payment schedule was  necessary and not inconsistent with other policy goals, the  Commission would have acted within its discretion to grant  Mountain Solutions a partial waiver.


26
To conclude that the Commission abused its discretion in  denying Mountain Solutions a waiver, however, would require  retroactive application of the Commission's second ten-day  grace period, an unusual procedure for rulemaking, see, e.g.,  MCI v. F.C.C., 10 F.3d at 846, and thus hardly a basis to find an abuse of discretion here.  Nothing suggests that the  Commission would have been any more receptive to waiver  requests based upon inability to secure payment for failure to  meet its revised payment deadlines than it was to such  requests under its original deadline rules.  In amending its  payment rule the Commission continued to associate strict  enforcement of payment deadlines with preservation of "the  integrity of the auction and licensing process by ensuring that  applicants have the necessary financial qualifications."Amendment of Part I of the Comm'n's Rules, 12 F.C.C.R.  5686, p 61.  As a result, finding an abuse of discretion would  not be based on an alteration of the Commission's approach  toward payment deadlines, but rather would amount to a  requirement that the Commission make retroactive the exact  number of grace period days presently allowed.


27
The abuse of discretion standard presents a heavy burden  for a petitioner in this court.  See, e.g., BellSouth, 162 F.3d at  1222.  Recognizing the limits of our proper role, see WOKO,  329 U.S. at 228, the court has defined the outer limits of such  discretion but left to the decision-maker the determination of  which of the permissible alternative outcomes should apply in  a particular case.  Cf. Kickapoo Tribe of Indians of the  Kickapoo Reservation in Kansas, et al. v. Babbitt, 43 F.3d  1491, 1497 (D.C. Cir. 1995).  Because the Commission explained its reasoning in denying Mountain Solutions' waiver  request, gave fair notice of the importance it attached to  meeting payment dates, and acted consistently under the then  applicable procedures, we hold that it did not abuse its  discretion in denying Mountain Solutions' waiver request.15

III.

28
The default penalty rule provides that "when a winning  bidder defaults on a license, the bidder becomes subject to a  default payment equal to the difference between the amount  bid and the winning bid the next time the license is offered by  the Commission, plus a payment equal to three percent of the  subsequent winning bid or the amount bid, whichever is  lower."  Commission Order, 13 F.C.C.R. 21983, p 24 (citing  47 C.F.R. §§ 24.704(a)(2), 1.2104(g)(2)).  In denying Mountain  Solutions' application for review of the Bureau's denial of its  waiver request, the Commission noted first, that it "will  assess an initial default deposit of between three percent and  twenty percent of the defaulted bid amount where a winning  bidder of licensee defaults and the defaulted license has yet to  be reauctioned," and second, that, "[i]f additional payment is  required, following the reauction of licenses, a second order  will assess such payment."  Commission Order, 13 F.C.C.R.  21983, p p 24-25.  No second order is in the record before the  court.  While Mountain Solutions did not seek reconsideration of the denial, it did seek reconsideration of the Fourth  Report and Order on reauctioning procedures.16  See supra  n. 13.


29
Mountain Solutions contends that it should not be liable for  any default penalties based on the price paid for its licenses  at reauction.  Because, in its view, the Commission has  granted a de facto waiver of the default penalty rules as they  relate to prices subsequently bid at reauction to every other C block applicant that timely made its first payment, the  Commission's restructuring of C block debt and allowing C  block licensees to return some or all of their license without  default penalties "indicates how inequitable it would be for  the [Commission] to strictly enforce its default penalty rules  against [Mountain Solutions]."  Further, Mountain Solution  maintains, the Commission's restructuring of the C block  auction process "dictate[d] lower spectral values on any  reauction occurring subsequent to those changes," and its  promulgation of the default penalty rules never considered  that bidders would be subject to spectral devaluation caused  by a post-auction restructuring of the process.  Without  benefit of the Commission's analysis, Mountain Solutions'  position that it should not be liable for a default penalty  created in part by the Commission's decision to change the  rules for reauction after Mountain Solutions had been a  successful bidder under a prior regime, has some persuasive  force.  But therein lies the problem;  we have yet to hear  from the Commission.


30
Indeed, the Commission responds that Mountain Solutions'  request for injunctive relief is not ripe.  The Commission  explains that:


31
[it] has not issued any order imposing [any portion of the default penalty beyond the initial 3% penalty assessed] on Mountain Solutions.  There is no administrative order to which Mountain Solutions must comply, nor does Mountain Solutions face any sanctions for non-compliance.


32
Acknowledging that no order imposing the balance of the  default penalties has issued, Mountain Solutions protests that  this is purely a ministerial matter given the Commission's  statements of intent (in other proceedings), and that the  denial of a waiver, combined with the reauction of seven of  Mountain Solutions' licenses at specified prices, provides sufficient basis for the court to grant equitable relief.


33
We take the Commission at its word.  While the Commission's order denying Mountain Solutions' waiver request implied that Mountain Solutions ultimately could be liable for  the difference in amount between its own winning bids and  the winning bids upon reauction, Commission Order, 13  F.C.C.R. 21983, p p 24-25, the Commission did not state that  this necessarily would be the case.  Rather, the Commission  required Mountain Solutions to pay a 3% penalty prior to the  reauction of its licenses, and stated only that "[i]f additional  payment is required, following the reauction of licenses, a  second order will assess such payment."  Id. at p 25.  To  date, no such order has issued.  Nor has the Commission  suggested that it is without authority to waive all or a part of  Mountain Solutions' potential default penalties.17  Consequently, the question of whether equitable relief may be  granted is not ripe.  See, e.g., Diamond Shamrock Corp. v.  Costle, 580 F.2d 670, 673 (D.C. Cir. 1978).


34
Accordingly, we deny the petition insofar as it challenges  the denial of the waiver request and we dismiss as unripe that  part of the petition seeking injunctive relief.



Notes:


1
  Specifically, Mountain Solutions asserted that "Mountain Solutions' investors are bidders in the D, E and F block auction," and  that the Commission's anti-collusion guidelines were "confusing and  unclear regarding the extent to which bidders in the D, E and F  block auction could enter into business-related discussions with C  block auction winners."


2
  See In the Matter of Cenkan Towers, L.L.C. Request for  Waiver of Section 90.811 of the Comm'n's Rules, 12 F.C.C.R. 1516,  p p 5-8 (1997);  In the Matter of CSS Communications Co. Request  for a Waiver of Section 90.811 of the Comm'n's Rules, 12 F.C.C.R.  1507, p p 5-8 (1997);  Elec. SMR Communication Services Request  for Waiver of Section 90.811 of the Comm'n's Rules, 12 F.C.C.R.  1520, p p 5-8 (1997);  In the Matter of Hickory Telephone Co., Inc.  Request for Waiver of Section 90.811 of the Comm'n's Rules, 12  F.C.C.R. 1528, p p 5-8 (1997);  In the Matter of Independence  Excavating, Inc. Request for Waiver of Section 90.811 of the  Comm'n's Rules, 12 F.C.C.R. 1524, p p 5-8 (1997);  In the Matter of  The Wireless, Inc. Request for Waiver of Section 90.811 of the  Comm'n's Rules, 12 F.C.C.R. 1821, p p 5-8 (1997).


3
  See In the Matter of Roberts-Roberts & Associates, LLC  Request for Waiver of Section 24.711(a)(2) of the Comm'n's Rules, 12 F.C.C.R. 1825, p p 2, 5-8 (1997);  In the Matter of RFW, Inc.  Request for Waiver of Section 24.711(a)(2) of the Comm'n's Rules,  12 F.C.C.R. 1536, p p 2, 5-8 (1997).


4
  See In the Matter of Longstreet Communications Int'l., Inc.  Request for Waiver of Section 24.711(a)(2) of the Comm'n's Rules,  12 F.C.C.R. 1549, p p 2, 5-8 (1997);  In the Matter of Southern  Communications Systems, Inc. Request for Waiver of Section  24.711(a)(2) of the Comm'n's Rules, 12 F.C.C.R. 1532, p p 2, 5-8  (1997);  In the Matter of Wireless Telecommunications Company  Request for Waiver of Section 24.711(a)(2) of the Comm'n's Rules,  12 F.C.C.R. 1544, p p 2, 5-8 (1997);  In the Matter of AMK International Inc. and Mobilecall, Inc. Requests for Waiver of Section  90.811 of the Comm'n's Rules, 12 F.C.C.R. 1511, p p 5-8 (1997).


5
  In the Matter of MFRI, Inc. Request for Waiver of Section  24.711(a)(2) of the Comm'n's Rules, 12 F.C.C.R. 1540, p p 2, 5-8  (1997);  In the Matter of Paradise Cable, Inc. Request for Waiver of  Section 21.955(B) of the Comm'n's Rules, 12 F.C.C.R. 9760, p p 6-8  (1997).


6
  See, e.g., Longstreet Communications, 12 F.C.C.R. 1549, p 6  (quoting Implementation of Section 309(j) of the Communications  Act--Competitive Bidding, PP Docket No. 93-253, Second Report  and Order, 9 F.C.C.R. 2348, 2382 (1994));  Roberts-Roberts, 12  F.C.C.R. 1825, p 6 (same).


7
  See, e.g., Longstreet Communications, 12 F.C.C.R. 1549, p 7;Roberts-Roberts, 12 F.C.C.R. 1825, p 7.


8
  Section 24.819 since has been replaced by 47 C.F.R.  1.925  (1999).


9
  Carolina petitioned for a waiver rather than making a late  payment due to "investor uncertainty about the terms under which  a payment might be accepted."  Id. p 15.


10
  See In the Matter of Amendment of the Comm'n's Rules  Regarding Installment Payment Fin. For Personal Communications Services (PCS) Licensees, Second Report and Order and  Further Notice of Proposed Rulemaking, 12 F.C.C.R. 16436, p p 11,  14-15 (1997) ("Restructuring Order").  Some C block auction winners had been able to make timely first and second down payments,  or had successfully obtained waivers in that regard, but faced  financial difficulties in complying with the terms of the ten-year  schedule for paying the balance due.  Id.


11
  Restructuring Order, 12 F.C.C.R. 16436, p 6.  The three  alternatives were:  (1) Disaggregation:  returning 15 MHz of PCS  spectrum to the Commission with a corresponding 50% reduction in  outstanding debt;  (2) Amnesty:  returning PCS licenses to the  Commission with forgiveness of all outstanding C Block debt;  and  (3) Prepayment:  applying 70% of the down payment amount from  surrendered licenses toward prepayment of any remaining licenses,  as well as the ability to use any additional financing to prepay any  licenses.  Id.


12
  As early as its Second Report and Order, In the Matter of  Implementation of Section 309(j) of the Communications Act,  Second Report & Order, 9 F.C.C.R. 2348 (1994) ("Second Report  and Order"), the Commission explained that a timely down payment  requirement would deter defaults "by discouraging insincere or  financially unqualified bidders from 'shopping' a winning bid in  order to obtain financing for a down payment."  Longstreet Communications, 12 F.C.C.R. 1549, p 6 (citing Second Report and  Order, 9 F.C.C.R. at 2382).  Contrary to Mountain Solutions' contention, such concerns were not limited to the timely submission by  bidders of a first down payment;  the Second Report and Order  noted generally that "strong incentives," such as deadlines and  penalties for down payments, "must be in place to deter frivolous  bids or unqualified bidders...."  9 F.C.C.R. 2348, p 197.  In any  event, even if the Commission had not previously articulated the  policy rationale that formed the primary basis for granting or  denying the waiver requests, the Commission's exercise of its wide  discretion in denying Mountain Solutions' waiver request on this  rationale, which was clearly and evenhandedly articulated in the  February 4th orders granting partial waivers and in the denial of  Mountain Solutions' request, was in the nature of an adjudicatory  decision rather than the announcement of a new rule.  See, e.g.,  F.C.C. v. WOKO, Inc., 329 U.S. 223, 227-228 (1946);  City of Chicago  v. Fed. Power Comm'n, 385 F.2d 629. 647-638 (D.C. Cir. 1967);Leedom v. Int'l Brotherhood of Elec. Workers, Local Union No.  108, 278 F.2d 237, 241-244 (D.C. Cir. 1960).


13
  See Mountain Solutions' Petition for Reconsideration of the  Fourth Report and Order at 2, In the Matter of Amendment of the  Comm'n's Rules Regarding Installment Payment Financing for  Personal Communications Services (PCS) Licenses (WT Docket  No. 97-82).  Mountain Solutions contended that the C block licenses  had been "devalued" because (1) the Commission had changed the  financing options available to C-block bidders, (2) market conditions  had changed, and (3) the reauction did not include licenses held by  successful C block bidders in the initial auction that were in  bankruptcy proceedings.  Id. at 3-6.  Mountain Solutions contended that the Commission had contributed to the "devaluation" of the  C block licenses by deciding not to offer bidders in the C block  reauction the option of paying for their licenses on an installment  basis.  See In the Matter of Amendment of the Comm'n's Rules  Regarding Installment Payment Fin., Fourth Report and Order,  13 F.C.C.R. 15743, p 50 (1998).
In the Fourth Report and Order, the Commission had recognized  that conditioning receipt of a license upon full payment would  require that a bidder have greater resources than had been the case  in auctions in which installment financing was available.  See id.  Mountain Solutions contended that an additional impact would be  that bids would be lower because bidders could bid a greater  amount if payment could be made over time rather than in one  lump sum.  See Mountain Solutions' Petition for Reconsideration at  3.


14
  Mountain Solutions indicated that its proffered letter of  credit would have been irrevocable for thirty days and could  immediately have been drawn upon by Mountain Solutions for  payment to the Commission upon the grant of Mountain Solutions'  licenses.  While the Commission distinguished a letter of credit  from the placing of funds into an escrow account on the basis that  Mountain Solutions did not actually relinquish control of the funds  so that they could have been drawn upon absent action by Mountain  Solutions, the letter of credit would nonetheless have demonstrated  Mountain Solutions' ability to pay the required funds.  See, e.g.,  U.C.C.  5-103(1)(a) (1999);  50 Am. Jur.2d Letters of Credit  3  (1992);  Black's Law Dictionary 813-814 (5th ed. 1979).


15
  Because we do not find the Commission's denial of its waiver  request arbitrary and capricious, we need not address the question  of remedy.  Thus, we do not reach Mountain Solutions' contention  that rescission of its bids from the original auction and return of  any monies paid for the licenses on which it bid is appropriate in  view of the devaluation of bids for its licenses and the fundamental  restructuring relief afforded to others.  Furthermore, if remedy  were at issue, we would not address Mountain Solutions' request for  rescission because this relief was not sought from the Commission; nor was the argument presented to the Commission in relation to the order under review.  United Transp. Bd. v. Surface Transp.  Bd., 114 F.3d 1242, 1244 (D.C. Cir. 1997);  47 U.S.C.  405(a).


16
  On November 12, 1998, the Bureau announced its intent to  include Mountain Solutions' licenses in a reauction on March 23,  1999.  Mountain Solutions states in its brief on appeal that it filed  an application for review, which was pending at time of briefing in  the court.  Mountain Solutions also filed petitions with the Commission and in this court seeking a stay of the reauction.  The petition  before the Commission remained pending as of briefing, and the  court denied the request.  See Mountain Solutions v. FCC, 1999  WL 229027 (D.C. Cir. Mar. 22, 1999).


17
  See 47 CFR  1.2104(g)(2);  24.704(a)(2).


