PUBLIC NOTICE News Media Information 202 / 418-0500 Internet: http://www.fcc.gov TTY: 1-888-835-5322 Federal Communications Commission 445 12th St., S.W. Washington, D.C. 20554 DA 09-810 April 17, 2009 AUCTION OF FM BROADCAST CONSTRUCTION PERMITS SCHEDULED FOR SEPTEMBER 1, 2009 NOTICE AND FILING REQUIREMENTS, MINIMUM OPENING BIDS, UPFRONT PAYMENTS, AND OTHER PROCEDURES FOR AUCTION 79 AU Docket No. 09-21 TABLE OF CONTENTS Heading Paragraph # I. GENERAL INFORMATION................................................................................................................. 1 A. Introduction...................................................................................................................................... 1 1. Construction Permits to be Offered in Auction 79 .................................................................... 2 B. Rules and Disclaimers...................................................................................................................... 5 1. Relevant Authority .................................................................................................................... 5 2. Prohibition of Collusion and Compliance with Antitrust Laws ................................................ 7 3. Due Diligence.......................................................................................................................... 21 4. Use of Integrated Spectrum Auction System .......................................................................... 29 5. Fraud Alert............................................................................................................................... 30 6. Environmental Review Requirements..................................................................................... 31 C. Auction Specifics ........................................................................................................................... 32 1. Auction Start Date ................................................................................................................... 32 2. Auction Title............................................................................................................................ 35 3. Bidding Methodology.............................................................................................................. 36 4. Pre-Auction Dates and Deadlines............................................................................................ 37 5. Requirements for Participation................................................................................................ 38 II. SHORT-FORM APPLICATION (FCC FORM 175) REQUIREMENTS........................................... 39 A. General Information Regarding Short-Form Applications ............................................................ 39 B. Permit Selection............................................................................................................................. 44 C. New Entrant Bidding Credit .......................................................................................................... 46 D. Application Requirements.............................................................................................................. 55 1. Bidding Credits........................................................................................................................ 56 2. Installment Payments............................................................................................................... 58 E. Disclosure of Bidding Arrangements............................................................................................. 59 F. Ownership Disclosure Requirements............................................................................................. 62 G. Provisions Regarding Former and Current Defaulters................................................................... 64 H. Optional Applicant Status Identification........................................................................................ 70 I. Minor Modifications to Short-Form Applications ......................................................................... 71 J. Maintaining Current Information in Short-Form Applications...................................................... 77 Federal Communications Commission DA 09-810 2 III. PRE-AUCTION PROCEDURES......................................................................................................... 79 A. Auction Seminar – June 16, 2009 .................................................................................................. 79 B. Short-Form Applications – Due Prior to 6:00 p.m. ET on June 25, 2009...................................... 82 C. Application Processing and Minor Corrections ............................................................................. 85 D. Upfront Payments – Due July 31, 2009 ......................................................................................... 89 1. Making Upfront Payments by Wire Transfer.......................................................................... 90 2. FCC Form 159......................................................................................................................... 93 3. Upfront Payments and Bidding Eligibility .............................................................................. 94 E. Auction Registration .................................................................................................................... 102 F. Remote Electronic Bidding.......................................................................................................... 106 G. Mock Auction – August 28, 2009................................................................................................ 108 IV. AUCTION EVENT ............................................................................................................................ 109 A. Auction Structure ......................................................................................................................... 110 1. Simultaneous Multiple Round Auction ................................................................................. 110 2. Eligibility and Activity Rules................................................................................................ 113 3. Auction Stages....................................................................................................................... 117 4. Stage Transitions ................................................................................................................... 122 5. Activity Rule Waivers ........................................................................................................... 124 6. Auction Stopping Rules......................................................................................................... 129 7. Auction Delay, Suspension, or Cancellation......................................................................... 135 B. Bidding Procedures...................................................................................................................... 137 1. Round Structure..................................................................................................................... 137 2. Reserve Price and Minimum Opening Bids .......................................................................... 139 3. Bid Amounts.......................................................................................................................... 142 4. Provisionally Winning Bids .................................................................................................. 148 5. Bidding .................................................................................................................................. 151 6. Bid Removal and Bid Withdrawal......................................................................................... 157 7. Round Results........................................................................................................................ 159 8. Auction Announcements ....................................................................................................... 161 V. POST-AUCTION PROCEDURES .................................................................................................... 162 A. Down Payments ........................................................................................................................... 163 B. Final Payments............................................................................................................................. 164 C. Long-Form Application (FCC Form 301).................................................................................... 165 D. Default and Disqualification ........................................................................................................ 166 E. Refund of Remaining Upfront Payment Balance......................................................................... 169 VI. CONTACT INFORMATION ............................................................................................................ 171 Attachment A: Construction Permits to Be Auctioned .............................................................................A-1 Attachment B: Short-Form Application (FCC Form 175) Filing Instructions.......................................... B-1 Attachment C: Auction-Specific Instructions for FCC Remittance Advice (FCC Form 159).................. C-1 Attachment D: Summary Listing of Judicial, Commission and Bureau Documents Addressing Application of the Anti-Collusion Rule..............................................................................................D-1 Attachment E: Auction 79 Seminar Registration Form…………………………………………………E-1 I. GENERAL INFORMATION A. Introduction 1. By this Public Notice, the Wireless Telecommunications Bureau (“WTB”) and the Media Bureau (“MB”) (collectively, the “Bureaus”) announce the procedures and minimum opening bid amounts for the upcoming auction of certain FM broadcast construction permits. This auction, which is designated as Auction 79, is scheduled to commence on September 1, 2009. On February 27, 2009, in Federal Communications Commission DA 09-810 3 accordance with Section 309(j)(3) of the Communications Act of 1934, as amended,1 the Bureaus released a public notice seeking comment on competitive bidding procedures to be used in Auction 79.2 Interested parties submitted three comments and four reply comments in response to the Auction 79 Comment Public Notice.3 1. Construction Permits to be Offered in Auction 79 2. Auction 79 will offer 122 construction permits in the FM broadcast service as listed in Attachment A. The construction permits to be auctioned are for 122 new FM allotments, and include construction permits for three FM allotments that were defaulted on after a previous auction, and a construction permit for one FM allotment that was offered but not sold in Auctions 37 and 62. These construction permits are for vacant FM allotments, reflecting FM channels assigned to the FM Table of Allotments (“Table”),4 pursuant to the Commission’s established rulemaking procedures, and are designated for use in the indicated communities. 3. L. Topaz Enterprises, Inc. (“LTE”) requests that we add construction permits for two vacant allotments, Channels 274C3 and 284C3 at Elko, Nevada, to the Auction 79 inventory. Both allotments were added to the Table by a Report and Order released October 10, 2008.5 Briarwood Media (“Briarwood”) goes farther than LTE in urging that the Bureaus add to this auction all new FM allotments approved in a specified rulemaking proceeding.6 Furthermore, several other parties have made inquiries regarding certain vacant allotments. FM allotments are auctioned in the order they are added to the Table, with older allotments being auctioned before more recently added ones. There are many allotments awaiting auction that were added to the Table before the two allotments that LTE has suggested be auctioned, thus we deny LTE’s request that we include these two recently added allotments to the Auction 79 inventory, as we deny Briarwood’s larger requested addition.7 4. Pursuant to the policies established in the Broadcast Competitive Bidding First Report and Order, applicants may apply for any vacant FM allotment listed in Attachment A.8 When two or more 1 47 U.S.C. § 309(j)(3)(E)(i) (requirement to seek comment on proposed auction procedures); see also 47 U.S.C. § 309(j)(4)(F) (authorization to prescribe reserve price or minimum bid); 47 C.F.R. §§ 1.2104(c) and (d). 2 “Auction of FM Broadcast Construction Permits Scheduled for September 1, 2009; Comment Sought on Competitive Bidding Procedures For Auction 79,” Public Notice, DA 09-422 (rel. Feb. 27, 2009) (“Auction 79 Comment Public Notice”). A summary of this public notice was published at 74 Fed. Reg. 10578 (March 11, 2009). 3 L. Topaz Enterprises, Inc., Eric A. Williams, and Mullaney Engineering, Inc. filed comments. Briarwood Media, the Minority Media and Telecommunications Council, Easy Living Magizine [sic], and Sutton Radiocasting Corporation filed reply comments. These comments and reply comments are available at AU Docket No. 09-21 in the Commission’s Electronic Comment Filing System (ECFS). 4 47 C.F.R. § 73.202(b). 5 Elko, Nevada, Report and Order, DA 08-2256, 23 FCC Rcd 14724 (MB 2008). 6 See Revision of Procedures Governing Amendments To FM Table of Allotments and Changes of Community of License in the Radio Broadcast Services, MB Docket No. 05-210, Report and Order, FCC 06-163, 21 FCC Rcd 14212 (2006). 7 In its reply comments, Easy Living Magizine [sic] appears to be requesting that an unproposed and unapproved allotment for a “low powered FM Television Station” be added to the inventory for this auction. See Reply Comment to Auction 79 of Easy Living Magizine, filed April 1, 2009. A request for a Low Power Television station allotment or construction permit is beyond the scope of this proceeding, which is confined to developing competitive bidding procedures for an FM auction. 8 See Implementation of Section 309(j) of the Communications Act – Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Service Licenses, MM Docket No. 97-234, First Report and Order, FCC 98-194, 13 FCC Rcd 15920, 15923-25 ¶ 7-12 (1998) (“Broadcast First Report and Order”), Memorandum (continued….) Federal Communications Commission DA 09-810 4 short-form applications (FCC Form 175) specifying the same FM allotment are accepted for filing, mutual exclusivity (“MX”) exists for auction purposes,9 and thus, that construction permit for the FM allotment will be awarded by competitive bidding procedures.10 Once mutual exclusivity exists for auction purposes, even if only one applicant for a particular construction permit submits an upfront payment, that applicant is required to submit a bid in order to obtain the construction permit.11 B. Rules and Disclaimers 1. Relevant Authority 5. Prospective applicants must familiarize themselves thoroughly with the Commission’s general competitive bidding rules, including recent amendments and clarifications, as well as Commission decisions in proceedings regarding competitive bidding procedures, application requirements, and obligations of Commission licensees.12 Broadcasters should also familiarize themselves with the Commission’s rules relating to the FM broadcast service contained in 47 C.F.R. §§ 73.201 – 73.333 and 73.1001 – 73.5009. Prospective bidders must also be familiar with the rules relating to broadcast auctions and competitive bidding proceedings contained in 47 C.F.R. §§ 1.2001 – (Continued from previous page) Opinion and Order, FCC 99-74, 14 FCC Rcd 8724 (1999) (“Broadcast First Reconsideration Order”), Memorandum Opinion and Order, FCC 99-201, 14 FCC Rcd 12541 (1999), aff’d, Orion Communications Ltd. v. FCC, 221 F.3d 196, No. 98-1424, slip op. (D.C. Cir. June 13, 2000) (unpublished opinion available at 2000 WL 816046 (D.C. Cir.), aff’d, Orion Communications Ltd. v. FCC, 213 F.3d 761 (D.C. Cir. 2000). Attachment A also lists the reference coordinates for each vacant FM allotment. With regard to the FM service, the Commission gave applicants the opportunity to submit a set of preferred site coordinates as an alternative to the reference coordinates for the vacant FM allotment upon which they intend to bid. Further information regarding preferred site coordinates may be found in Attachment B to this public notice. See Broadcast First Report and Order, 13 FCC Rcd at 15974- 75 and n.153. 9 Broadcast First Report and Order, 13 FCC Rcd at 15978-80 ¶¶ 149-154. See also Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253, Second Report and Order, FCC 94-61, 9 FCC Rcd 2348, 2376 ¶ 165 (1994) (“Competitive Bidding Second Report & Order”). 10 Broadcast First Report and Order, 13 FCC Rcd at 15923-25 ¶¶ 7-12. 11 Any applicant that submits a short-form application that is accepted for filing but fails to timely submit an upfront payment will retain its status as an applicant in Auction 79 and will remain subject to the Commission's anti- collusion rules, 47 C.F.R. §§ 1.2105(c) and 73.5002(d), but, having purchased no bidding eligibility, will not be eligible to bid. See Broadcast First Report and Order, 13 FCC Rcd at 15980 ¶ 153. 12 See, e.g., Amendment of Part 1 of the Commission's Rules – Competitive Bidding Procedures, WT Docket No. 97-82, Order on Reconsideration of the Third Report and Order, Fifth Report and Order, and Fourth Further Notice of Proposed Rule Making, FCC 00-274, 15 FCC Rcd 15293 (2000) (“Part 1 Fifth Report and Order”)(modified by Erratum, DA 00-2475 (rel. Nov. 3, 2000)); id., Seventh Report and Order, FCC 01-270, 16 FCC Rcd 17546 (2001) (“Part 1 Seventh Report and Order”); id., Eighth Report and Order, FCC 02-34, 17 FCC Rcd 2962 (2002); id., Second Order on Reconsideration of the Third Report and Order and Order on Reconsideration of the Fifth Report and Order, FCC 03-98, 18 FCC Rcd 10180 (2003); id., Second Order on Reconsideration of the Fifth Report and Order, FCC 04-295, 20 FCC Rcd 1942 (2005). See also Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission’s Competitive Bidding Rules and Procedures, WT Docket No. 05-211, Report and Order, FCC 06-4, 21 FCC Rcd 891 (2006) (“CSEA/Part 1 First Report and Order”), petitions for recon. pending; id., Second Report and Order and Second Further Notice of Proposed Rulemaking, FCC 06-52, 21 FCC Rcd 4753 (2006), petitions for recon. pending; id., Order on Reconsideration of the Second Report and Order, FCC 06-78, 21 FCC Rcd 6703 (2006) (modified by Erratum and Notice of Office of Management and Budget Approval of Information Collections, DA 06-1280, 21 FCC Rcd 6622 (WTB 2006)), petition for review dismissed sub nom. Council Tree Communications, Inc. v. FCC, 503 F.3d 284 (3d Cir. 2007); id., Second Order on Reconsideration of the Second Report and Order, FCC 08-92, 23 FCC Rcd 5425 (2008), petition for review pending, Council Tree Communications, Inc. v. FCC, Case No. 08-2036 (3d Cir., filed April 8, 2008). Federal Communications Commission DA 09-810 5 1.2112 and 73.5000 – 73.5009. Prospective bidders must also be thoroughly familiar with the procedures, terms and conditions contained in this public notice, the Auction 79 Comment Public Notice and the Broadcast First Report and Order,13 the Broadcast First Reconsideration Order,14 the New Entrant Bidding Credit Reconsideration Order,15 and the NCE Second Report and Order.16 6. The terms contained in the Commission’s rules, relevant orders, and public notices are not negotiable. The Commission may amend or supplement the information contained in our public notices at any time, and will issue public notices to convey any new or supplemental information to applicants. It is the responsibility of all applicants to remain current with all Commission rules and with all public notices pertaining to this auction. Copies of most auctions-related Commission documents, including public notices, can be retrieved from the FCC Auctions Internet site at http://wireless.fcc.gov/auctions. Additionally, documents are available for public inspection and copying between 8:00 a.m. and 4:30 p.m. Eastern Time (ET) Monday through Thursday or 8:00 a.m. to 11:30 a.m. ET Fridays at the FCC Reference Information Center, 445 12th Street, SW, Room CY-A257, Washington, DC 20554. Documents may also be purchased from the Commission’s duplicating contractor, Best Copy and Printing, Inc. (“BCPI”), 445 12th Street, SW, Room CY-B402, Washington, DC 20554, 800-378-3160 or at http://www.bcpiweb.com.17 2. Prohibition of Collusion and Compliance with Antitrust Laws 7. To ensure the competitiveness of the auction process, Section 1.2105(c) of the Commission’s rules prohibits auction applicants for construction permits in any of the same geographic license areas from communicating with each other about bids, bidding strategies, or settlements unless such applicants have identified each other on their short-form applications (FCC Form 175) as parties with whom they have entered into agreements pursuant to Section 1.2105(a)(2)(viii).18 Thus, unless they have identified each other on their short-form applications as parties with whom they have entered into agreements under Section 1.2105(a)(2)(viii), applicants for any of the same geographic license areas must affirmatively avoid all communications with or disclosures to each other that affect or have the potential to affect bids or bidding strategy.19 In some instances, this prohibition extends to communications regarding the post-auction market structure. This prohibition begins at the short-form application filing deadline and ends at the down payment deadline after the auction.20 This prohibition applies to all applicants regardless of whether such applicants become qualified bidders or 13 Broadcast First Report and Order, FCC 98-194, 13 FCC Rcd at 15920. 14 Broadcast First Reconsideration Order, FCC 99-74, 14 FCC Rcd at 8724. 15 Implementation of Section 309(j) of the Communications Act – Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Service Licenses, MM Docket No. 97-234, Memorandum Opinion and Order, FCC 99-201, 14 FCC Rcd 12541 (1999) (“New Entrant Bidding Credit Reconsideration Order”). 16 Reexamination of the Comparative Standards for Noncommercial Educational Applicants, MM Docket No. 95- 31, Second Report and Order, FCC 03-44, 18 FCC Rcd 6691 (2003) (“NCE Second Report and Order”), Memorandum Opinion and Third Order on Reconsideration, FCC 08-219, 23 FCC Rcd 17423 (2008). 17 When ordering documents from BCPI, please provide the appropriate FCC document number (for example, AU Docket No. 09-21 for the Auction 79 Comment Public Notice, or DA 09-810 for this Public Notice). 18 See 47 C.F.R. §§ 1.2105(a)(2)(viii), 1.2105(c)(1) and 47 C.F.R. § 73.5002; see also Part 1 Seventh Report and Order, FCC 01-270, 16 FCC Rcd at 17546; Part 1 Fifth Report and Order, 15 FCC Rcd at 15297-98 ¶¶ 7-8. 19 See, e.g., Wireless Telecommunications Bureau Provides Guidance on the Anti-Collusion Rule for D, E and F Block Bidders, Public Notice, DA 96-1460, 11 FCC Rcd 10134 (WTB 1996). 20 47 C.F.R. § 1.2105(c)(1). Federal Communications Commission DA 09-810 6 actually bid.21 The “geographic license area” is the market designation of the particular service.22 For the FM service, the market designation is the particular vacant FM allotment (e.g., Boligee, Alabama, Channel 297A, Market FM626-A). In Auction 79, for example, the rule would apply to applicants designating on the short-form application any of the same FM allotments. Therefore, applicants that apply to bid for an FM construction permit for the same allotment would be precluded from engaging in prohibited communications during the period from the short-form application deadline until the down payment deadline following the close of the auction. In addition, even if auction applicants are each eligible to bid on only one common FM allotment, they may not discuss with each other their bids or bidding strategies relating to any FM allotment that either designates on its short-form application. 8. Applicants for Auction 79 are reminded that they remain subject to the provisions of Section 1.2105(c), prohibition of collusion, until the down payment deadline after the auction, which will be announced in a future public notice.23 Applicants are also reminded that, for purposes of this prohibition on certain communications, Section 1.2105(c)(7)(i) defines “applicant” as including all officers and directors of the entity submitting a short-form application to participate in the auction, all controlling interests of that entity, as well as all holders of partnership and other ownership interests and any stock interest amounting to 10 percent or more of the entity, or outstanding stock, or outstanding voting stock of the entity submitting a short-form application.24 9. Applicants should note that they must not communicate directly or indirectly about bids or bidding strategy to other applicants for construction permits for any of the same allotments.25 The anti- collusion rule prohibits not only a communication about an applicant’s own bids or bidding strategy, but also a communication of another applicant’s bids or bidding strategy.26 While the anti-collusion rule provisions do not prohibit business negotiations among auction applicants, applicants must remain vigilant so as not to communicate directly or indirectly information that affects, or could affect, bids or bidding strategy, or the negotiation of settlement agreements. 10. Moreover, individuals and entities subject to the anti-collusion rule should take special care in circumstances where their employees may receive information directly or indirectly from a competing applicant relating to any competing applicant’s bids or bidding strategies. Where an individual served as an officer for two or more applicants, the Bureaus have found that the bids and bidding strategies of one applicant are necessarily conveyed to the other applicant, and, absent a disclosed bidding agreement, an apparent violation of the anti-collusion rule occurs.27 The Bureaus have not addressed situations where 21 See, e.g., Star Wireless, LLC, Forfeiture Order, DA 04-3026, 19 FCC Rcd 18626, 18628 ¶ 4 n.19 (EB 2004), order granted in part, Order on Review, FCC 07-80, 22 FCC Rcd 8943 (2007), petition for review denied, Star Wireless, LLC v. FCC, 522 F.3d 469 (D.C. Cir. 2008) (collusion rule applies to applicants regardless of whether they are qualified to bid); Letter to Robert Pettit, Esquire, from Margaret W. Wiener, Chief, Auctions and Industry Analysis Division , DA 00-2905, 16 FCC Rcd 10080 (WTB 2000) (declining to exempt an applicant’s controlling interest from coverage by the anti-collusion rule, even though the applicant never made an upfront payment for the auction and was not listed as a qualified bidder). 22 Part 1 Seventh Report and Order, 16 FCC Rcd at 17549 n.12. 23 47 C.F.R. § 1.2105(c)(1). 24 47 C.F.R. § 1.2105(c)(7)(i). 25 Part 1 Seventh Report and Order, 16 FCC Rcd at 17549-50 ¶ 6. 26 See Western PCS BTA 1 Corp., Memorandom Opinion and Order, FCC 99-385, 14 FCC Rcd 21571 (1999). 27 See, e.g., Letter to Colby M. May, TCCSA, Inc., d/b/a Trinity Broadcasting Network, from Barbara A. Kreisman, Chief, Video Division, Media Bureau, and Margaret W. Wiener, Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, DA 05-2445, 20 FCC Rcd 14648 (WTB/MB 2005) (finding apparent (continued….) Federal Communications Commission DA 09-810 7 employees who do not qualify as the applicant (such as, individuals who are not officers or directors) receive information regarding a competing applicant’s bids or bidding strategies and whether that information might be deemed to necessarily convey to the applicant. We note that an exception to the anti-collusion rule allowing non-controlling interest holders to have interests in more than one competing applicant without violating the anti-collusion rule, provided specified conditions are met (including a certification that no prohibited communications have occurred or will occur), does not extend to controlling interest holders.28 11. Auction 79 applicants are encouraged not to use the same individual as an authorized bidder. A violation of the anti-collusion rule could occur if an individual acts as the authorized bidder for two or more competing applicants, and conveys information concerning the substance of bids or bidding strategies between such applicants. Also, if the authorized bidders are different individuals employed by the same organization (e.g., law firm or engineering firm or consulting firm), a violation similarly could occur.29 In such a case, at a minimum, applicants should certify on their applications that precautionary steps have been taken to prevent communication between authorized bidders and that applicants and their bidding agents will comply with the anti-collusion rule.30 12. Applicants are cautioned that the Commission remains vigilant about prohibited communications taking place in other situations. For example, the Commission has warned that prohibited “communications concerning bids and bidding strategies may include communications regarding capital calls or requests for additional funds in support of bids or bidding strategies to the extent such communications convey information concerning the bids and bidding strategies directly or indirectly.”31 Moreover, the Commission has found a violation of the anti-collusion rule where an applicant used the Commission’s bidding system to disclose “its bidding strategy in a manner that explicitly invited other auction participants to cooperate and collaborate in specific markets,”32 and has placed auction participants on notice that the use of its bidding system “to disclose market information to competitors will not be tolerated and will subject bidders to sanctions.”33 Applicants also should use caution in their dealings with other parties, such as members of the press, financial analysts, or others who might become conduits for the communication of prohibited bidding information. For example, an applicant’s statement to the press that it intends to stop bidding in the auction could give rise to a finding of an anti-collusion rule violation.34 Similarly, a listed applicant’s public statement of intent not to participate in Auction 79 bidding could also violate the rule. Applicants are hereby placed on notice that (Continued from previous page) violation of anti-collusion rule where applicants with mutually exclusive applications reported sharing same individual as an officer and director and reported having no bidding agreement). 28 47 C.F.R. § 1.2105(c)(4). 29 See Application of Nevada Wireless for a License to Provide 800 MHz Specialized Mobile Radio Service in the Farmington, NM-CO Economic Area (EA-155) Frequency Band A, Memorandum Opinion and Order, DA 98-1137, 13 FCC Rcd 11973, 11977 ¶ 11 (1998) (“Nevada Wireless Order”). 30 Id. 31 Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253, Memorandum Opinion and Order, FCC 94-295, 9 FCC Rcd 7684, 7689 ¶ 12 (1994). 32 Mercury PCS II, LLC, Notice of Apparent Liability for Forfeiture, FCC 97-388, 12 FCC Rcd 17970, 17976 ¶ 12 (1997). 33 Mercury PCS II, LLC, Memorandum Opinion and Order, FCC 98-203, 13 FCC Rcd 23755, 23760 ¶ 11 (1998). 34 Compare Wireless Telecommunications Bureau Responds to Questions About the Local Multipoint Distribution Service Auction, Public Notice, DA 98-37, 13 FCC Rcd 341, 347-48 (1998) (“Public statements can give rise to collusion concerns. This has occurred in the antitrust context, where certain public statements can support other evidence which tends to indicate the existence of a conspiracy.”). Federal Communications Commission DA 09-810 8 public disclosure of information relating to bids or bidding strategies, or to post auction market structures may violate the anti-collusion rule. 13. The Commission’s rules do not prohibit applicants from entering into otherwise lawful bidding agreements before filing their short-form applications, as long as they disclose the existence of the agreement(s) in their short-form applications.35 If parties agree in principle on all material terms prior to the short-form filing deadline, each party to the agreement must identify the other party or parties to the agreement on its short-form application under Section 1.2105(c), even if the agreement has not been reduced to writing. If the parties have not agreed in principle by the short-form filing deadline, they should not include the names of parties to discussions on their applications, and they may not continue negotiations, discussions or communications with any other applicants after the short-form filing deadline.36 14. By electronically submitting a short-form application, each applicant in Auction 79 will certify its compliance with Sections 1.2105(c) and 73.5002. However, the Bureaus caution that merely filing a certifying statement as part of an application will not outweigh specific evidence that collusive behavior has occurred, nor will it preclude the initiation of an investigation when warranted.37 The Commission has stated that it “intend[s] to scrutinize carefully any instances in which bidding patterns suggest that collusion may be occurring.”38 Any applicant found to have violated the anti-collusion rule may be subject to sanctions.39 15. If an applicant makes or receives a communication that appears to violate the anti-collusion rule, it must report such communication in writing to the Commission immediately and in no case later than five business days after the communication occurs.40 The Commission has clarified that each applicant’s obligation to report any such communication continues beyond the five-day period after the communication is made, even if the report is not made within the five day period.41 16. In addition, Section 1.65 of the Commission’s rules requires an applicant to maintain the accuracy and completeness of information furnished in its pending application and to notify the Commission within 30 days of any substantial change that may be of decisional significance to that application.42 Thus, Section 1.65 requires an auction applicant to notify the Commission of any substantial change to the information or certifications included in its pending short-form application. Applicants are therefore required by Section 1.65 to report to the Commission any communications they have made to or received from another applicant after the short-form application filing deadline that affect or have the potential to affect bids or bidding strategy, unless such communications are made to or received from parties to agreements identified under Section 1.2105(a)(2)(viii). 35 47 C.F.R. § 1.2105(c)(7)(i). 36 See Wireless Telecommunications Bureau Clarifies Spectrum Auction Anti-Collusion Rules, Public Notice, DA 95-2244, 11 FCC Rcd 9645 (1995) (“Anti-Collusion Public Notice”). 37 Nevada Wireless Order, 13 FCC Rcd at 11978 ¶ 13. 38 Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253, Memorandum Opinion and Order, 9 FCC Rcd 7684, 7689 ¶ 12 (1994). 39 See 47 C.F.R. §§ 1.2105(c), 1.2107(d), and 1.2109(d). 40 47 C.F.R. § 1.2105(c)(6). 41 See Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150, Second Report and Order, FCC 07-132, 22 FCC Rcd 15289, 15403-04 ¶¶ 285-86 (2007). 42 47 C.F.R. § 1.65; see also Part 1 Seventh Report and Order, 16 FCC Rcd at 17555 ¶ 17. Federal Communications Commission DA 09-810 9 17. Parties reporting communications pursuant to Sections 1.2105(a)(2) or 1.2105(c)(6) must take care to ensure that any reports of prohibited communications do not themselves give rise to a violation of the anti-collusion rule. For example, a party’s report of a prohibited communication could violate the rule by communicating prohibited information to other applicants through the use of Commission filing procedures that would allow such materials to be made available for public inspection. A party seeking to report such prohibited communications should consider submitting its report with a request that the report or portions of the submission be withheld from public inspection.43 Such parties also are encouraged to coordinate with the Auctions and Spectrum Access Division staff if they have any questions about the procedures for submitting such reports.44 This Public Notice provides additional guidance on procedures for submitting application-related information below.45 18. Applicants that are winning bidders will be required to disclose in their long-form applications the specific terms, conditions, and parties involved in any bidding consortia, joint venture, partnership, or agreement or other arrangement entered into relating to the competitive bidding process.46 19. Applicants must be aware that failure to comply with the Commission’s rules can result in enforcement action. A summary listing of documents issued by the Commission and the Bureaus addressing the application of the anti-collusion rule may be found in Attachment D. These documents are available on the Commission’s auction anti-collusion web page.47 20. Applicants are also reminded that, regardless of compliance with the Commission’s rules, they remain subject to the antitrust laws, which are designed to prevent anticompetitive behavior in the marketplace. 48 Compliance with the disclosure requirements of the Commission’s anti-collusion rule will not insulate a party from enforcement of the antitrust laws.49 For instance, a violation of the antitrust laws could arise out of actions taking place well before any party submitted a short-form application.50 The Commission has cited a number of examples of potentially anticompetitive actions that would be prohibited under antitrust laws: for example, actual or potential 43 See 47 C.F.R. § 0.459 (requests that materials or information submitted to the Commission be withheld from public inspection). Filers requesting confidential treatment of documents must be sure that the cover page of the filing prominently displays that the documents seek confidential treatment. For example, a filing might include a cover page stamped with “Request for Confidential Treatment Attached” or “Not for Public Inspection.” Any such request must cover all of the material to which the request applies. See 47 C.F.R. § 0.459 (a). 44 See Section VI. “Contact Information,” below. 45 See Section II. J. “Maintaining Current Information in Short-Form Applications,” below. 46 47 C.F.R. § 1.2107(d). 47 http://wireless.fcc.gov/auctions/anticollusion 48 See Amendment of Part 1 of the Commission's Rules – Competitive Bidding Procedures, WT Docket No. 97-82, Third Further Notice of Proposed Rule Making, FCC 99-384, 14 FCC Rcd 21558, 21560 ¶ 4 and n. 4 (1999) citing Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253, Memorandum Opinion and Order, 9 FCC Rcd 7684, 7689 ¶ 12 (1994) (“[W]e wish to emphasize that all applicants and their owners continue to be subject to existing antitrust laws. Applicants should note that conduct that is permissible under the Commission's Rules may be prohibited by the antitrust laws.”); Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253, Fourth Memorandum Opinion & Order, FCC 94-264, 9 FCC Rcd 6858, 6869 n. 134 (1994)(“[A]pplicants will also be subject to existing antitrust laws.”) (“Fourth Memorandum Opinion and Order”). 49 See Competitive Bidding Second Report and Order, 9 FCC Rcd at 2388 ¶ 226. See also “Justice Department Sues Three Firms Over FCC Auction Practices,” Press Release 98-536 (DOJ Nov. 10, 1998). 50 See, e.g., Fourth Memorandum Opinion & Order, FCC 94-264, 9 FCC Rcd at 6869 n.134. Federal Communications Commission DA 09-810 10 competitors may not agree to divide territories horizontally in order to minimize competition, regardless of whether they split a market in which they both do business, or whether they merely reserve one market for one and another market for the other.51 Similarly, the Wireless Telecommunications Bureau previously has reminded potential applicants and others that “[e]ven where the applicant discloses parties with whom it has reached an agreement on the short-form application, thereby permitting discussions with those parties, the applicant is nevertheless subject to existing antitrust laws.”52 To the extent the Commission becomes aware of specific allegations that suggest that violations of the federal antitrust laws may have occurred, the Commission may refer such allegations to the United States Department of Justice for investigation.53 If an applicant is found to have violated the antitrust laws or the Commission’s rules in connection with its participation in the competitive bidding process, it may be subject to forfeiture of its upfront payment, down payment, or full bid amount and may be prohibited from participating in future auctions, among other sanctions.54 3. Due Diligence 21. Potential applicants are reminded that they are solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the value of the broadcast facilities in this auction. The FCC makes no representations or warranties about the use of this spectrum for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC permittee in the broadcast service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular service, technology, or product, nor does an FCC construction permit or license constitute a guarantee of business success. Applicants should perform their individual due diligence before proceeding as they would with any new business venture. 22. In particular, potential applicants are strongly encouraged to review all underlying Commission orders, such as the specific report and order amending the FM Table of Allotments and allotting the FM channel(s) on which they plan to bid.55 Orders adopted in FM allotment rulemaking proceedings often include anomalies such as site restrictions or expense reimbursement requirements.56 Bidders are also responsible for reviewing all pending rulemaking petitions and open proceedings that might affect the FM allotment(s) on which they plan to bid in order to make reasoned, appropriate decisions about their participation in Auction 79 and their bidding strategy. Additionally, potential bidders should perform technical analyses sufficient to assure themselves that, should they prevail in competitive bidding for a given FM allotment, they will be able to build and operate facilities that will fully comply with the Commission’s technical and legal requirements. 23. Potential applicants are also strongly encouraged to conduct their own research prior to the beginning of bidding in Auction 79 in order to determine the existence of any pending administrative or judicial proceedings that might affect their decision to participate in the auction. Participants in Auction 79 are strongly encouraged to continue such research throughout the auction. 51 Id. 52 Anti-Collusion Public Notice, DA 95-2244, 11 FCC Rcd 9645. 53 See Competitive Bidding Second Report and Order, 9 FCC Rcd at 2388 ¶ 226. 54 See 47 C.F.R. § 1.2109(d); see also Competitive Bidding Second Report and Order, 9 FCC Rcd at 2388 ¶ 226. 55 See 47 C.F.R. § 73.202. 56 See, e.g., Charlotte Amalie, Frederiksted, and Christiansted, U.S. Virgin Islands, Report and Order, DA 03-4120, 19 FCC Rcd 30 (MB 2004); Cheyenne, Wyoming and Gering, Nebraska, Report and Order, DA 00-865, 15 FCC Rcd 7528 (MMB 2000); Circleville, Ohio, Second Report and Order, 8 F.C.C.2d 159 (1967). Federal Communications Commission DA 09-810 11 24. Applicants should also be aware that certain pending and future proceedings, including applications, applications for modification, petitions for rulemaking, requests for special temporary authority, waiver requests, petitions to deny, petitions for reconsideration, informal objections, and applications for review, before the Commission may relate to particular applicants or incumbent permittees, or incumbent licensees, or the construction permits available in Auction 79. In addition, pending and future judicial proceedings may relate to particular applicants or incumbent permittees, or incumbent licensees, or the construction permits available in Auction 79. Prospective applicants are responsible for assessing the likelihood of the various possible outcomes, and considering their potential impact on construction permits available in this auction. 25. Applicants should perform due diligence to identify and consider all proceedings that may affect the construction permits being auctioned and that could have an impact on the availability of spectrum for Auction 79. In addition, although the Commission may continue to act on various pending applications, informal objections, petitions, and other requests for Commission relief, some of these matters may not be resolved by the beginning of bidding in the auction. 26. Applicants are solely responsible for identifying associated risks and for investigating and evaluating the degree to which such matters may affect their ability to bid on, otherwise acquire, or make use of the construction permits available in Auction 79. Potential applicants are strongly encouraged to physically inspect any prospective sites located in, or near, the service area for which they plan to bid, and also to familiarize themselves with the environmental review obligations described below in Section I.B.6. 27. Applicants may research the licensing database for the Media Bureau on the Internet in order to determine which channels are already licensed to incumbent licensees or previously-authorized to construction permittees. Licensing records for the Media Bureau are contained in the Media Bureau’s Consolidated Data Base System (CDBS) and may be researched on the Internet at http://www.fcc.gov/mb. Potential bidders may query the database online and download a copy of their search results if desired. Detailed instructions on using Search for Station Information, Search for Ownership Report Information and Search for Application Information and downloading query results are available online by selecting the CDBS Public Access (main) button at the bottom of the Electronic Filing and Public Access list section. The database searches return either station or application data. The application search provides an application link that displays the complete electronically filed application in application format. An AL/TC search under the application search link permits searching for Assignment of License/Transfer of Control groups using the AL/TC group lead application. For further details, click on the Help file. Potential bidders should direct questions regarding the search capabilities of CDBS to the Media Bureau help line at (202) 418-2662, or via e-mail at mbinfo@fcc.gov. 28. The Commission makes no representations or guarantees regarding the accuracy or completeness of information in its databases or any third party databases, including, for example, court docketing systems. To the extent the Commission’s databases may not include all information deemed necessary or desirable by an applicant, applicants may obtain or verify such information from independent sources or assume the risk of any incompleteness or inaccuracy in said databases. Furthermore, the Commission makes no representations or guarantees regarding the accuracy or completeness of information that has been provided by incumbent licensees and incorporated into its databases. 4. Use of Integrated Spectrum Auction System 29. The Commission will make available a browser-based bidding system to allow bidders to participate in Auction 79 over the Internet using the Commission’s Integrated Spectrum Auction System (“ISAS” or “FCC Auction System”). The Commission makes no warranty whatsoever with respect to the FCC Auction System. In no event shall the Commission, or any of its officers, employees or agents, be liable for any damages whatsoever (including, but not limited to, loss of business profits, Federal Communications Commission DA 09-810 12 business interruption, loss of business information, or any other loss) arising out of or relating to the existence, furnishing, functioning or use of the FCC Auction System that is accessible to qualified bidders in connection with this auction. Moreover, no obligation or liability will arise out of the Commission’s technical, programming or other advice or service provided in connection with the FCC Auction System. 5. Fraud Alert 30. As is the case with many business investment opportunities, some unscrupulous entrepreneurs may attempt to use Auction 79 to deceive and defraud unsuspecting investors. Common warning signals of fraud include the following: · The first contact is a “cold call” from a telemarketer, or is made in response to an inquiry prompted by a radio or television infomercial. · The offering materials used to invest in the venture appear to be targeted at IRA funds, for example, by including all documents and papers needed for the transfer of funds maintained in IRA accounts. · The amount of investment is less than $25,000. · The sales representative makes verbal representations that: (a) the Internal Revenue Service, Federal Trade Commission (“FTC”), Securities and Exchange Commission (“SEC”), FCC, or other government agency has approved the investment; (b) the investment is not subject to state or federal securities laws; or (c) the investment will yield unrealistically high short-term profits. In addition, the offering materials often include copies of actual FCC releases, or quotes from FCC personnel, giving the appearance of FCC knowledge or approval of the solicitation. · Information about deceptive telemarketing investment schemes is available from the FCC as well as the FTC and SEC. Additional sources of information for potential bidders and investors may be obtained from: (i) the FCC by going to http://wireless.fcc.gov/csinfo/#fraud or by telephone at (888) 225-5322 (FCC’s Consumer Call Center); (ii) the FTC by telephone at (877) FTC-HELP ((877) 382-4357) or by going to http://ftc.gov/bcp/edu/pubs/consumer/invest/inv03.shtm; and (iii) the SEC by telephone at (202) 942-7040 or by going to http://sec.gov/cgi-bin/txt-srch-sec?text=fraud§ion=Investor+Information&x=8&y=5. Complaints about specific deceptive telemarketing investment schemes should be directed to the FTC, the SEC, or the National Fraud Information Center at (800) 876-7060. 6. Environmental Review Requirements 31. Permittees or licensees must comply with the Commission’s rules regarding implementation of the National Environmental Policy Act and other federal environmental statutes.57 The construction of a broadcast facility is a federal action and the permittee or licensee must comply with the Commission’s environmental rules for each such facility.58 The Commission’s environmental rules require, among other things, that the permittee or licensee consult with expert agencies having environmental responsibilities, including the U.S. Fish and Wildlife Service, the State Historic Preservation Office, the Army Corps of Engineers and the Federal Emergency Management Agency (through the local authority with jurisdiction over floodplains). In assessing the effect of facilities construction on historic properties, the permittee or licensee must follow the provisions of the FCC’s 57 47 C.F.R. Ch. 1, Subpart I. 58 47 C.F.R. §§ 1.1301-1.1319. Federal Communications Commission DA 09-810 13 Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process.59 The permittee or licensee must prepare environmental assessments for facilities that may have a significant impact in or on wilderness areas, wildlife preserves, threatened or endangered species or designated critical habitats, historical or archaeological sites, Indian religious sites, floodplains, and surface features. The permittee or licensee also must prepare environmental assessments for facilities that include high intensity white lights in residential neighborhoods or excessive radio frequency emission. C. Auction Specifics 1. Auction Start Date 32. The Bureaus proposed that bidding in this auction would begin on September 1, 2009. Minority Media argues that access to capital remains a primary barrier to minority media ownership, that almost no equity or debt capital is available at this time, and that the start of bidding should accordingly be postponed until there is an economic recovery or until at least six months after the proposed date.60 In contrast, Briarwood opposes a postponement because the current “soft market” favors minority and small broadcasters and a delay would exclude smaller companies.61 Sutton Radiocasting Corporation (“Sutton”) also opposes a postponement, arguing that the current economic climate might mean that fewer speculators would participate and therefore small or local community- based bidders could acquire desired frequencies in this auction.62 In its comments, MEI asserted that holding this auction during the current severe economic situation would result in a “fire sale” of precious broadcast spectrum.63 Briarwood disagrees, arguing that it and other potential bidders are prepared to begin bidding in this auction and that a delay would risk losing potential bidders who are prepared to bid now. 33. The bidding delay specified by Minority Media and implied by MEI would undermine an important goal of auctions – the rapid deployment of service to the public. The Bureaus conclude that to promote this public interest goal, they will not postpone bidding until the national economic climate improves, or a specified six month delay, whichever comes first. Accordingly, bidding will begin on the proposed date. The Bureaus note that construction permits for additional vacant FM allotments will be made available in future auctions. 34. Bidding in Auction 79 will begin on Tuesday, September 1, 2009. The initial schedule for bidding will be announced by public notice at least one week before the start of the auction. Moreover, unless otherwise announced, bidding on all construction permits will be conducted on each business day until bidding has stopped on all construction permits. 2. Auction Title 35. Auction 79 – FM Broadcast 3. Bidding Methodology 36. As discussed in more detail below, the bidding methodology for Auction 79 will be simultaneous multiple round (“SMR”) bidding.64 The Commission will conduct this auction over the 59 47 C.F.R. Part 1, Appendix C. 60 Minority Media Reply Comments at 2-3. 61 Briarwood Reply Comments at 3. 62 Comments of Sutton Radiocasting Corporation, filed April 1, 2009 (Sutton Reply Comments). 63 MEI Comments at 2. 64 See Section IV.A.1. “Simultaneous Multiple Round Auction,” below. Federal Communications Commission DA 09-810 14 Internet using the FCC Auction System, and telephonic bidding will be available as well. Qualified bidders are permitted to bid electronically via the Internet or by telephone. All telephone calls are recorded. 4. Pre-Auction Dates and Deadlines 37. The following dates and deadlines apply: Auction Seminar ...............................................................June 16, 2009 Short-Form Application (FCC Form 175) Filing Window Opens .......................................................June 16, 2009; 12:00 noon ET Short-Form Application (FCC Form 175) Filing Window Deadline ..................................................June 25, 2009; prior to 6:00 p.m. ET Upfront Payments (via wire transfer)................................July 31, 2009; 6:00 p.m. ET Mock Auction ...................................................................August 28, 2009 Auction Begins..................................................................September 1, 2009 5. Requirements for Participation 38. Those wishing to participate in this auction must: · Submit a short-form application (FCC Form 175) electronically prior to 6:00 p.m. ET, June 25, 2009, following the electronic filing procedures set forth in Attachment B to this Public Notice. · Submit a sufficient upfront payment and an FCC Remittance Advice Form (FCC Form 159) by 6:00 p.m. ET, July 31, 2009, following the procedures and instructions set forth in Attachment C to this Public Notice. · Comply with all provisions outlined in this Public Notice and applicable Commission rules. II. SHORT-FORM APPLICATION (FCC FORM 175) REQUIREMENTS A. General Information Regarding Short-Form Applications 39. An application to participate in an FCC auction, referred to as a short-form application or FCC Form 175, provides information used in determining whether the applicant is legally, technically, and financially qualified to participate in Commission auctions for licenses or permits.65 The short- form application is the first part of the Commission’s two-phased auction application process. In the first phase of this process, parties desiring to participate in the auction must file streamlined, short-form applications in which they certify under penalty of perjury as to their qualifications.66 Each applicant must take seriously its duties and responsibilities and carefully determine before filing an application that the applicant has the legal, technical and financial resources to participate in Auction 79, as well as construct and operate an FM station if the auction applicant becomes a licensee as a result of its participation in this auction. Eligibility to participate in bidding is based on the applicants’ short-form 65 47 C.F.R. §§ 1.2105, 73-5002. 66 Id.; Competitive Bidding Second Report and Order, 9 FCC Rcd at 2376 ¶ 163. Federal Communications Commission DA 09-810 15 applications and certifications as well as their upfront payments, as explained below.67 In the second phase of the process, winning bidders must file more comprehensive long-form applications.68 40. Entities and individuals seeking construction permits available in Auction 79 must file a short-form application electronically via the FCC Auction System prior to 6:00 p.m. ET on June 25, 2009, following the procedures prescribed in Attachment B to this Public Notice. If an applicant claims eligibility for a bidding credit, the information provided in its FCC Form 175 will be used in determining whether the applicant is eligible for the claimed bidding credit. Applicants filing a short- form application are subject to the Commission’s anti-collusion rules beginning on the deadline for filing, as described above. 41. Applicants bear full responsibility for submitting accurate, complete and timely short-form applications. All applicants must certify on their short-form applications under penalty of perjury that they are legally, technically, financially and otherwise qualified to hold a license.69 Applicants should read the instructions set forth in Attachment B to this Public Notice carefully and should consult the Commission’s rules to ensure that, in addition to the materials described below, all the information that is required under the Commission’s rules is included with their short-form applications.70 42. An entity may not submit more than one short-form application for a single auction. If a party submits multiple short-form applications, only one application may be accepted for filing. 43. Applicants also should note that submission of a short-form application (and any amendments thereto) constitutes a representation by the certifying official that he or she is an authorized representative of the applicant, that he or she has read the form’s instructions and certifications, and that the contents of the application, its certifications, and any attachments are true and correct. Applicants are not permitted to make major modifications to their applications; such impermissible changes include a change of the certifying official to the application.71 Submission of a false certification to the Commission may result in penalties, including monetary forfeitures, license forfeitures, ineligibility to participate in future auctions, and/or criminal prosecution. B. Permit Selection 44. An applicant must select the construction permits on which it wants to bid from the “Eligible Permits” list on its short-form application. To assist applicants in identifying construction permits of interest that will be available in Auction 79, the FCC Auction System includes a filtering mechanism that allows an applicant to filter the “Eligible Permits” list. The applicant will make selections for one or more of the filter criteria and the system will produce a list of construction permits satisfying the specified criteria. The applicant may select all the construction permits in the customized list or select individual construction permits from the list. Applicants also will be able to select construction permits from one customized list and then create additional customized lists to select additional construction permits. 67 Section III.D. “Upfront Payments – Due July 31, 2009,” below. 68 47 C.F.R. §§ 1.2107, 73.5005. 69 47 C.F.R. § 1.2105(a)(2)(v). 70 As discussed generally in the NCE Second Report and Order, the opening of a window for nonreserved vacant FM allotments provides a filing opportunity for both NCE and commercial applicants. However, as discussed in Section III.C, below, while non-mutually exclusive NCE applications will not be resolved through competitive bidding, any applications specifying NCE facilities that are mutually exclusive with any applications specifying commercial facilities will be returned as unacceptable for filing. 47 C.F.R. § 73.5002(b). 71 See 47 C.F.R. § 1.2105(b). Federal Communications Commission DA 09-810 16 45. Applicants will not be able to change their construction permit selections after the short- form application filing deadline.72 Applicants interested in participating in Auctions 79 must have selected construction permit(s) available in this auction by the short-form application filing deadline. Applicants must review and verify their construction permit selections before the deadline for submitting short-form applications. The FCC Auction System will not accept bids from an applicant on construction permits that the applicant has not selected on its short-form application. C. New Entrant Bidding Credit 46. To promote the objectives of Section 309(j) and further its long-standing commitment to the diversification of broadcast facility ownership, the Commission adopted a tiered New Entrant Bidding Credit for broadcast auction applicants with no, or very few, other media interests. 47. The interests of the applicant, and of any individuals or entities with an attributable interest in the applicant, in other media of mass communications are considered when determining an applicant's eligibility for the New Entrant Bidding Credit.73 The bidder's attributable interests are determined as of the short-form application (FCC Form 175) filing deadline – June 25, 2009. Thus, the applicant's maximum new entrant bidding credit eligibility will be determined as of the short-form application filing deadline. Applicants intending to divest a media interest or make any other ownership changes, such as resignation of positional interests, in order to avoid attribution for purposes of qualifying for the New Entrant Bidding Credit must have consummated such divestment transactions or have completed such ownership changes by no later than the short-form filing deadline – June 25, 2009.74 Prospective bidders are reminded, however, that events occurring after the short-form filing deadline, such as the acquisition of attributable interests in media of mass communications, may cause diminishment or loss of the bidding credit, and must be reported immediately. 48. Under traditional broadcast attribution rules, those entities or individuals with an attributable interest in a bidder include: · all officers and directors of a corporate bidder; · any owner of 5 percent or more of the voting stock of a corporate bidder; · all partners and limited partners of a partnership bidder, unless the limited partners are sufficiently insulated; and · all members of a limited liability company, unless sufficiently insulated.75 49. In cases where an applicant's spouse or close family member holds other media interests, such interests are not automatically attributable to the bidder. The Commission decides attribution issues in this context based on certain factors traditionally considered relevant.76 Applicants should 72 47 C.F.R. § 1.2105(b)(2). 73 “Media of mass communication” include both commercial and NCE full-power broadcast stations. 74 The fact that, on June 25, 2009, an applicant has a pending or granted application to assign or transfer control of a media interest shall not be sufficient to avoid attribution. To avoid attribution, applicants must have consummated the transaction by June 25, 2009. Thus, an applicant could not qualify for a bidding credit, nor upgrade a previously claimed bidding credit, based upon ownership or positional changes occurring after the short-form filing deadline. See Liberty Productions, a Limited Partnership, Memorandum Opinion and Order, FCC 01-129, 16 FCC Rcd 12061, stay denied, 16 FCC Rcd 18966 (2001), aff’d sub nom, Biltmore Forest Broadcasting FM, Inc. v. F.C.C., 321 F.3d 155 (D.C. Cir.), cert. denied, 540 U.S. 981 (2003) (“Liberty Productions”). 75 See 47 C.F.R. § 73.3555 Note 2. 76 See Clarification of Commission Policies Regarding Spousal Attribution, Memorandum Opinion and Order, FCC 92-60, 7 FCC Rcd 1920 (1992). Federal Communications Commission DA 09-810 17 note that the mass media attribution rules were revised in 1999.77 50. Bidders are also reminded that, by the New Entrant Bidding Credit Reconsideration Order, the Commission further refined the eligibility standards for the New Entrant Bidding Credit, judging it appropriate to attribute the media interests held by very substantial investors in, or creditors of, an applicant claiming new entrant status. Specifically, the attributable mass media interests held by an individual or entity with an equity and/or debt interest in an applicant shall be attributed to that bidder for purposes of determining its eligibility for the New Entrant Bidding Credit, if the equity and debt interests, in the aggregate, exceed 33 percent of the total asset value of the applicant, even if such an interest is non-voting.78 51. In the Diversity Order, the Commission recently relaxed the equity/debt plus (“EDP”) attribution standard, to allow for higher investment opportunities in entities meeting the definition of “eligible entities.”79 An “eligible entity” is defined in Section 73.3555, Note 2(i) of the Rules.80 Pursuant to the Diversity Order, the Commission will now allow the holder of an equity or debt interest in the applicant to exceed the above-noted 33 percent threshold without triggering attribution provided (1) the combined equity and debt in the “eligible entity” is less than 50 percent; or (2) the total debt in the “eligible entity” does not exceed 80 percent of the asset value, and the interest holder does not hold any equity interest, option, or promise to acquire an equity interest in the “eligible entity” or any related entity.81 52. Generally, media interests will be attributable for purposes of the New Entrant Bidding Credit to the same extent that such other media interests are considered attributable for purposes of the broadcast multiple ownership rules.82 However, attributable interests held by a winning bidder in existing low power television, television translator or FM translator facilities will not be counted among the bidder's other mass media interests in determining its eligibility for a New Entrant Bidding Credit.83 A medium of mass communications is defined in 47 C.F.R. § 73.5008(b). Full service noncommercial educational stations, on both reserved and nonreserved channels, are included among “media of mass 77 See Review of the Commission’s Regulations Governing Attribution of Broadcast and Cable/MDS Interests, MM Docket No. 94-150, Report and Order, FCC 99-207, 14 FCC Rcd 12559 (1999) (prior history omitted). 78 See 47 C.F.R. § 73.5008(c). 79 Promoting Diversification of Ownership in the Broadcasting Services, Report and Order and Third Further Notice of Proposed Rulemaking, FCC 07-217, 23 FCC Rcd 5922 (2008) (“Diversity Order”). 80 47 C.F.R. § 73.3555, Note 2(i). An “eligible entity” shall include any entity that qualifies as a small business under the Small Business Administration’s size standards for its industry grouping, as set forth in 13 C.F.R. § 121.201, and holds (i) 30 percent or more of the stock or partnership interests and more than 50 percent of the voting power of the corporation or partnership that will own the media outlet; or (ii) 15 percent or more of the stock or partnership interests and more than 50 percent of the voting power of the corporation or partnership that will own the media outlet, provided that no other person or entity owns or controls more than 25 percent of the outstanding stock or partnership interests; or (iii) more than 50 percent of the voting power of the corporation that will own the media outlet if such corporation is a publicly traded company. 81 See 47 C.F.R. § 73.5008 (c) 82 Further, any bidder asserting new entrant status must have de facto as well as de jure control of the entity claiming the bidding credit. 47 C.F.R. § 73.5007. Typically, de jure control is evidenced by ownership of at least 50.1 percent of an entity's voting stock or equivalent level of interest in cases where the bidder is not a corporate entity. De facto control is determined on a case-by-case basis. 83 Broadcast Reconsideration Order, 14 FCC Rcd at 8764 ¶ 75; 47 C.F.R. § 73.5007. Federal Communications Commission DA 09-810 18 communications” as defined in Section 73.5008(b).84 53. Mullaney Engineering, Inc. (“MEI”) requests that we consider increasing the new entrant bidding credits from their current levels of 25 percent (for applicants with attributable interests in three or fewer media of mass communication) and 35 percent (for applicants with no attributable interests in media of mass communication) to 40 and 60 percent, respectively. The Minority Media and Telecommunications Council (“Minority Media”)85 and Briarwood in separate reply comments support MEI’s proposal. Sutton, in its reply comments, opposes bidding credit increases and argues that the current levels have allowed small, locally-based broadcasters to add a license “to an existing local cluster.” Sutton argues that this arrangement serves the public interest because a small, locally-based licensee is more likely to provide locally-based programming.86 According to Sutton, the current bidding credit percentages should be retained because they have worked well in the past and will continue to work well in the future.87 MEI further requests that the new entrant bidding credit apply only to the “first four facilities” obtained in the auction. Briarwood argues, however, that the increased percentages should apply to more than four facilities obtained in one auction to encourage new companies to participate in broadcasting and to avoid difficulties in determining, after an auction closes, which were the “first four” of multiple facilities obtained in the auction.88 Suggesting that many current broadcast stations have changed ownership in the past eight years, Briarwood also disagrees with MEI’s proposal to restrict the sale of all “discounted” facilities for a period of eight years following grant of the initial construction permit. MEI also requests that we change the definition of “new entrant” to a bidder that has not had any interest in a broadcast facility during the 24 months preceding Commission notice of the auction, while Briarwood would extend this period to five years and would not allow eligibility for the higher “no media” bidding credit percentage for anyone who owned more than three broadcast facilities within five years. 54. The Bureaus are unable to adopt for Auction 79 the suggestions of MEI, Briarwood, and Minority Media to revise the criteria for and the amount of the new entrant bidding credit, to re-define “new entrant,” to limit the number of facilities to which the new entrant bidding credit may be applied, and to impose a holding period for facilities obtained using the new entrant bidding credit. As the Bureaus explained when rejecting a similar request made by MEI and other commenters in Auction 70,89 implementation of these proposals would require amendment of the Commission’s competitive bidding and broadcast service rules, which can only be accomplished through a rulemaking proceeding.90 The Bureaus’ process for seeking comment on auction procedures is not the appropriate forum in which to raise such rule changes.91 84 See Minnesota Christian Broadcasters, Inc., Memorandum Opinion and Order, FCC 03-5, 18 FCC Rcd 614 (2003), aff’d sub nom. Carol DeLaHunt v. FCC, No. 03-1029 (D.C. Cir. Feb. 4, 2004) and Minnesota Christian Broadcasters, Inc. v. FCC, 411 F.3d 283 (D.C. Cir. 2005). 85 Reply Comments of the Minority Media and Telecommunications Council, filed April 1, 2009. 86 Sutton Reply Comments at 2. 87 Id. 88 Briarwood Media Reply to Comments, filed April 1, 2009. 89 See Auction of FM Broadcast Construction Permits Scheduled for March 7, 2007, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments and Other Procedures for Auction No. 70, DA 06-2248, Public Notice, 21 FCC Rcd 12957, 12974-75 ¶¶ 54-57 (MB/WTB 2006) (Auction 70 Procedures Public Notice). 90 See, e.g., 47 C.F.R. §§ 73.5007, 73.5008. 91 For the same reasons, the Bureaus are not able to consider Briarwood’s proposal to adopt a new “discount” on the filing fees when an application is submitted for a new allocation by anyone who has not owned a Commission licensed station within five years prior to the date of filing or previously filed for a new allocation. This Briarwood (continued….) Federal Communications Commission DA 09-810 19 D. Application Requirements 55. In addition to the ownership information required pursuant to Section 1.2112, applicants are required to establish on their short-form applications that they satisfy the eligibility requirements to qualify for a New Entrant Bidding Credit.92 In those cases where a New Entrant Bidding Credit is being sought, a certification under penalty of perjury must be provided in completing the applicant’s short-form application. An applicant claiming that it qualifies for a 35 percent new entrant bidding credit must certify that neither it nor any of its attributable interest holders have any attributable interests in any other media of mass communications. An applicant claiming that it qualifies for a 25 percent new entrant bidding credit must certify that neither it nor any of its attributable interest holders has any attributable interests in more than three media of mass communications, and must identify and describe such media of mass communications.93 1. Bidding Credits 56. Applicants that qualify for the New Entrant Bidding Credit, as specified in the applicable rule,94 are eligible for a bidding credit that represents the amount by which a bidder's winning bid is discounted. The size of a New Entrant Bidding Credit depends on the number of ownership interests in other media of mass communications that are attributable to the bidder-entity and its attributable interest- holders: · A 35 percent bidding credit will be given to a winning bidder if it, and/or any individual or entity with an attributable interest in the winning bidder, has no attributable interest in any other media of mass communications, as defined in 47 C.F.R. § 73.5008; · A 25 percent bidding credit will be given to a winning bidder if it, and/or any individual or entity with an attributable interest in the winning bidder, has an attributable interest in no more than three mass media facilities, as defined in 47 C.F.R. § 73.5008; · No bidding credit will be given if any of the commonly owned mass media facilities serve the same area as the broadcast station proposed in the auction, as defined in 47 C.F.R. § 73.5007(b), or if the winning bidder, and/or any individual or entity with an attributable interest in the winning bidder, has attributable interests in more than three mass media facilities. 57. Bidding credits are not cumulative; qualifying applicants receive either the 25 percent or the 35 percent bidding credit, but not both. Attributable interests are defined in 47 C.F.R. § 73.3555 and Note 2 of that section.95 Applicants should note that unjust enrichment provisions apply to a winning bidder that utilizes a bidding credit and subsequently seeks to assign or transfer control of its license or construction permit to an entity not qualifying for the same level of bidding credit.96 2. Installment Payments 58. Installment payment plans will not be available in Auction 79. (Continued from previous page) proposal is beyond the scope of this proceeding, which is confined to developing competitive bidding procedures for Auction 79. 92 See 47 C.F.R. §§ 1.2105(a), 73.3555 and Note 2, 73.5007, 73.5008. 93 See 47 C.F.R. §§ 73.5007, 73.5008. 94 See 47 C.F.R. § 73.5007. 95 See 47 C.F.R. § 73.5008. 96 See 47 C.F.R. § 73.5007(c). Federal Communications Commission DA 09-810 20 E. Disclosure of Bidding Arrangements 59. Applicants will be required to identify in their short-form application all parties with whom they have entered into any agreements, arrangements, or understandings of any kind relating to the construction permits being auctioned, including any agreements relating to post-auction market structure.97 60. Applicants also will be required to certify under penalty of perjury in their short-form applications that they have not entered and will not enter into any explicit or implicit agreements, arrangements or understandings of any kind with any parties, other than those identified in the application, regarding the amount of their bids, bidding strategies, or the particular construction permits on which they will or will not bid.98 If an applicant has had discussions, but has not reached an agreement by the short-form application filing deadline, it should not include the names of parties to the discussions on its application and may not continue such discussions with any applicants after the deadline.99 61. After the filing of short-form applications, the Commission’s rules do not prohibit a party holding a non-controlling, attributable interest in one applicant from acquiring an ownership interest in or entering into a joint bidding arrangement with other applicants, provided that: (i) the attributable interest holder certifies that it has not and will not communicate with any party concerning the bids or bidding strategies of more than one of the applicants in which it holds an attributable interest, or with which it has entered into a joint bidding arrangement; and (ii) the arrangements do not result in a change in control of any of the applicants.100 While the anti-collusion rules do not prohibit non-auction- related business negotiations among auction applicants, applicants are reminded that certain discussions or exchanges could touch upon impermissible subject matters because they may convey pricing information and bidding strategies.101 Such subject areas include, but are not limited to, issues such as management sales, local marketing agreements, rebroadcast agreements, and other transactional agreements.102 Further, as discussed above, compliance with the disclosure requirements of the Commission’s anti-collusion rule will not insulate a party from enforcement of the antitrust laws.103 F. Ownership Disclosure Requirements 62. The Commission specified in the Broadcast First Report and Order that, for purposes of determining eligibility to participate in a broadcast auction, all applicants must comply with the uniform Part 1 ownership disclosure standards and provide information required by Sections 1.2105 and 1.2112 of the Commission’s rules.104 Specifically, in completing the short-form application, applicants will be required to fully disclose information on the real party- or parties-in-interest and ownership structure of 97 47 C.F.R. §§ 1.2105(a)(2)(viii), (c)(1). 98 47 C.F.R. § 1.2105(a)(2)(ix). 99 Section I.B.2. “Prohibition of Collusion and Compliance with Antitrust Laws,” above. 100 47 C.F.R. §§ 1.2105(c)(4)(i), (ii). 101 Section I.B.2. “Prohibition of Collusion and Compliance with Antitrust Laws,” above. 102 See, e.g., Todd Stuart Noordyk, Memorandum Opinion and Order, FCC 01-275, 16 FCC Rcd 18113, 18117 (2001); see also Amendment of Part 1 of the Commission's Rules – Competitive Bidding Procedures, WT Docket No. 97-82, Third Report and Order and Second Further Notice of Proposed Rule Making, FCC 97-413, 13 FCC Rcd 374, 467 (1997) (“Part 1 Third Report and Order”). 103 Id. 104 47 C.F.R. § 1.2105 requires the disclosure on the short-form application of the applicant’s ownership information as set forth in 47 C.F.R. §§ 1.2105 and 1.2112. Federal Communications Commission DA 09-810 21 the applicant. The ownership disclosure standards for the short-form application are prescribed in Sections 1.2105 and 1.2112 of the Commission’s rules.105 Each applicant is responsible for information submitted in its short-form application being complete and accurate. 63. In certain circumstances, an applicant’s most current ownership information on file with the Commission, if in an electronic format compatible with the short-form application (FCC Form 175) (such as information submitted in an on-line FCC Form 602 or in an FCC Form 175 filed for a previous auction using ISAS) will automatically be entered into the applicant’s short-form application. Applicants are responsible for ensuring that the information submitted in their short-form application for Auction 79 is complete and accurate. Accordingly, applicants should carefully review any information automatically entered to confirm that it is complete and accurate as of the deadline for filing the short-form application. Applicants can update directly in the short-form application any information that was entered automatically and needs to be changed. G. Provisions Regarding Former and Current Defaulters 64. Current defaulters are not eligible to participate in Auction 79, but former defaulters can participate so long as they are otherwise qualified and, as discussed in Section III.D.3. below, make upfront payments that are fifty percent more than the normal upfront payment amounts.106 An applicant is considered a “current defaulter” when it, any of its affiliates, any of its controlling interests, or any of the affiliates of its controlling interests, are in default on any payment for any Commission construction permits or licenses (including down payments) or are delinquent on any non-tax debt owed to any Federal agency as of the filing deadline for short-form applications. An applicant is considered a “former defaulter” when it, any of its affiliates, any of its controlling interests, or any of the affiliates of its controlling interests, have defaulted on any Commission construction permit or license or been delinquent on any non-tax debt owed to any Federal agency, but have since remedied all such defaults and cured all of the outstanding non-tax delinquencies. 65. On the short-form application, an applicant must certify under penalty of perjury that it, its affiliates, its controlling interests, and the affiliates of its controlling interests, as defined by Section 1.2110 of the Commission’s rules,107 are not in default on any payment for a Commission construction permit or license (including down payments) and that it is not delinquent on any non-tax debt owed to any Federal agency.108 Each applicant must also state under penalty of perjury whether or not it, its affiliates, its controlling interests, and the affiliates of its controlling interests, have ever been in default on any Commission construction permit or license or have ever been delinquent on any non-tax debt owed to any Federal agency.109 Prospective applicants are reminded that submission of a false certification to the Commission is a serious matter that may result in severe penalties, including 105 Section 73.5002 of the Commission’s rules specifies the bidding procedures, certification requirements and the anti-collusion rules applicable to mutually exclusive applications for commercial broadcast services subject to auction. Subsection (b) of that rule requires the timely submission of short form applications, along with the required certifications, information and exhibits, pursuant to the provisions of 47 C.F.R. § 1.2105(a) and any Commission public notices. 47 C.F.R. § 1.2105 requires the disclosure on the short-form application of the applicant’s ownership information as set forth in 47 C.F.R. § 1.2112. 106 47 C.F.R. §§ 1.2105(a)(2)(x), 1.2105(b)(1), and 1.2106(a); see Part 1 Fifth Report and Order, 15 FCC Rcd at 15317 ¶ 42 and 142 (“If any one of an applicant’s controlling interests or their affiliates…is in default on any Commission licenses or is delinquent on any non-tax debt owed to any Federal agency at the time the applicant files it[s] FCC Form 175, the applicant will not be able to make the certification required by Section 1.2105(a)(2)(x)…and will not be eligible to participate in Commission auctions.”). 107 47 C.F.R. § 1.2110. 108 47 C.F.R. § 1.2105(a)(2)(x); see also Part 1 Fifth Report and Order, 15 FCC Rcd at 15317 ¶ 42 and n.142. 109 47 C.F.R. § 1.2105(a)(2)(xi); see also Part 1 Fifth Report and Order, 15 FCC Rcd at 15317 ¶ 42. Federal Communications Commission DA 09-810 22 monetary forfeitures, license revocations, exclusion from participation in future auctions, and/or criminal prosecution. These statements and certifications are prerequisites to submitting an application to participate in an FCC auction. 66. Applicants are encouraged to review the Bureaus’ previous guidance on default and delinquency disclosure requirements in the context of the short-form application process.110 For example, it has been determined that, to the extent that Commission rules permit late payment of regulatory or application fees accompanied by late fees, such debts will become delinquent for purposes of Sections 1.2105(a) and 1.2106(a) only after the expiration of a final payment deadline.111 Therefore, with respect to regulatory or application fees, the provisions of Sections 1.2105(a) and 1.2106(a) regarding default and delinquency in connection with competitive bidding are limited to circumstances in which the relevant party has not complied with a final Commission payment deadline.112 Parties are also encouraged to coordinate with the Commission’s Office of Managing Director or the Wireless Telecommunications Bureau’s Auctions and Spectrum Access Division staff if they have any questions about default and delinquency disclosure requirements. 67. The Commission considers outstanding debts owed to the United States Government, in any amount, to be a serious matter. The Commission adopted rules, including a provision referred to as the “red light rule,” that implement the Commission's obligations under the Debt Collection Improvement Act of 1996, which governs the collection of claims owed to the United States.113 Under the red light rule, the Commission will not process applications and other requests for benefits filed by parties that have outstanding debts owed to the Commission. In the same rulemaking order, the Commission explicitly declared, however, that the Commission's competitive bidding rules “are not affected” by the red light rule.114 As a consequence, the Commission's adoption of the red light rule does not alter the applicability of any of the Commission's competitive bidding rules, including the provisions and certifications of Sections 1.2105 and 1.2106, with regard to current and former defaults or delinquencies. 68. Applicants are reminded, however, that the Commission’s Red Light Display System, which provides information regarding debts owed to the Commission, may not be determinative of an auction applicant’s ability to comply with the default and delinquency disclosure requirements of 110 “WTB Reminds Prospective Broadband PCS Spectrum Auction Applicants of Default and Delinquency Disclosure Requirements,” Public Notice, DA 04-3491, 19 FCC Rcd 21920 (2004) (“Auction Default Disclosure Public Notice”). This public notice (Report No. AUC-04-58-E) may be found at http://wireless.fcc.gov/auctions/58/. 111 Letter to Cheryl A. Tritt, Esq., Morrison and Foerster, LLP, from Margaret Wiener, Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, DA 04-3685, 19 FCC Rcd 22907 (WTB 2004) (clarifying the term “debt” or “non-tax debt” as referenced in 47 C.F.R. §§ 1.2105(a) and 1.2106(a)). This letter may be found at: http://wireless.fcc.gov/auctions/58/. 112 Even where Commission rules expressly permit late payment, subject to payment of an additional late fee, and do not impose a final payment deadline, the Commission may in some cases issue a demand for payment by a date certain. See 47 C.F.R. § 1.1164(a). Failure to comply with the terms of a particular demand letter in the time period provided may render the subject debt delinquent, notwithstanding rules generally permitting late payment. 113 Amendment of Parts 0 and 1 of the Commission's Rules; Implementation of the Debt Collection Improvement Act of 1996 and Adoption of Rules Governing Applications or Requests for Benefits by Delinquent Debtors, MD Docket No. 02-339, Report and Order, FCC 04-72, 19 FCC Rcd 6540 (2004) (implementing Pub. L. No. 104-134, 110 Stat. 1321, 1358 (1996)) (“Debt Collection Report and Order”). 114 Debt Collection Report and Order, 19 FCC Rcd at 6541 n.11 (specifically mentions 47 C.F.R. §§ 1.2105(a)(2)(x) and (xi)). Federal Communications Commission DA 09-810 23 Section 1.2105.115 Thus, while the red light rule ultimately may prevent the processing of long-form applications by auction winners, an auction applicant’s “red light” status is not necessarily determinative of its eligibility to participate in an auction or of its upfront payment obligation. 69. Moreover, prospective applicants in Auction 79 should note that any long-form applications filed after the close of bidding will be reviewed for compliance with the Commission’s red light rule,116 and such review may result in the dismissal of a winning bidder’s long-form application.117 H. Optional Applicant Status Identification 70. Applicants owned by members of minority groups and/or women, as defined in Section 1.2110(c)(3),118 and rural telephone companies, as defined in Section 1.2110(c)(4), 119 may identify themselves regarding this status in filling out their short-form applications. This applicant status information is collected for statistical purposes only and assists the Commission in monitoring the participation of “designated entities” in its auctions.120 I. Minor Modifications to Short-Form Applications 71. After the deadline for filing short-form applications (FCC Form 175) at 6:00 p.m. ET on June 25, 2009, applicants are permitted to make only minor changes to their applications. Applicants are not permitted to make major modifications to their short-form applications (e.g., change their construction permit selections, change control of the applicant, change the certifying official, or claim eligibility for a higher percentage of bidding credit or change their identification of the application’s proposed facilities as noncommercial educational) after the short-form application deadline.121 Thus, any change in control of an applicant, resulting from a merger for example, will be considered a major modification to the applicant’s short-form application, which will consequently be dismissed.122 Permissible minor changes include, among other things, deletion and addition of authorized bidders (to a maximum of three) and revision of addresses and telephone numbers of the applicants and their contact persons. 72. Any application amendment and related statements of fact must be certified by: (1) the applicant, if the applicant is an individual, (2) one of the partners if the applicant is a partnership, (3) an officer, director, or duly authorized employee, if the applicant is a corporation, (4) a member who is an officer, if the applicant is an unincorporated association, (5) the trustee if the applicant is an amateur radio service club, or (6) a duly elected or appointed official who is authorized to make such certifications under the laws of the applicable jurisdiction, if the applicant is a governmental entity.123 115 Auction Default Disclosure Public Notice, DA 04-3491, 19 FCC Rcd at 21920 (addressing relationship between Commission’s Red Light Display System and short-form application default and delinquency disclosure requirements for auction applicants). 116 Debt Collection Report and Order, 19 FCC Rcd at 6540. See 47 C.F.R. § 1.1112. 117 Applicants that have their long-form application dismissed will be deemed to have defaulted and will be subject to default payments under 47 C.F.R. §§ 1,2104(g) and 1.2109(c). 118 47 C.F.R. § 1.2110(c)(3). 119 47 C.F.R. § 1.2110(c)(4). 120 Designated entities are defined as small businesses, businesses owned by members of minority groups and/or women, and rural telephone companies. See 47 C.F.R. § 1.2110(a). 121 47 C.F.R. § 1.2105(b); see also NCE Second Report and Order, 18 FCC Rcd at 6700. 122 We reiterate that, even if an applicant’s short-form application is dismissed, the applicant would remain subject to the anti-collusion rule until the down-payment deadline, which will be established after the auction closes. 123 See 47 C.F.R. § 1.917; see also 47 C.F.R. § 73.3513. Federal Communications Commission DA 09-810 24 73. If an applicant wishes to make permissible minor changes to its short-form application, such changes should be made electronically to its short-form application using the FCC Auction System whenever possible. Applicants are reminded to click on the SUBMIT button in the FCC Auction System for the changes to be submitted and considered by the Commission. After the revised application has been submitted, a confirmation page will be displayed that states the submission time and date, along with a unique file number.124 74. An applicant cannot use the FCC Auction System outside of the initial and resubmission filing windows to make changes to its short-form application other than administrative changes (e.g. changing certain contact information). If these or other permissible minor changes need to be made outside of these windows, the applicant must submit a letter briefly summarizing the changes and subsequently update its short-form application in ISAS once the system is available. Moreover, after the filing window has closed, ISAS will not permit applicants to make certain changes, such as the applicant’s legal classification and the identification of the application’s proposed facilities as noncommercial educational. 75. Any letter describing changes to an applicant’s short-form application should be submitted by e-mail to the following address: auction79@fcc.gov. The e-mail summarizing the changes must include a subject or caption referring to Auction 79 and the name of the applicant – for example, “RE: Changes to Auction 79 Short-Form Application of ABC Corp.” The Bureaus request that parties format any attachments to e-mail as Adobe® Acrobat® (pdf) or Microsoft® Word documents. Questions about short-form application amendments should be directed to the Auctions and Spectrum Access Division at (202) 418-0660. 76. Applicants must not submit application-specific material through the Commission’s Electronic Comment Filing System (“ECFS”), which was used for submitting comments regarding Auction 79. J. Maintaining Current Information in Short-Form Applications 77. Section 1.65 of the Commission's rules requires an applicant to maintain the accuracy and completeness of information furnished in its pending application and to notify the Commission within 30 days of any substantial change that may be of decisional significance to that application.125 Changes that cause a loss of or reduction in the percentage of bidding credit specified on the originally submitted FCC Form 175 must be reported immediately.126 If an amendment reporting substantial changes is a “major amendment,” as defined by Section 1.2105, the major amendment will not be accepted and may result in the dismissal of the short-form application.127 78. As noted above, after the short-form application filing deadline, applicants may make only minor changes to their short-form applications. Applicants must click on the SUBMIT button in the FCC Auction System for the changes to be submitted and considered by the Commission. In addition, an applicant cannot update its short-form application using the FCC Auction System after the initial and resubmission filing windows close. If Section 1.65 submissions are needed after these windows close, applicants must submit a letter, briefly summarizing the changes, by e-mail at the following address: 124 The Bureaus advise applicants to print and retain a copy of this confirmation page. 125 47 C.F.R. § 1.65. 126 For example, if ownership changes result in the attribution of new interest holders that affect the applicant’s qualifications for a new entrant bidding credit, such information must be clearly stated in the bidder’s amendment. See Liberty Productions, 16 FCC Rcd at 12078. Events occurring after the short-form filing deadline, such as the acquisition of attributable interests in media of mass communications, may also cause diminishment or loss of the bidding credit, and must be reported immediately. 127 47 C.F.R. § 1.2105(b)(2). Federal Communications Commission DA 09-810 25 auction79@fcc.gov. The e-mail summarizing the changes must include a subject or caption referring to Auction 79 and the name of the applicant. The Bureaus request that parties format any attachments to e-mail as Adobe® Acrobat® (pdf) or Microsoft® Word documents. III. PRE-AUCTION PROCEDURES A. Auction Seminar – June 16, 2009 79. On Tuesday, June 16, 2009, the Commission will conduct a seminar for parties interested in participating in Auction 79 at FCC headquarters, located at 445 12th Street, SW, Washington, DC. The seminar will provide attendees with information about pre-auction procedures, completing FCC Form 175, auction conduct, the FCC Auction System, auction rules, and FM broadcast service rules. The seminar will also provide an opportunity for prospective bidders to ask questions of FCC staff concerning the auction, auction procedures, filing requirements, and other matters related to this auction. 80. To register, please provide the information listed on Attachment E by fax, e-mail or telephone to the FCC by Friday, June 12, 2009. The seminar is free of charge. 81. For individuals who are unable to attend, a webcast of this seminar will be available from the FCC’s Auction 79 web page at http://wireless.fcc.gov/auctions/79/. Select the “Auction Seminar” link. The seminar webcast will also be archived for future viewing. B. Short-Form Applications – Due Prior to 6:00 p.m. ET on June 25, 2009 82. In order to be eligible to bid in this auction, applicants must first follow the procedures set forth in Attachment B to this Public Notice to submit a short-form application (FCC Form 175) electronically via the FCC Auction System.128 This application must be received at the Commission prior to 6:00 p.m. ET on June 25, 2009. Late applications will not be accepted. There is no application fee required when filing a FCC Form 175, but an applicant must submit a timely upfront payment to be eligible to bid.129 83. Applications may generally be filed at any time beginning at noon ET on June 16, 2009, until the filing window closes at 6:00 p.m. ET on June 25, 2009. Applicants are strongly encouraged to file early and are responsible for allowing adequate time for filing their applications. Applicants may update or amend their applications multiple times until the filing deadline on June 25, 2009. 84. An applicant must always click on the SUBMIT button on the “Certify & Submit” screen to successfully submit its FCC Form 175 and any modifications; otherwise the application or changes to the application will not be received or reviewed. Additional information about accessing, completing, and viewing the FCC Form 175 is included in Attachment B. FCC Auctions Technical Support is available at (877) 480-3201, option nine; (202) 414-1250; or (202) 414-1255 (text telephone (TTY)); hours of service are Monday through Friday, from 8:00 a.m. to 6:00 p.m. ET. In order to provide better service to the public, all calls to Technical Support are recorded. C. Application Processing and Minor Corrections 85. After the deadline for filing FCC Form 175 applications, the Commission will process all timely submitted applications to determine which are complete, and subsequently will issue a public notice identifying: (1) those applications that are complete; (2) those applications that are rejected; and (3) those applications that are incomplete because of minor defects that may be corrected. The public notice will include the deadline for resubmitting corrected applications. 128 47 C.F.R. § 1.2105(a). 129 See Section III.D. “Upfront Payments – Due July 31, 2009,” below. Federal Communications Commission DA 09-810 26 86. Non-mutually exclusive applications will be listed in a subsequent public notice to be released by the Bureaus. Such applications will not proceed to auction, but will proceed in accordance with instructions set forth in that public notice.130 All mutually exclusive applications will be considered under the relevant procedures for conflict resolution. Mutually exclusive applications proposing commercial stations will proceed to auction.131 In the NCE Second Report and Order, the Commission held that applications for NCE FM stations on nonreserved spectrum, filed during an FM filing window, will be returned as unacceptable for filing if mutually exclusive with any application for a commercial station.132 Accordingly, if an FCC Form 175 filed during the Auction 79 filing window identifying the application’s proposed station as noncommercial educational is mutually exclusive with any application filed during that window by an applicant for a commercial station, the former will be returned as unacceptable for filing.133 87. As described above, after the short-form application filing deadline on June 25, 2009, applicants may make only minor corrections to their applications.134 Applicants will not be permitted to make major modifications to their applications (e.g., change their construction permit selections, change control of the applicant, change the certifying official, claim eligibility for a higher percentage of bidding credit, or change their self-identification as NCE).135 88. Applicants should be aware the Commission staff will communicate only with an applicant’s contact person or certifying official, as designated on the applicant’s short-form application, unless the applicant’s certifying official or contact person notifies the Commission in writing that applicant’s counsel or other representative is authorized to speak on its behalf.136 Authorizations may be sent by e-mail to auction79@fcc.gov. D. Upfront Payments – Due July 31, 2009 89. In order to be eligible to bid in this auction, applicants must submit an upfront payment accompanied by an FCC Remittance Advice Form (FCC Form 159). After completing its short-form application, an applicant will have access to an electronic version of the FCC Form 159 that can be printed and sent by fax to U.S. Bank in St. Louis, Missouri. All upfront payments must be made as instructed in this Public Notice and must be received in the proper account at U.S. Bank before 6:00 p.m. ET on July 31, 2009. 130 See 47 C.F.R. § 73.3573(f)(4). 131 In the NCE Second Report and Order, the Commission determined that short-form applicants that do not identify themselves on their FCC Form 175 as “noncommercial educational” will be considered, as a matter of law, applicants for commercial broadcast stations. NCE Second Report and Order, 18 FCC Rcd at 6700 ¶ 22. 132 Id., 18 FCC Rcd at 6699-6701. See also 47 C.F.R. § 73.5002(b). 133 NCE Second Report and Order, 18 FCC Rcd at 6699-6701. See also 47 C.F.R. § 73.5002(b). 134 See Section II.I. “Minor Modifications to Short-Form Applications,” above. 135 47 C.F.R. § 1.2105(b); see also Two Way Radio of Carolina, Inc., Memorandum Opinion and Order, FCC 99- 189, 14 FCC Rcd 12035 (1999). 136 In no event, however, will the FCC send registration materials to anyone other than the contact person listed on the applicant’s FCC Form 175 or respond to a request for replacement registration materials from anyone other than the authorized bidder, contact person, or certifying official listed on the applicant’s FCC Form 175. See Section III.E. “Auction Registration,” below. Federal Communications Commission DA 09-810 27 1. Making Upfront Payments by Wire Transfer 90. Wire transfer payments must be received before 6:00 p.m. ET on July 31, 2009.137 No other payment method is acceptable.138 To avoid untimely payments, applicants should discuss arrangements (including bank closing schedules) with their bankers several days before they plan to make the wire transfer, and allow sufficient time for the transfer to be initiated and completed before the deadline. Applicants will need the following information: ABA Routing Number: 081000210 Receiving Bank: U.S. Bank St. Louis, MO BENEFICIARY: FCC/Account # 152307774819 Originating Bank Information (OBI Field): (Skip one space between each information item) “AUCTIONPAY” APPLICANT FCC REGISTRATION NUMBER (FRN): (same as FCC Form 159, block 21) PAYMENT TYPE CODE: (same as FCC Form 159, block 24A: “A79U”) FCC CODE 1: (same as FCC Form 159, block 28A: “79”) PAYER NAME: (same as FCC Form 159, block 2) LOCKBOX NO. # 979085 NOTE: The BNF and Lockbox number are specific to the upfront payments for this auction. Do not use BNF or Lockbox numbers from previous auctions. 91. At least one hour before placing the order for the wire transfer (but on the same business day), applicants must fax a completed FCC Form 159 (Revised 2/03) to U.S. Bank at (314) 418-4232. On the fax cover sheet, applicants should write “Wire Transfer – Auction Payment for Auction 79.” In order to meet the Commission’s upfront payment deadline, an applicant’s payment must be credited to the Commission's account before the deadline.139 The applicant is responsible for obtaining confirmation from its financial institution that U.S. Bank has timely received its upfront payment and deposited it in the proper account. 92. Please note that: · All payments must be made in U.S. dollars. · All payments must be made by wire transfer. · Upfront payments for Auction 79 go to a lockbox number different from the lockboxes used in previous FCC auctions. · Failure to deliver the upfront payment as instructed by the July 31, 2009, deadline will result in dismissal of the application and disqualification from participation in the auction. 137 An applicant must initiate the wire transfer through its bank, authorizing the bank to wire funds from the applicant’s account to the Commission’s auction payment lockbox bank, the U.S. Bank in St. Louis, Missouri. Additional information on wire transfers is available on the Commission’s web site at http://www.fcc.gov/fees/wiretran.html. 138 The Commission will not accept checks, credit cards, or automated clearing house (ACH) payments. 139 Letter to Patrick Shannon, Counsel for Lynch 3G Communications Corp., from Margaret W. Wiener, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, DA 03-1944, 18 FCC Rcd 11552 (WTB 2003). Federal Communications Commission DA 09-810 28 2. FCC Form 159 93. A completed FCC Remittance Advice Form (FCC Form 159, Revised 2/03) must be faxed to U.S. Bank to accompany each upfront payment. Proper completion of FCC Form 159 is critical to ensuring correct crediting of upfront payments. Detailed instructions for completion of FCC Form 159 are included in Attachment C to this Public Notice. An electronic pre-filled version of the FCC Form 159 is available after submitting the FCC Form 175. Payors using the pre-filled FCC Form 159 are responsible for ensuring that all of the information on the form, including payment amounts, is accurate. The FCC Form 159 can be completed electronically, but must be filed with U.S. Bank by fax. 3. Upfront Payments and Bidding Eligibility 94. The Commission has delegated to the Bureaus the authority and discretion to determine appropriate upfront payments for each auction.140 Upfront payments help deter frivolous or insincere bidding, and provide the Commission with a source of funds in the event that the bidder incurs liability during the auction. 95. Applicants that are former defaulters, as described above, must pay upfront payments 50 percent greater than non-former defaulters.141 For purposes of this calculation, the “applicant” includes the applicant itself, its affiliates, its controlling interests, and affiliates of its controlling interests, as defined by Section 1.2110 of the Commission’s rules.142 96. Applicants must make upfront payments to obtain bidding eligibility. The Bureaus proposed, in the Auction 79 Comment Public Notice, that the amount of the upfront payment would determine a bidder’s initial bidding eligibility, the maximum number of bidding units on which a bidder may place bids.143 Under the Bureaus’ proposal, in order to bid on a particular construction permit, a qualified bidder must have selected the construction permit on its FCC Form 175 and must have a current eligibility level that meets or exceeds the number of bidding units assigned to that construction permit. At a minimum, therefore, an applicant’s total upfront payment must be enough to establish eligibility to bid on at least one of the construction permits selected on its FCC Form 175, or else the applicant will not be eligible to participate in the auction. An applicant does not have to make an upfront payment to cover all construction permits the applicant selected on its FCC Form 175, but only enough to cover the maximum number of bidding units that are associated with construction permits on which the bidder wishes to place bids and hold provisionally winning bids at any given time.144 97. MEI contends that we should modify the auction rules so that any bidder that selects more than ten percent of the FM allotments offered for auction is required to make an upfront payment equal to the minimum opening bid amounts on all FM allotments selected. MEI states that the current rules allow applicants to select as many FM allotments as they wish while making a relatively minimal upfront payment, “depriv[ing] truly committed bidders form [sic] ever qualifying as a ‘singleton’ bidder [sic].” Minority Media supports this MEI proposal. On the other hand, Briarwood opposes this 140 Amendment of Part 1 of the Commission’s Rules – Competitive Bidding Proceeding, Order, Memorandum Opinion and Order and Notice of Proposed Rule Making, FCC 97-60, 12 FCC Rcd 5686, 5697-98 ¶ 16 (1997) (“Part 1 Order”). 141 Part 1 Fifth Report and Order, 15 FCC Rcd at 15316-17 ¶¶ 40-42; see also 47 C.F.R. § 1.2106(a); Section II.G. “Provisions Regarding Former and Current Defaulters,” above. 142 47 C.F.R. § 1.2110(c). 143 Auction 79 Comment Public Notice at ¶ 14. 144 Provisionally winning bids are bids that would become final winning bids if the auction were to close after the given round. See Section IV.B.4. “Provisionally Winning Bids,” below. Federal Communications Commission DA 09-810 29 proposed increase in upfront payments and argues that the increase would create an undue hardship for new companies by requiring increased capital to participate in the auction.145 98. The Bureaus decline to adopt for Auction 79 MEI’s suggestions to impose additional upfront payment requirements on applicants selecting a certain number of construction permits. Allowing applicants to select multiple construction permits provides bidders maximum flexibility to implement backup strategies in response to price information developed as the auction continues. To require additional upfront payments, as MEI suggests, would serve only to discourage or punish those applicants desiring to keep their bidding options open, and would be contrary to the goal of fair, open and robust auctions. We therefore decline to implement these changes. 99. In the Auction 79 Comment Public Notice, the Bureaus proposed upfront payments for each construction permit taking into account various factors related to the efficiency of the auction process and the potential value of similar spectrum and sought comment on this proposal. The Bureaus did not receive any comments in response to the proposed upfront payments, or on its proposal that the upfront payment amount would determine a bidder’s initial bidding eligibility. Therefore, we adopt the upfront payments and bidding units we proposed for each construction permit in Auction 79, which are set forth in Attachment A of this Public Notice. 100. In calculating its upfront payment amount, an applicant should determine the maximum number of bidding units on which it may wish to be active (bid on or hold provisionally winning bids on) in any single round, and submit an upfront payment amount covering that number of bidding units.146 In order to make this calculation, an applicant should add together the upfront payments for all construction permits on which it seeks to be active in any given round. Applicants should check their calculations carefully, as there is no provision for increasing a bidder’s eligibility after the upfront payment deadline. Example: Upfront Payments and Bidding Flexibility Construction Permit Market Name Bidding Units Upfront Payment MM-FM626-A Boligee, AL 10,000 $10,000 MM-FM627-A Maplesville, AL 15,000 $15,000 If a bidder wishes to bid on both construction permits in a round, it must have selected both on its FCC Form 175 and purchased at least 25,000 bidding units (10,000 + 15,000). If a bidder only wishes to bid on one, but not both, purchasing 15,000 bidding units would meet the eligibility requirement for either construction permit. The bidder would be able to bid on either construction permit, but not both at the same time. If the bidder purchased only 10,000 bidding units, it would have enough eligibility for the Boligee, AL construction permit but not for the Maplesville, AL construction permit. 145 Briarwood Reply Comments at 2. 146 A qualified bidder’s maximum eligibility will not exceed the sum of the bidding units associated with the total number of construction permits selected on its FCC Form 175. In some cases a qualified bidder's maximum eligibility may be less than the amount of its upfront payment because the qualified bidder has either previously been in default on a Commission construction permit or license or delinquent on non-tax debt owed to a Federal agency (see 47 C.F.R. § 1.2106(a)), or has submitted an upfront payment that exceeds the total amount of bidding units associated with the construction permits it selected on its FCC Form 175 application. Federal Communications Commission DA 09-810 30 101. If an applicant is a former defaulter, it must calculate its upfront payment for all of its selected construction permits by multiplying the number of bidding units on which it wishes to be active by 1.5.147 In order to calculate the number of bidding units to assign to former defaulters, the Commission will divide the upfront payment received by 1.5 and round the result up to the nearest bidding unit.148 E. Auction Registration 102. Approximately ten days before the auction, the Bureaus will issue a public notice announcing all qualified bidders for the auction. Qualified bidders are those applicants with submitted FCC Form 175 applications that are deemed complete and timely upfront payments that are sufficient to make them eligible to bid. 103. All qualified bidders are automatically registered for the auction. Registration materials will be distributed prior to the auction by overnight mail. The mailing will be sent only to the contact person at the contact address listed in the FCC Form 175 and will include the SecurID® tokens that will be required to place bids, the “Integrated Spectrum Auction System (ISAS) Bidder’s Guide,” and the Auction Bidder Line phone number. 104. Qualified bidders that do not receive this registration mailing will not be able to submit bids. Therefore, any qualified bidder that has not received this mailing by noon on Wednesday, August 26, 2009, should call (717) 338-2868. Receipt of this registration mailing is critical to participating in the auction, and each applicant is responsible for ensuring it has received all of the registration material. 105. In the event that SecurID® tokens are lost or damaged, only a person who has been designated as an authorized bidder, the contact person, or the certifying official on the applicant’s short- form application may request replacements. Qualified bidders requiring the replacement of these items must call Technical Support at (877) 480-3201, option nine; (202) 414-1250; or (202) 414-1255 (TTY). F. Remote Electronic Bidding 106. The Commission will conduct this auction over the Internet, and telephonic bidding will be available as well. Only qualified bidders are permitted to bid. Each applicant should indicate its bidding preference – electronic or telephonic – on its FCC Form 175. In either case, each authorized bidder must have its own SecurID® token, which the Commission will provide at no charge. Each applicant with one authorized bidder will be issued two SecurID® tokens, while applicants with two or three authorized bidders will be issued three tokens. For security purposes, the SecurID® tokens, the telephonic bidding telephone number, and the “Integrated Spectrum Auction System (ISAS) Bidder’s Guide” are only mailed to the contact person at the contact address listed on the FCC Form 175. Each SecurID® token is tailored to a specific auction. SecurID® tokens issued for other auctions or obtained from a source other than the FCC will not work for Auction 79. 107. Please note that the SecurID® tokens can be recycled, and the Bureaus encourage bidders to return the tokens to the FCC. The Bureaus will provide pre-addressed envelopes that bidders may use to return the tokens once the auction has ended. G. Mock Auction – August 28, 2009 108. All qualified bidders will be eligible to participate in a mock auction on Friday, August 28, 2009. The mock auction will enable applicants to become familiar with the FCC Auction System 147 47 C.F.R. § 1.2106(a). 148 If a former defaulter fails to submit a sufficient upfront payment to establish eligibility to bid on at least one of the construction permits selected on its short-form application, the applicant will not be eligible to participate in the auction. Federal Communications Commission DA 09-810 31 prior to the auction. Participation by all bidders is strongly recommended. Details will be announced by public notice. IV. AUCTION EVENT 109. The first round of bidding for Auction 79 will begin on Tuesday, September 1, 2009. The initial bidding schedule will be announced in a public notice listing the qualified bidders, which is to be released approximately 10 days before the start of the auction. A. Auction Structure 1. Simultaneous Multiple Round Auction 110. In the Auction 79 Comment Public Notice, the Bureaus proposed to auction all construction permits in Auction 79 in a single auction using the Commission’s standard simultaneous multiple-round (“SMR”) auction format.149 This type of auction offers every construction permit for bid at the same time and consists of successive bidding rounds in which eligible bidders may place bids on individual construction permits. A bidder may bid on, and potentially win, any number of construction permits. Typically, bidding remains open on all construction permits until bidding stops on every construction permit. 111. As it did in its comments for Auction 70,150 MEI suggests we modify the auction rules to state that once a bid is placed on an allotment, and no bids are placed on that allotment for six rounds following that bid, the auction of that allotment be deemed closed. It states that the current rules cause bidders to expend significant funds monitoring the auction’s progress to ensure that they have not been outbid many rounds after placing their bid. Minority Media and Sutton state support for this MEI proposal, arguing respectively that it would increase transparency and expedite the bidding process,151 while it would prevent “last-minute, predatory bidding.”152 Briarwood also wishes to expedite the bidding process and reduce required bid monitoring, but it proposes reducing the number of bidding rounds from six to three.153 112. The Commission has found that in most circumstances an SMR auction format is the best method to advance the goals of competitive bidding.154 This format generates the information about relative prices during the course of the auction and provides bidders with flexibility to pursue back-up strategies. Furthermore, an SMR auction format is likely to place construction permits in the hands of the bidders that are most likely to put the spectrum to effective and efficient use. The Bureaus previously rejected MEI’s similar proposal in Auction 70,155 noting that, as here, MEI provides no specific reasons why these conclusions based on the public interest do not apply to this auction. As we pointed out previously,156 adoption of MEI’s proposal would reduce the flexibility of bidders to implement backup strategies in response to price information developed as the auction continues. We therefore conclude that it is operationally feasible and appropriate to auction the FM broadcast stations 149 Auction 79 Comment Public Notice at ¶ 5. 150 See Auction 70 Procedures Public Notice, 21 FCC Rcd at 12986 ¶¶ 110-111. 151 Reply Comments of the Minority Media and Telecommunications Council, filed April 1, 2009. Minority Media actually proposes a different change to the stopping rule. See ¶¶ 132-133, below. 152 Sutton Reply Comments at 3. 153 Briarwood Media Reply to Comments, filed April 1, 2009. 154 Competitive Bidding Second Report and Order, 9 FCC Rcd at 2366. 155 See Auction 70 Procedures Public Notice, 21 FCC Rcd at 12986 ¶¶ 110-111. 156 Id. Federal Communications Commission DA 09-810 32 construction permits through a simultaneous multiple round auction, and we decline to adopt the proposals of MEI, Briarwood, or Minority Media. Unless otherwise announced, bids will be accepted on all construction permits in each round of the auction until bidding stops on every construction permit. 2. Eligibility and Activity Rules 113. As discussed above, we will use upfront payments to determine initial (maximum) eligibility (as measured in bidding units) for Auction 79.157 The amount of the upfront payment submitted by a bidder determines initial bidding eligibility, the maximum number of bidding units on which a bidder may be active. As noted earlier, each construction permit is assigned a specific number of bidding units listed in Attachment A. Bidding units for a given construction permit do not change as prices rise during the auction. A bidder’s upfront payment is not attributed to specific construction permits. Rather, a bidder may place bids on any of the construction permits selected on its short-form application as long as the total number of bidding units associated with those construction permits does not exceed its current eligibility. Eligibility cannot be increased during the auction; it can only remain the same or decrease. Thus, in calculating its upfront payment amount, an applicant must determine the maximum number of bidding units it may wish to bid on or hold provisionally winning bids on in any single round, and submit an upfront payment amount covering that total number of bidding units. At a minimum, an applicant’s upfront payment must cover the bidding units for at least one of the construction permits it selected on its short-form application. The total upfront payment does not affect the total dollar amount a bidder may bid on any given construction permit. 114. In order to ensure that an auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. Bidders are required to be active on a specific minimum percentage of their current bidding eligibility during each round of the auction. 115. A bidder’s activity level in a round is the sum of the bidding units associated with any construction permits covered by new and provisionally winning bids. A bidder is considered active on a construction permit in the current round if it is either the provisionally winning bidder at the end of the previous bidding round or if it submits a bid in the current round (see “Bid Amounts” in Section IV.B.3., below). 116. The Bureaus received no comments on the use of upfront payments to determine a bidder’s initial maximum eligibility. Because these procedures (as set forth under “Auction Stages” in Section IV.A.3. and “Stage Transitions” in Section IV.A.4. below) have proven successful in maintaining the pace of previous auctions, the Commission adopts them for Auction 79. Failure to maintain the requisite activity level will result in the use of an activity rule waiver, if any remain, or a reduction in the bidder’s eligibility, possibly curtailing or eliminating the bidder’s ability to place additional bids in the auction.158 3. Auction Stages 117. In the Auction 79 Comment Public Notice, the Bureaus proposed to conduct the auction in two stages and employ an activity rule.159 Under the Bureaus’ proposal a bidder desiring to maintain its current bidding eligibility would be required to be active on construction permits representing at least 75 percent of its current bidding eligibility, during each round of Stage One, and at least 95 157 See Section III.D.3. “Upfront Payments and Bidding Eligibility,” above. 158 See Section IV.A.5. “Activity Rule Waivers,” below. 159 Auction 79 Comment Public Notice at ¶¶ 15-18. Federal Communications Commission DA 09-810 33 percent of its current bidding eligibility in Stage Two. The Commission received no comments on this proposal. 118. The Bureaus have the discretion to further alter the activity requirements before and/or during the auction as circumstances warrant, and also have other mechanisms by which it may influence the speed of an auction. We find, for now, that two stages for an activity requirement adequately balances the desire to conclude the auction quickly with the need to give sufficient time for bidders to consider the status of the bidding and to place bids. Therefore, we adopt the two stages as described in more detail immediately below. 119. Stage One: During the first stage of the auction, a bidder desiring to maintain its current bidding eligibility will be required to be active on construction permits representing at least 75 percent of its current bidding eligibility in each bidding round. Failure to maintain the required activity level will result in the use of an activity rule waiver or, if the bidder has no activity rule waivers remaining, a reduction in the bidder’s bidding eligibility in the next round. During Stage One, reduced eligibility for the next round will be calculated by multiplying the bidder’s current round activity (the sum of bidding units of the bidder’s provisionally winning bids and bids during the current round) by four-thirds (4/3). 120. Stage Two: During the second stage of the auction, a bidder desiring to maintain its current bidding eligibility is required to be active on 95 percent of its current bidding eligibility. Failure to maintain the required activity level will result in the use of an activity rule waiver or, if the bidder has no activity rule waivers remaining, a reduction in the bidder’s bidding eligibility in the next round. During Stage Two, reduced eligibility for the next round will be calculated by multiplying the bidder’s current round activity (the sum of bidding units of the bidder’s provisionally winning bids and bids during the current round) by twenty-nineteenths (20/19). CAUTION: Since activity requirements increase in Stage Two, bidders must carefully check their activity during the first round following a stage transition to ensure that they are meeting the increased activity requirement. This is especially critical for bidders that have provisionally winning bids and do not plan to submit new bids. In past auctions, some bidders have inadvertently lost bidding eligibility or used an activity rule waiver because they did not re-verify their activity status at stage transitions. Bidders may check their activity against the required activity level by logging into the FCC Auction System. 121. Because the foregoing procedures have proven successful in maintaining the proper pace in previous auctions, we adopt them for Auction 79. 4. Stage Transitions 122. In the Auction 79 Comment Public Notice, the Bureaus proposed that they would advance the auction to the next stage (i.e., from Stage One to Stage Two) after considering a variety of measures of auction activity, including, but not limited to, the percentages of construction permits (as measured in bidding units) on which there are new bids, the number of new bids, and the increase in revenue.160 The Bureaus further proposed that they would retain the discretion to change the activity requirements during the auction. For example, the Bureaus could decide not to transition to Stage Two if it believes the auction is progressing satisfactorily under the Stage One activity requirement, or to transition to Stage Two with an activity requirement that is higher or lower than the 95 percent. The Bureaus proposed to alert bidders of stage advancements by announcement during the auction. The Bureaus received no comments on this issue. 160 Id. at ¶¶ 15-16. Federal Communications Commission DA 09-810 34 123. We adopt our proposal for stage transitions. Thus, the auction will start in Stage One.161 The Bureaus will regulate the pace of the auction by announcement. The Bureaus retain the discretion to transition the auction to Stage Two, to add an additional stage with a higher activity requirement, not to transition to Stage Two, and to transition to Stage Two with an activity requirement that is higher or lower than 95 percent. This determination will be based on a variety of measures of auction activity, including, but not limited to, the number of new bids and the percentages of construction permits (as measured in bidding units) on which there are new bids.162 5. Activity Rule Waivers 124. In the Auction 79 Comment Public Notice, the Bureaus proposed that each bidder in the auction be provided with three activity rule waivers.163 We received no comments on this issue. 125. Therefore, we adopt our proposal to provide bidders with three activity rule waivers. Bidders may use an activity rule waiver in any round during the course of the auction. Use of an activity rule waiver preserves the bidder’s current bidding eligibility despite the bidder’s activity in the current round being below the required minimum activity level. An activity rule waiver applies to an entire round of bidding and not to a particular construction permit. Activity rule waivers can be either applied proactively by the bidder (a “proactive waiver”) or applied automatically by the FCC Auction System (an “automatic waiver”) and are principally a mechanism for auction participants to avoid the loss of bidding eligibility in the event that exigent circumstances prevent them from placing a bid in a particular round. 126. The FCC Auction System assumes that bidders with insufficient activity would prefer to apply an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver at the end of any bidding round where a bidder’s activity level is below the minimum required unless (1) there are no activity rule waivers available or (2) the bidder overrides the automatic application of a waiver by reducing eligibility. If a bidder has no waivers remaining and does not satisfy the activity requirement, the FCC Auction System will permanently reduce the bidder’s eligibility, possibly curtailing or eliminating the bidder’s ability to place additional bids in the auction. 127. A bidder with insufficient activity that wants to reduce its bidding eligibility rather than use an activity rule waiver must affirmatively override the automatic waiver mechanism during the bidding round by using the “reduce eligibility” function in the FCC Auction System. In this case, the bidder’s eligibility is permanently reduced to bring the bidder into compliance with the activity rules as described in “Auction Stages” (see Section IV.A.3. above). Once eligibility has been reduced, a bidder will not be permitted to regain its lost bidding eligibility even if the round has not yet ended. 128. Finally, a bidder may apply an activity rule waiver proactively as a means to keep the auction open without placing a bid. If a bidder proactively applies an activity waiver (using the “apply waiver” function in the FCC Auction System) during a bidding round in which no bids are placed the auction will remain open and the bidder’s eligibility will be preserved. However, an automatic waiver applied by the FCC Auction System in a round in which there are no new bids or proactive waivers will not keep the auction open. A bidder cannot submit a proactive waiver after submitting a bid in a round, 161 The stage of the auction does not affect the auction stopping rules; the auction may conclude in Stage One. See Section IV.A.6. “Auction Stopping Rules,” below. 162 When monitoring activity for determining when to change stages, we may consider the percentage of bidding units of the construction permits receiving new provisionally winning bids, excluding any FCC-held permits. In past auctions, the Bureaus have generally changed stages when this measure was approximately twenty percent or below for three consecutive rounds of bidding. 163 Auction 79 Comment Public Notice at ¶ 23. Federal Communications Commission DA 09-810 35 and submitting a proactive waiver will preclude a bidder from placing any bids in that round. It is important for bidders to understand that applying a waiver is irreversible. Once a bidder submits a proactive waiver, the bidder cannot unsubmit the waiver even if the round has not yet ended. 6. Auction Stopping Rules 129. For Auction 79, the Bureaus proposed to employ a simultaneous stopping rule approach.164 A simultaneous stopping rule means that all construction permits remain available for bidding until bidding closes simultaneously on all construction permits. More specifically, bidding will close simultaneously on all construction permits after the first round in which no bidder submits any new bids or applies a proactive waiver. 130. The Bureaus also sought comment on alternative versions of the simultaneous stopping rule for Auction 79: Option 1. The auction would close for all construction permits after the first round in which no bidder applies a waiver or places any new bids on any construction permit on which it is not the provisionally winning bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a construction permit for which it is the provisionally winning bidder would not keep the auction open under this modified stopping rule. Option 2. The auction would end after a specified number of additional rounds. If the Bureaus invoke this special stopping rule, it will accept bids in the specified final round(s) and the auction will close. Option 3. The auction would remain open even if no bidder places any new bids or applies a waiver. In this event, the effect will be the same as if a bidder had applied a waiver. Thus, the activity rule will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use a waiver. 131. The Bureaus proposed to exercise these options only in circumstances such as where the auction is proceeding unusually slowly or quickly, where there is minimal overall bidding activity, or where it appears likely that the auction will not close within a reasonable period of time or will close prematurely.165 The Bureaus noted that before exercising these options, they are likely to attempt to change the pace of the auction by, for example, changing the number of bidding rounds per day and/or changing minimum acceptable bids.166 132. As previously discussed with regard to the use of a simultaneous multiple round auction design, MEI, Minority Media and Briarwood propose stopping procedures which differ from the stopping procedures proposed by the Bureaus. Minority Media’s proposal is slightly different from the proposals of MEI and Briarwood in that Minority Media proposes that bidding would be stopped on a particular allotment six rounds after an initial bid on that allotment. By creating a final bidding round, Minority Media’s proposed stopping procedure would significantly alter the dynamics of the SMR auction design. In particular, Minority Media’s proposal would limit price discovery, encourage undesirable strategic bidding behavior, and reduce the likelihood that the auction will award an allotment to the bidder that places the highest value on the particular allotment. To avoid undermining our auction design in this fashion, we reject this Minority Media proposal. 133. In contrast to the Minority Media proposal, MEI proposes that bidding would be stopped on a particular allotment if once a bid is placed, there are no further bids for six consecutive rounds. 164 Auction 79 Comment Public Notice at ¶¶ 9-11. 165 Id. at ¶ 11. 166 Id. Federal Communications Commission DA 09-810 36 Sutton supports this MEI proposal.167 Briarwood proposes that bidding would be stopped on a particular allotment if once a bid is placed, there are no further bids for three consecutive rounds. We recognize the concerns of MEI and Briarwood that it may appear unproductive for a provisionally winning bidder to spend time monitoring its bid over multiple rounds without subsequent bids on that allotment. For this reason, the Bureaus use a number of tools, including increasing the number of rounds per day, raising the activity requirement, and changing the minimum acceptable bids, to try to bring the auction to a more expeditious close after bidding activity has slowed. In addition, the elimination of bid withdrawals in this auction will limit the ability of bidders with provisionally wining bids on one allotment to switch to bidding on another allotment late in the auction. The Bureaus, however, balance this concern about the length of bidding with an interest in providing bidders, especially budget constrained bidders, with more flexibility to implement backup strategies in response to price information revealed in the course of the auction. Accordingly, we reject the MEI and Briarwood proposed stopping procedures. 134. Because prior auction experiences demonstrate that the stopping rules proposed by the Bureaus in the Auction 79 Comment Public Notice balance the interests of administrative efficiency and maximum bidder participation, the Bureaus find that these proposed stopping rules are appropriate for Auction 79 and adopt them. Auction 79 will begin under the simultaneous stopping rule approach, and the Bureaus will retain the discretion to employ the other versions of the stopping rule. Moreover, the Bureaus may use the modified stopping rule with or without prior announcement during the auction. 7. Auction Delay, Suspension, or Cancellation 135. In the Auction 79 Comment Public Notice, the Bureaus proposed that, by public notice or by announcement during the auction, they may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding.168 The Bureaus received no comment on this issue. 136. Because our approach to notification of delay during an auction has proven effective in resolving exigent circumstances in previous auctions, we adopt the Bureaus’ proposed rules regarding auction delay, suspension, or cancellation. By public notice or by announcement during the auction, the Bureaus may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, the Bureaus, in their sole discretion, may elect to resume the auction starting from the beginning of the current round, resume the auction starting from some previous round, or cancel the auction in its entirety. Network interruption may cause the Bureaus to delay or suspend the auction. We emphasize that exercise of this authority is solely within the discretion of the Bureaus, and its use is not intended to be a substitute for situations in which bidders may wish to apply their activity rule waivers. B. Bidding Procedures 1. Round Structure 137. The initial schedule of bidding rounds will be announced in the public notice listing the qualified bidders, which is released approximately 10 days before the start of the auction. Each bidding round is followed by the release of round results. Multiple bidding rounds may be conducted in a given day. Details regarding round results formats and locations will also be included in the qualified bidders public notice. 167 Sutton Reply Comments at 3-4. 168 Id. at ¶ 12. Federal Communications Commission DA 09-810 37 138. The Bureaus have the discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders’ need to study round results and adjust their bidding strategies. The Bureaus may increase or decrease the amount of time for the bidding rounds, the amount of time between rounds, or the number of rounds per day, depending upon bidding activity and other factors. 2. Reserve Price and Minimum Opening Bids 139. Section 309(j) of the Communications Act of 1934, as amended, calls upon the Commission to prescribe methods by which a reasonable reserve price will be required or a minimum opening bid established when applications for FCC licenses or construction permits are subject to auction (i.e., because they are mutually exclusive), unless the Commission determines that a reserve price or minimum opening bid is not in the public interest.169 Consistent with this mandate, the Commission directed the Bureaus to seek comment on the use of a minimum opening bid and/or reserve price prior to the start of each auction.170 Among other factors, the Bureaus must consider the amount of spectrum being auctioned, levels of incumbency, the availability of technology to provide service, the size of the geographic service areas, the extent of interference with other spectrum bands, and any other relevant factors that could have an impact on the spectrum being auctioned.171 The Commission concluded that the Bureaus should have the discretion to employ either or both of these mechanisms for future auctions.172 140. In the Auction 79 Comment Public Notice, the Bureaus did not propose to establish a reserve price for the construction permits to be offered in Auction 79. This is consistent with policy applied in earlier broadcast spectrum auctions. The Bureaus, however, did propose to establish minimum opening bids for each construction permit, reasoning that a minimum opening bid, which has been used in other auctions, is an effective bidding tool for accelerating the competitive bidding process.173 Specifically, a minimum opening bid was proposed for each construction permit listed in Attachment A. The minimum opening bid was determined by taking into account various factors relating to the efficiency of the auction and the potential value of the spectrum, including the type of service and class of facility offered, market size, population covered by the proposed FM broadcast facility, industry cash flow data, and recent broadcast transactions. The Bureaus sought comment on the proposed minimum opening bids. The Commission did not receive any comments addressing the proposed minimum opening bids. Accordingly, the Bureaus adopt the proposed minimum opening bid amounts. 141. The specific minimum opening bid amounts for the construction permits available in Auction 79 are set forth in Attachment A. 3. Bid Amounts 142. In the Auction 79 Comment Public Notice, the Bureaus proposed that in each round, eligible bidders be able to place a bid on a given construction permit in any of up to nine different amounts.174 Under the proposal, the FCC Auction System interface will list the nine acceptable bid 169 47 U.S.C. § 309(j)(4)(F). 170 Part 1 Third Report and Order, FCC 97-413, 13 FCC Rcd at 455-56 ¶ 141. 171 Id. 172 Id. 173 Auction 79 Comment Public Notice at ¶ 26. 174 Bidders must have sufficient eligibility to place a bid on the particular construction permit. See Section III.D.3 “Upfront Payments and Bidding Eligibility,” above. Federal Communications Commission DA 09-810 38 amounts for each construction permit.175 The Bureaus received no comments on this proposal; therefore, we adopt our proposal. 143. The first of the acceptable bid amounts is called the minimum acceptable bid amount. The minimum acceptable bid amount for a construction permit will be equal to its minimum opening bid amount until there is a provisionally winning bid on the construction permit. After there is a provisionally winning bid for a permit, the minimum acceptable bid amount will be a percentage higher. That is, the minimum acceptable bid amount will be calculated by multiplying the provisionally winning bid amount times one plus the minimum acceptable bid percentage. For example, if the minimum acceptable bid percentage is 10 percent, the minimum acceptable bid amount will equal (provisionally winning bid amount) * (1.10), rounded.176 144. In the Auction 79 Comment Public Notice, we proposed to use a minimum acceptable bid percentage of 10 percent. The Bureaus did not receive any comments on this proposal. Our experience in previous broadcast auctions assures us that a bid increment percentage of 10 percent is sufficient to ensure active bidding. Therefore, we will begin the auction with a minimum acceptable bid percentage of 10 percent 145. The eight additional bid amounts are calculated using the minimum acceptable bid amount and a bid increment percentage. The first additional acceptable bid amount equals the minimum acceptable bid amount times one plus the bid increment percentage, rounded. If, for example, the increment percentage is 10 percent, the calculation is (minimum acceptable bid amount) * (1 + 0.10), rounded, or (minimum acceptable bid amount) * 1.10, rounded; the second additional acceptable bid amount equals the minimum acceptable bid amount times one plus two times the bid increment percentage, rounded, or (minimum acceptable bid amount) * 1.20, rounded; the third additional acceptable bid amount equals the minimum acceptable bid amount times one plus three times the bid increment percentage, rounded, or (minimum acceptable bid amount) * 1.30, rounded; etc. We will round the results of these calculations using our standard rounding procedures.177 Note that the bid increment percentage need not be the same as the minimum acceptable bid percentage. 146. In the Auction 79 Comment Public Notice, we proposed to use a bid increment percentage that also is 10 percent. We received no comment on this issue. We believe that a bid increment percentage of 10 percent will give bidders the flexibility to speed up the pace of the auction, if appropriate. We therefore adopt our proposal, and will begin the auction with a bid increment percentage of 10 percent. 147. The Bureaus did not receive any comments on their proposal to retain the discretion to change the minimum acceptable bid amounts, the minimum acceptable bid percentage, and the bid increment percentage if they determine that circumstances so dictate. The Bureaus will do so by announcement in the FCC Auction System during the auction. 4. Provisionally Winning Bids 148. At the end of each bidding round, a “provisionally winning bid” will be determined based on the highest bid amount received for each construction permit. A provisionally winning bid will remain the provisionally winning bid until there is a higher bid on the same construction permit at the close of a subsequent round. Provisionally winning bids at the end of the auction become the winning 175 In the event of duplicate bid amounts due to rounding, the FCC Auction System will omit the duplicates and will list fewer acceptable bid amounts for the license. 176 Results above $10,000 are rounded to the nearest $1,000; results below $10,000 but above $1,000 are rounded to the nearest $100; and results below $100 are rounded to the nearest $10 177 Id. Federal Communications Commission DA 09-810 39 bids. Bidders are reminded that provisionally winning bids count toward activity for purposes of the activity rule.178 149. In the Auction 79 Comment Public Notice, the Bureaus proposed to use a random number generator to select a single provisionally winning bid in the event of identical high bid amounts being submitted on a construction permit in a given round (i.e., tied bids).179 No comments were received on this proposal. 150. Hence, we adopt the proposal described above. The FCC Auction System will assign a random number to each bid upon submission. The tied bid with the highest random number wins the tiebreaker, and becomes the provisionally winning bid. Bidders, regardless of whether they hold a provisionally winning bid, can submit higher bids in subsequent rounds. However, if the auction were to end with no other bids being placed, the winning bidder would be the one that placed the provisionally winning bid. 5. Bidding 151. All bidding will take place remotely either through the FCC Auction System or by telephonic bidding. There will be no on-site bidding during Auction 79. Please note that telephonic bid assistants are required to use a script when entering bids placed by telephone. Telephonic bidders are therefore reminded to allow sufficient time to bid by placing their calls well in advance of the close of a round. The length of a call to place a telephonic bid may vary; please allow a minimum of ten minutes. 152. A bidder’s ability to bid on specific construction permits is determined by two factors: (1) the construction permits selected on the bidder’s FCC Form 175 and (2) the bidder’s eligibility. The bid submission screens will allow bidders to submit bids on only those construction permits the bidder selected on its FCC Form 175. 153. In order to access the bidding function of the FCC Auction System, bidders must be logged in during the bidding round using the passcode generated by the SecurID® token and a personal identification number (“PIN”) created by the bidder. Bidders are strongly encouraged to print a “round summary” for each round after they have completed all of their activity for that round. 154. In each round, eligible bidders will be able to place bids on a given construction permit in any of nine different bid amounts.180 For each construction permit, the FCC Auction System will list the nine acceptable bid amounts in a drop-down box.181 Bidders use the drop-down box to select from among the acceptable bid amounts. The FCC Auction System also includes an “upload” function that allows bidders to upload text files containing bid information. 155. Until a bid has been placed on a construction permit, the minimum acceptable bid amount for that construction permit will be equal to its minimum opening bid amount. Once there are bids on a construction permit, minimum acceptable bids for a construction permit for the following round will be determined as described in Section IV.B.3, above. 156. During a round, an eligible bidder may submit bids for as many construction permits as it wishes, (providing that it is eligible to bid), remove bids placed in the current bidding round, or permanently reduce eligibility. If a bidder submits multiple bids for the same construction permit in the same round – multiple bids on the exact same construction permit, the system takes the last bid entered 178 Section IV.A.2. “Eligibility and Activity Rules,” above. 179 Auction 79 Comment Public Notice at ¶ 34. 180 Bidders must have sufficient eligibility to place a bid on the particular construction permit. See Section III.D.3. “Upfront Payments and Bidding Eligibility,” above. 181 See Section IV.B.3. “Bid Amounts,” above. Federal Communications Commission DA 09-810 40 as that bidder’s bid for the round. Bidders should note that the bidding units associated with construction permits for which the bidder has removed bids do not count towards the bidder’s current activity. 6. Bid Removal and Bid Withdrawal 157. In the Auction 79 Comment Public Notice, the Bureaus proposed bid removal procedures.182 Before the close of a bidding round a bidder has the option of removing any bids placed in that round. By using the “remove bids” function in the FCC Auction System, a bidder may effectively “unsubmit” any bid placed within that round. A bidder removing a bid placed in the same round is not subject to withdrawal payments. Removing a bid will affect a bidder’s activity for the round in which it is removed, i.e., a bid that is removed does not count toward bidding activity. Once a round closes, a bidder may no longer remove a bid. We received no comments on this issue of bid removals. These removal procedures will enhance bidder flexibility during the auction. Therefore, the Bureaus adopt their proposed procedures concerning bid removals for Auction 79. 158. Once a round closes, a bidder may no longer remove a bid. In the Auction 79 Comment Public Notice, the Bureaus proposed to prohibit bidders from withdrawing any bids after the round in which bids were placed has closed.183 This proposal was made in recognition of the site-specific nature and wide geographic dispersion of the permits available in this auction. The Bureaus received no comments on the issue of bid withdrawal. Accordingly, we adopt our proposal prohibiting bid withdrawals in Auction 79. Bidders are cautioned to select bid amounts carefully because no bid withdrawals will be allowed in Auction 79, even if a bid was mistakenly or erroneously made. 7. Round Results 159. Reports reflecting bidders’ identities for Auction 79 will be available before and during the auction. Thus, bidders will know in advance of this auction the identities of the bidders against which they are bidding. 160. Bids placed during a round will not be made public until the conclusion of that round. After a round closes, the Bureaus will compile reports of all bids placed, current provisionally winning bids, new minimum acceptable bid amounts for the following round, whether the construction permit is FCC held, and bidder eligibility status (bidding eligibility and activity rule waivers), and post the reports for public access. 8. Auction Announcements 161. The Commission will use auction announcements to announce items such as schedule changes and stage transitions. All auction announcements will be available by clicking a link in the FCC Auction System. V. POST-AUCTION PROCEDURES 162. Shortly after bidding has ended, the Commission will issue a public notice declaring the auction closed, identifying the winning bidders, and establishing the deadlines for submitting down payments, final payments, and the long-form applications (FCC Form 301). A. Down Payments 163. Within ten business days after release of the auction closing notice, each winning bidder must submit sufficient funds (in addition to its upfront payment) to bring its total amount of money on 182 Auction 79 Comment Public Notice at ¶ 36. 183 Id. Federal Communications Commission DA 09-810 41 deposit with the Commission for Auction 79 to 20 percent of the net amount of its winning bids (gross bids less any applicable new entrant bidding credits).184 B. Final Payments 164. Each winning bidder will be required to submit the balance of the net amount of its winning bids within ten business days after the applicable deadline for submitting down payments.185 C. Long-Form Application (FCC Form 301) 165. The Commission’s rules currently provide that within thirty days after release of the auction closing notice, winning bidders must electronically submit a properly completed long-form application (FCC Form 301, Application for FM Construction Permit), and required exhibits for each construction permit they won through Auction 79. Winning bidders claiming new entrant status must include an exhibit demonstrating their eligibility for the bidding credit.186 Further instructions on these and other filing requirements will be provided to winning bidders in the auction closing notice. D. Default and Disqualification 166. Any winning bidder that defaults or is disqualified after the close of the auction (i.e., fails to remit the required down payment within the prescribed period of time, fails to submit a timely long- form application, fails to make full payment, or is otherwise disqualified) will be subject to the payments described in Section 1.2104(g)(2).187 The payments include both a deficiency payment, equal to the difference between the amount of the bidder’s bid and the amount of the winning bid the next time a construction permit covering the same spectrum is won in an auction, plus an additional payment equal to a percentage of the defaulter’s bid or of the subsequent winning bid, whichever is less. 167. The percentage of the applicable bid to be assessed as an additional payment for defaults in a particular auction is established in advance of the auction. Accordingly, in the Auction 79 Comment Public Notice, we proposed to set the additional default payment for this auction at twenty percent of the applicable bid. We received no comments on this proposal, and therefore, adopt the proposal. 168. Finally, in the event of a default, the Commission may re-auction the construction permit or offer it to the next highest bidder (in descending order) at its final bid amount.188 In addition, if a default or disqualification involves gross misconduct, misrepresentation, or bad faith by an applicant, the Commission may declare the applicant and its principals ineligible to bid in future auctions, and may take any other action that it deems necessary, including institution of proceedings to revoke any existing authorizations held by the applicant.189 E. Refund of Remaining Upfront Payment Balance 169. After the auction, applicants that are not winning bidders or are winning bidders whose upfront payment exceeded the total net amount of their winning bids may be entitled to a refund of some or all of their upfront payment. All refunds will be returned to the payor of record, as identified on the FCC Form 159, unless the payor submits written authorization instructing otherwise. Bidders that drop out of the auction completely (have exhausted all of their activity rule waivers and have no 184 47 C.F.R. § 1.2107(b). 185 47 C.F.R. § 1.2109(a). 186 47 C.F.R. §§ 1.2112(b) and 73.5005. 187 47 C.F.R. § 1.2104(g)(2). 188 47 C.F.R. §§ 1.2109(b) and (c). 189 47 C.F.R. § 1.2109(d). Federal Communications Commission DA 09-810 42 remaining bidding eligibility) may request a refund of their upfront payments before the close of the auction. 170. Bidders are encouraged to file their refund information electronically using the Refund Information icon found on the Auction Application Manager page or through the Wire Transfer for Refund Purposes link available in various locations throughout the FCC Auction System. If an applicant has completed the refund instructions electronically, the refund will be sent automatically. If an applicant has not completed the refund instructions electronically, the applicant must send a written request to include the following information: Name, address, contact and phone number of Bank ABA Number Account Number to Credit Name of Account Holder FCC Registration Number (FRN) The refund request can be submitted by fax to the Auctions Accounting Group at (202) 418-2843 or by mail to: Federal Communications Commission Financial Operations Auctions Accounting Group Gail Glasser 445 12th Street, SW, Room 1-C864 Washington, DC 20554 NOTE: Refund processing generally takes up to two weeks to complete. Bidders with questions about refunds should contact Gail Glasser at (202) 418-0578. VI. CONTACT INFORMATION 171. Contact Information Table: General Auction Information General Auction Questions Auction Process and Procedures Seminar Registration FCC Auctions Hotline (888) 225-5322, option two; or (717) 338-2868 Auction 79 Process and Procedures Auctions and Spectrum Access Division (202) 418-0660 Debbie Smith (Analyst) Linda Sanderson (Project Manager) Auction 79 Legal Information Auction Rules, Policies, Regulations Auctions and Spectrum Access Division (202) 418-0660 Howard Davenport (Attorney) Lynne Milne (Attorney) Licensing Information Service Rules, Policies, Regulations Licensing Issues, Engineering Issues Due Diligence, Incumbency Issues Audio Division (202) 418-2700 Lisa Scanlan (Attorney) Tom Nessinger (Attorney) Federal Communications Commission DA 09-810 43 Technical Support Electronic Filing FCC Auction System (Hardware/Software Issues) FCC Auctions Technical Support Hotline (877) 480-3201, option nine; or (202) 414-1250 (202) 414-1255 (TTY) Hours of service: 8:00 a.m. – 6:00 p.m. ET, Monday through Friday Payment Information Wire Transfers Refunds FCC Auctions Accounting Branch Gail Glasser (202) 418-0578 (202) 418-2843 (fax) Auction Bidder Line Will be furnished only to qualified bidders FCC Copy Contractor Additional Copies of Commission Documents Best Copy and Printing, Inc 445 12th Street, SW, Room CY-B402 Washington, DC 20554 (800) 378-3160 http://www.bcpiweb.com Press Information Matt Nodine (202) 418-1646 FCC Forms (800) 418-3676 (outside Washington, DC) (202) 418-3676 (in the Washington area) http://www.fcc.gov/formpage.html Accessible Formats Braille, large print, electronic files, or audio format for people with disabilities Consumer and Governmental Affairs Bureau (202) 418-0530 or (202) 418-0432 (TTY) fcc504@fcc.gov FCC Internet Sites http://www.fcc.gov http://wireless.fcc.gov/auctions http://wireless.fcc.gov/uls http://www.fcc.gov/mb -- FCC -- Federal Communications Commission DA 09-810 A - 1 ATTACHMENT A Auction 79 – Auction of FM Broadcast Construction Permits DA 09-810 This page was intentionally inserted as a placeholder for Attachment A, which is available as a separate file. Federal Communications Commission DA 09-810 B - 1 ATTACHMENT B Short-Form Application Filing Instructions This attachment provides instructions on submitting a short-form application and an upfront payment to participate in Auction 79. It also includes instructions for interested parties wishing to view the short- form applications filed for Auction 79. I. Application Preparation and Submission An applicant must submit its short-form application (FCC Form 175) electronically, via the FCC Auction System. Short-form applications for Auction 79 must be submitted and confirmed prior to 6:00 p.m. ET on Thursday, June 25, 2009. Late applications or unconfirmed submissions of electronic data will not be accepted. Applicants are reminded that all information required in connection with applications to participate in spectrum license auctions is necessary to determine each applicant’s qualifications, and as such will be available for public inspection. Accordingly, an applicant should not include any unnecessary sensitive information, such as Taxpayer Identification Numbers or Social Security Numbers, in its short-form application. Applicants may request that information submitted not be made routinely available for public inspection following the procedures set forth in Section 0.459.190 Such requests must be included as an attachment to FCC Form 175 and identify the information to which the request applies. Because the required information bears on each applicant’s qualifications, confidentiality requests will not be routinely granted.191 Applicants may make multiple changes to their short-form applications until the close of the filing window. However, applicants must press the SUBMIT button in the FCC Auction System for the changes to be submitted and considered by the Commission. A. Minimum Software Requirements The following software, at a minimum, is required to use the FCC Integrated Spectrum Auction System: · Web Browser, either of the following: § Microsoft® Internet Explorer 6.0 or higher (recommended), with either Microsoft VM or Java Plug-In Version 1.5. § Mozilla® Firefox® 2.0 or higher, with Java Plug-In Version 1.5. To obtain Java Plug-In Version 1.5, go to http://java.sun.com/javase/downloads/index_jdk5.jsp and click the Download button for the Java Runtime Environment (JRE) 5.0 option. · PDF Viewer: Adobe Acrobat Reader 5.0 or higher (available at http://www.adobe.com) Currently, the Apple® Mac OS® is not supported. 190 47 C.F.R. § 0.459. 191 47 C.F.R. § 0.459(a). Federal Communications Commission DA 09-810 B - 2 B. Logging On To submit an FCC Form 175 electronically via the Internet, an applicant should start its web browser and point it to either http://auctions.fcc.gov/ (primary location) or http://auctions2.fcc.gov/ (secondary location). Once on the FCC Integrated Spectrum Auction System page, the applicant may log in to create a short-form application using its FCC Registration Number (“FRN”) and password. C. Application Filing Instructions The FCC Form 175 requests information needed to determine whether an applicant qualifies to participate in competitive bidding for Commission licenses or construction permits.192 Pursuant to Section 1.2105(a), FCC Form 175 must be submitted electronically. Applicants must submit required information as entries in the data fields of the FCC Form 175 whenever a data field is available for that information. Attachments should not be used to provide information that can be supplied within the data fields of the FCC Form 175. The screens comprising FCC Form 175 consist of six series, each requesting six separate types of information: 1) Applicant Information; 2) Permit Selection; 3) New Entrant Bidding Credit Eligibility; 4) Agreements; 5) Ownership; and 6) Certify and Submit. In addition, Summary screens, a seventh series, appear prior to the Certify and Submit screens. The Summary screens provide an overview of an applicant’s FCC Form 175 that facilitates reviewing and revising specific information, as well as an automated check for certain inconsistencies and omissions in submitted information. To simplify filling out FCC Form 175, certain initial information applicants provide is used to determine what additional information is needed, and what subsequent screens will appear to collect that information. For example, a corporate applicant, unlike an individual applicant, must identify a corporate officer or director responsible for the application (sometimes called a responsible party). If an applicant identifies itself as an individual, no additional information is needed regarding an additional responsible party, and screens requesting responsible party information will not appear. However, if the applicant identifies itself as a corporation, subsequent screens in the FCC Form 175 will ask for responsible party information. Applicants should be able to fill out FCC Form 175 by following the instructions below. Additional help in filling out FCC Form 175 can be accessed in two ways: 1) by clicking on the Help link in the upper right of any screen, which will open Auction Application Online Filing Help; or 2) by clicking on the text of any Common Question link appearing on the right side of the screen. The common questions displayed relate to the current screen and vary from screen to screen. In the event the assistance provided by these sources is insufficient, filers should use the contact information provided in the Procedures Public Notice to obtain additional assistance. 1. Applicant Information The Applicant Information screens are the first series of screens in FCC Form 175. In the Applicant Information screens, the applicant will provide basic information including: • the applicant’s legal classification (e.g., individual, corporation, rural telephone cooperative, etc.) • optional information regarding the applicant’s status as a minority- or woman-owned business or a rural telephone company 192 See generally, 47 C.F.R. § 1.2105. Federal Communications Commission DA 09-810 B - 3 Whether the applicant requests Noncommercial Educational election. This response (yes or no) is mandatory.193 • the applicant’s name, which will be used as the bidder name during the auction • citizenship for individuals, or jurisdiction of formation for legal entities • for applicants classified as legal entities (e.g., corporations and partnerships), the name of and information regarding the entity’s responsible individual • the name, address, telephone and facsimile number of a contact person who will communicate with the Commission regarding the applicant’s FCC Form 175194 • the names of up to three persons authorized to bid for the applicant in the auction • the applicant’s preference for electronic or telephonic bidding • whether the applicant claims a new entrant bidding credit and the percentage claimed195 Each screen will specify the information that the applicant must provide. Please note the following with respect to particular information requested: · Applicants must indicate their legal classification before continuing to subsequent screens, because the legal classification will determine which subsequent screens will appear. · P.O. Boxes may not be used for an applicant’s address. · To simplify filling out the FCC Form 175, an applicant that has the same address as its contact person can click on the COPY APPLICANT ADDRESS button to automatically fill in the contact person’s address. P.O. Boxes may not be used for a contact person’s address. · Applicants must identify at least one authorized bidder. While applicants may change their authorized bidders at a later date, only those bidders listed on the FCC Form 175 will be authorized to place bids for the applicant during the auction. · Any qualified bidder may bid either via the Internet or by telephone during the auction. Specifying a preference for electronic or telephonic bidding assists the Commission in determining the staff required for telephonic bidding. · Any application for a noncommercial educational station that is mutually exclusive with any application for a commercial station will be returned as unacceptable for filing.196 2. Permit Selection The Permit Selection screens make up the second series of screens in FCC Form 175. In the Permit Selection screens, the applicant will identify the construction permits offered on which the applicant may 193 Any application for a noncommercial educational station that is mutually exclusive with any application for a commercial station will be returned as unacceptable for filing. See NCE Second Report and Order, 18 FCC Rcd at 6699-6700. Applications specifying the same FM station construction permit are considered mutually exclusive. 194 FCC personnel will communicate only with an applicant’s contact person or certifying official, as designated on the applicant’s FCC Form 175, unless the applicant’s certifying official or contact person notifies the Commission in writing that applicant’s counsel or other representative is authorized to speak on its behalf. 195 See 47 C.F.R. §§ 1.2105(a)(2)(ii)(A), (iii), and (iv), 73.5002(b), 73.5007 and 73.5008. 196 See NCE Second Report and Order, 18 FCC Rcd at 6699-6700. Federal Communications Commission DA 09-810 B - 4 wish to bid during the auction. While an applicant is not obligated to bid on all construction permits that it selects, it will not be able to bid on construction permits that it has not selected on its FCC Form 175.197 Be advised that there is no opportunity to change this list after the short-form application filing deadline. To participate in an auction, applicants must select at least one construction permit. Until the applicant selects a construction permit, the applicant cannot submit the FCC Form 175. An applicant’s permit selections cannot be changed after the initial filing window has closed. Therefore, during the initial filing window it is important to carefully review construction permit selections to make sure all the construction permits on which the applicant may wish to bid have been selected. The Permit Selection screens contain a list of all available construction permits in the auction. Applicants can navigate within the Permit Selection screen by selecting the individual page links or the “Previous” and “Next” buttons above and below the list of available permits. In addition, applicants can use pre- defined filters to narrow down the list of permits that they wish to select and save. Specifically, construction permits can be selected by: (1) clicking the check box next to the construction permit name, then selecting the “Save Selected Items” button; (2) clicking the “Save All Items” button to save all available construction permits; or (3) clicking the “Save All Filtered Items” button after applying a filter. Once the applicant has successfully saved a construction permit, the word “Saved” will appear next to the construction permit name to confirm that is has been saved with the application. Construction Permits can be removed by: (1) clicking the check box (to uncheck) next to a previously saved construction permit, then selecting the “Remove Selected Items” button; (2) clicking the “Remove All Items” button to remove all previously saved construction permits; or (3) clicking the “Remove All Filtered Items” button after applying a filter. Removed construction permits will not have the word “Saved” next to the construction permit name. Applicants may view all saved construction permits by either clicking the Edit Icon next to “View Saved Items” at the top-right corner of the list, or by clicking the “CONTINUE” button at the bottom of the page. Once construction permits have been saved, the View/Edit Permit Selections screen will be the first screen displayed when navigating to the Permit Selection step. This screen lists all construction permits the applicant has selected and saved for the auction. To select a new construction permit or remove a previously selected construction permit, an applicant can click the Edit Icon next to “Return to Permit Selection” at the top-right corner of the list, which will return it to the original Select Permits screen, as described above. The reference coordinates are also displayed for each listed FM allotment. Once the applicant has selected and added an FM permit, the reference coordinates are followed by an “Edit” icon. Clicking this icon produces a screen on which the applicant can change the reference coordinate values to preferred site coordinates.198 If the applicant previously has selected construction permits, the initial Permit Selection screen will be the View/Edit Permit Selections screen. This screen lists the construction permits previously selected for this auction. To select a new construction permit or remove a previously selected construction permit, click the Edit icon next to Change Selection at the top-right corner of the list. This will take you to the original Select Permits screen, described above. 197 47 C.F.R. § 1.2105(a)(2)(i). 198 See Broadcast First Report and Order, 13 FCC Rcd at 15974 and n. 153. Federal Communications Commission DA 09-810 B - 5 3. New Entrant Bidding Credit Eligibility The New Entrant Eligibility screens are the third series of screens in FCC Form 175. On the initial screen, applicants indicate whether they are claiming the New Entrant bidding credit and, if so, whether they are claiming a 25 percent or 35 percent New Entrant bidding credit. Applicants should ensure that this bidding credit information is consistent with the bidding credit eligibility information provided on the first Applicant Information screen. Applicants not seeking a New Entrant bidding credit will continue to the next series of screens. Applicants seeking either a 35 percent or a 25 percent New Entrant bidding credit will continue to the New Entrant Eligibility – “Eligible Entity” Election screen. The “Eligible Entity” Election screen asks if the applicant claims to be an “Eligible Entity” as defined in Section 73.5008(c), for purposes of claiming eligibility for the New Entrant bidding credit.199 Applicants seeking either a 35 percent or a 25 percent New Entrant bidding credit must respond to the “Eligible Entity” Election question. Applicants seeking a 35 percent New Entrant bidding credit, and claiming either “yes” or “no” to the “Eligible Entity” question, do not need to provide additional information in the Form 175 regarding their claimed New Entrant Bidding Credit. Such applicants will continue to the next series of screens. Applicants claiming a 25 percent New Entrant bidding credit, and claiming either “yes” or “no” to the “Eligible Entity” question, must provide additional information regarding existing mass media facilities in which the applicant, or any individual or entity with an attributable interest in the applicant, has an attributable interest.200 Applicants must identify: · the existing mass media facility or facilities; · the individual or entity with an attributable interest in the existing mass media facility; · the attributable interest in the facility; and · whether any proposed broadcast facilities are in the ‘same area’ as existing mass media facilities, as defined by applicable Commission rules. See 47 C.F.R. §§ 73.5007, 5008. · In the event that the applicant indicates that any of the broadcast facilities proposed in its application for this auction are in the ‘same area’ as the identified existing mass media facility, the applicant must continue to an additional screen where the applicant must indicate which proposed broadcast facility in the auction is in the ‘same area’ as the identified existing mass media facility. Once the applicant has identified all relevant existing mass media facilities, and all broadcast facilities proposed in its application that are located in the ‘same area’ as each relevant existing mass media 199 47 C.F.R. § 73.5008(c). An “eligible entity” shall include any entity that qualifies as a small business under the Small Business Administration’s size standards for its industry grouping, as set forth in 13 C.F.R. § 121.201, and holds (i) 30 percent or more of the stock or partnership interests and more than 50 percent of the voting power of the corporation or partnership that will own the media outlet; or (ii) 15 percent or more of the stock or partnership interests and more than 50 percent of the voting power of the corporation or partnership that will own the media outlet, provided that no other person or entity owns or controls more than 25 percent of the outstanding stock or partnership interests; or (iii) more than 50 percent of the voting power of the corporation that will own the media outlet if such corporation is a publicly traded company. See also 47 C.F.R. § 73.3555, Note 2(i); Diversity Order, 23 FCC Rcd at 5931-37 ¶¶ 17-34. 200 Full-service noncommercial educational stations, on both reserved and nonreserved channels, are included among “media of mass communications” as defined in Section 73.5008(b). See Minnesota Christian Broadcasters, Inc., Memorandum Opinion And Order, FCC 03-5, 18 FCC Rcd 614 (2003), aff’d sub nom, Carol DeLaHunt v. FCC, 411 F.3d 283 (D.C. Cir. 2005). Federal Communications Commission DA 09-810 B - 6 facility, applicants will continue to the View/Edit All Facilities screen. This screen lists the applicant’s claimed New Entrant bidding credit of 25 percent, the relevant existing mass media facilities, and the proposed broadcast facilities in the ‘same area’ as each relevant existing mass media facility. From this screen, options include: · Clicking the Edit icon or the Modify bidding credit selection link to return to the initial New Entrant bidding credit eligibility screen. · Modifying information about relevant mass media facilities by clicking on them. · Clicking the Delete This Facility link to delete a facility and identified proposed broadcast facilities in the ‘same area.’ · Modifying information regarding a proposed broadcast facility by clicking on its identifier. · Clicking the Remove icon next to information about a particular proposed broadcast facility in the ‘same area’ to remove the corresponding facility. · Clicking the Add a proposed ‘Same Area’ Facility to [an existing mass media facility] link to add a new broadcast facility proposed in the application that is located in the ‘same area.’ · Clicking the CREATE NEW MASS MEDIA FACILITY button to add additional mass media facilities. When all relevant existing mass media facilities, and proposed broadcast facilities in the ‘same area’ as each relevant existing mass media facility, have been identified, click the CONTINUE button. 4. Agreements The Agreements screens are the fourth series of screens in FCC Form 175. In the Agreements screens, applicants will provide information regarding auction-related agreements subject to disclosure under the Commission’s rules.201 On the first screen, applicants must state whether the applicant has any agreements that are subject to disclosure under the Commission’s rules by responding “Yes” or “No” to a question asking whether the applicant has entered into partnerships, joint ventures, consortia, or other agreements or understandings of any kind relating to the construction permits being auctioned, including any such agreement relating to the post-auction market structure. When two applicants in this auction share one officer, or one director, or one individual with specified ownership interests,202 it is at this point in each application that the two applicants can indicate that there is a sharing of these individuals by responding to this “agreement” question with a “Yes.”203 201 47 C.F.R. § 1.2105(a)(2)(viii). 202 Applicants are reminded that, for purposes of the anti-collusion prohibition, 47 C.F.R. § 1.2105(c)(7)(i) defines “applicant” as including all officers and directors of the entity submitting a short-form application to participate in the auction, all controlling interests of that entity, as well as all holders of partnership and other ownership interests and any stock interest amounting to 10 percent or more of the entity, or outstanding stock, or outstanding voting stock of the entity submitting a short-form application. 203 As explained in the anti-collusion discussion above, the failure to report an agreement in both short-form applications when specified individuals are involved with two applicants in the same auction can result in a violation of the anti-collusion rule. Where an individual served as an officer for two or more applicants, the Bureaus have found that the bids and bidding strategies of one applicant are necessarily conveyed to the other applicant, and, absent a disclosed bidding agreement, an apparent violation of the anti-collusion rule occurs. See, e.g., Letter to Colby M. May, TCCSA, Inc., d/b/a Trinity Broadcasting Network, from Barbara A. Kreisman, Chief, Video (continued….) Federal Communications Commission DA 09-810 B - 7 If an applicant answers “No,” the applicant will continue with the Ownership series of screens, described below. If the applicant answers “Yes,” the applicant will continue with additional Agreements screens. In the additional Agreements screens, applicants must provide an identifying name for the agreement and must identify the parties, other than the applicant, to the agreement. The agreement identifier can be a brief description of the agreement or a simple reference name; however, each agreement identifier must be unique. Neither the name of the agreement or its description should indicate construction permit selection. The information required for the other parties to an agreement differs if the party is an individual or entity. Applicants may provide FRNs for the other parties to the agreement, if available. While providing the FRN is optional, it helps prevent identification errors resulting from parties having similar names or a single party using multiple names. Up to three parties to the agreement (not including the applicant) can be identified on a single screen. Additional parties can be added by clicking the ADD MORE PARTIES button. In the event of an error, the name of a party and its associated FRN can be deleted from the form by clicking on the RESET button. After identifying all parties to a particular agreement, click the FINISH THIS AGREEMENT button. The next screen, the View/Edit Agreements screen, lists the agreements and parties to each agreement that already have been entered. From this screen, the following options are available: · Clicking the Edit icon or the Agreements link to return to the initial Agreements screen regarding whether or not the applicant has any agreements. · Modifying agreement identifiers by clicking on them. · Clicking the Delete This Agreement link to delete an agreement and associated parties. · Modifying information regarding a particular party to an agreement by clicking on the party’s name. · Clicking the Remove icon next to information about a particular party to remove the corresponding party. · Clicking the Add Party to This Agreement link to add a new party to an agreement. · Clicking the CREATE NEW AGREEMENT button to add additional agreements. When all agreements and the parties to each agreement have been identified, the applicant should click the CONTINUE button. (Continued from previous page) Division, Media Bureau, and Margaret W. Wiener, Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, DA 05-2445, 20 FCC Rcd 14648 (WTB/MB 2005) (finding apparent violation of anti- collusion rule where applicants with mutually exclusive applications reported sharing same individual as an officer and director and reported having no bidding agreement). Federal Communications Commission DA 09-810 B - 8 5. Ownership The Ownership screens are the fifth series of screens in the FCC Form 175. In the Ownership screens, applicants will provide information regarding parties with ownership interests in the applicant that must be disclosed pursuant to Commission rules.204 Commission rules also require the disclosure and description of FCC-regulated businesses that are owned by the applicant and by parties with certain ownership interests in the applicant.205 a. Information Already on File with the Commission Some applicants may have previously filed FCC Form 602 disclosing ownership information in connection with wireless services. In addition, some applicants may have filed a short-form application (FCC Form 175) for a previous auction disclosing ownership information. To simplify filling out FCC Form 175, an applicant’s most current ownership information on file with the Commission, if in an electronic format compatible with the short-form application (FCC Form 175) (such as information submitted in an on-line FCC Form 602 or in an FCC Form 175 filed for a previous auction using ISAS), will automatically be entered into the applicant’s short-form application. Applicants with ownership information automatically entered into FCC Form 175 will proceed directly to the View/Edit Ownership screen described below. Each applicant is responsible for information submitted in its FCC Form 175 being complete and accurate. Applicants should carefully review any information automatically entered to confirm that it is complete and accurate as of the deadline for submitting their short-form applications in this auction. Applicants can update the information directly in the FCC Form 175. After the deadline for filing this FCC Form 175, ownership information in a submitted FCC Form 175 will be considered to be the applicant’s most current ownership information on file with the Commission for this auction. b. Disclosable Interest Holders and FCC-Regulated Businesses • Sections 1.2105 and 1.2112(a) of the Commission’s rules list the interest holders in the applicant that must be disclosed in FCC Form 175.206 • Section 1.2112(a)(7) lists the FCC-regulated business entities, or applicants for an FCC license, that must be disclosed in FCC Form 175.207 The initial Ownership screen enables the applicant to add information regarding either a disclosable interest holder or the FCC-regulated businesses in which the applicant has an interest. Each screen will specify the information that the applicant must provide. Please note the following with respect to particular information requested: 204 47 C.F.R. §§ 1.2105(a)(2)(ii)(B), 1.2110,1.2112 and 73.5002. 205 47 C.F.R. § 1.2112. 206 47 C.F.R. §§ 1.2105, 1.2112(a). Section 73.5002 specifies the bidding procedures, certification requirements and anti-collusion rules applicable to applications for commercial broadcast services that are subject to auction. Subsection (b) requires the timely submission of Form 175 applications along with all required certifications, information and exhibits pursuant to 47 C.F.R. § 1.2105(a) and any Commission public notices. Section 1.2105 requires the disclosure on the short-form application of applicant ownership information as set forth in Section 1.2112. 207 47 C.F.R. § 1.2112(a)(7). Federal Communications Commission DA 09-810 B - 9 · If an application includes one or more disclosable interest holders with an indirect ownership in the applicant,208 the application must include an attachment regarding the relationship between the indirect interest holder(s) and the applicant. The attachment should provide an overview of the ownership chain that links the indirect owners to the applicant, e.g., indirect owner X owns 50% of holding company Y; indirect owner Z owns 50% of holding company Y; and holding company Y owns 100% of the applicant.209 One attachment connecting all indirect owners to the applicant is sufficient. Applicants should not provide separate attachments for each indirect owner. An overview of the ownership connections is sufficient. The attachment should not duplicate all the detailed information already provided in the data fields of the FCC Form 175. · The “Percent of Interest Held in Applicant” should reflect the disclosable interest holder’s aggregate ownership interest in the applicant (both direct and indirect). In some cases, e.g., circumstances where there is joint ownership or indirect ownership resulting in different owners sharing the same ownership interests, the sum of all the percentages held by disclosable interest holders may exceed 100%. In other cases, a disclosable interest holder may have a 0% ownership interest in the applicant. · FCC-regulated businesses in which the applicant has an interest can be entered from the initial Add Ownership Disclosure Information screen. FCC-regulated businesses in which a disclosable interest holder has an interest can be entered from the Add FCC Regulated Business screen in the series of screens for entering information about a disclosable interest holder. · When adding an FCC-regulated business, “Percent of Interest Held” refers to the percent of interest held by the applicant or disclosable interest holder, as applicable, in the FCC-regulated business. · To simplify filling out the FCC Form 175, applicants can click on the Select Business(es) Already Submitted link when entering an FCC-regulated business previously entered as an FCC-regulated business for the applicant or another disclosable interest holder. When doing so, be certain to enter the “Percent of Interest Held” in the FCC-regulated business by the current party, either the applicant or the disclosable interest holder, with respect to which the FCC- regulated business is being entered. c. View/Edit Ownership Disclosure Information The View/Edit Ownership Disclosure Information screen summarizes ownership information already entered in the FCC Form 175, either automatically from compatible ownership information on file with the Commission or directly by the applicant, and provides links enabling existing information to be revised and additional information to be added. Existing ownership information is divided into two groups: · Disclosable Interest Holders of this Applicant 208 47 C.F.R. § 1.2112(a)(6). 209 Id. Federal Communications Commission DA 09-810 B - 10 · FCC-Regulated Businesses of this Applicant To view the detailed information submitted regarding the applicant, a disclosable interest holder or FCC- regulated business, click on the relevant party’s name. To delete existing information or add a new entry in one of the categories, click on the relevant link. This screen also provides a link enabling applicants to add an FCC-regulated business directly to an existing disclosable interest holder, without needing to reenter the disclosable interest holder’s information. 6. Summary The Summary screens summarize information applicants have provided in previous screens, offering an overview of an applicant’s FCC Form 175 to help locate specific information. The Summary screens will appear prior to the Certify and Submit screens, in order to permit the applicant to review all the information entered in previous screens and to provide an opportunity to check for errors or omissions in the information submitted. The first Summary screen, the Summary Overview screen, lists the first five series of screens in the application and provides a VIEW/EDIT button to access each one. · Clicking VIEW/EDIT for Applicant Information produces a Detail for Applicant Information screen showing the information entered for each data entry field. To change any data item, the applicant should click the Edit icon for the relevant data field. · Clicking VIEW/EDIT for Permit Selection takes the applicant to the View/Edit Permit Selection screen discussed above in the Permit Selection section. · Clicking VIEW/EDIT for New Entrant Eligibility takes you to the View/Edit New Entrant Eligibility screen discussed above in the New Entrant Bidding Credit section. · Clicking VIEW/EDIT for Agreements takes the applicant to the Agreements screen discussed above in the Agreements section. · Clicking VIEW/EDIT for Ownership takes the applicant to the View/Edit Ownership Disclosure Information screen discussed above in the Ownership section. Clicking on the CHECK ERRORS button initiates an automated check of the application. If the automated check encounters certain inconsistencies and omissions in submitted information that must be corrected before submitting the application, the error(s) will be listed in an Error box at the top of the screen. To correct one of these errors, click its corresponding EDIT button. In addition, if the automated check encounters certain apparent inconsistencies or omissions that might render the application incomplete if the application is submitted with current information, the apparent error will be listed in a Warning box. To revise the information related to the apparent error, click its corresponding EDIT button. Each applicant is solely responsible for providing complete and accurate information in its FCC Form 175. The automated check is provided to assist applicants in completing FCC Form 175. However, the automated check cannot be relied upon to determine whether the information provided in the FCC Form 175 is complete or accurate. The automated check may not catch all errors and applicants cannot rely on the automated check to determine the completeness or the accuracy of submitted information. If the automated check does not encounter any errors, a box will appear displaying the message “No Errors found - You may continue to Certify and Submit.” Applicants may then click the CONTINUE TO CERTIFY button. Federal Communications Commission DA 09-810 B - 11 7. Attaching Additional Information If an applicant needs to provide additional information not requested directly in the screens comprising the FCC Form 175, that information can be provided in an attachment. The screen for adding an attachment to FCC Form 175 can be accessed by clicking on the Attachments link in the upper right of any screen. The Add Attachment screen requests information regarding the type of attachment to be added, the name of the file to be attached, and a brief description of the attachment. NOTE: If the attachment is a request for a waiver or exemption of any of the Commission’s rules or procedures, the applicant must identify the “Type” of attachment as a “Waiver” to facilitate prompt processing. Once the requested information is provided, applicants can add the attachment to the application by clicking on the ADD ATTACHMENT button. A list of any attachments already uploaded along with the applicant’s FCC Form 175 will appear at the bottom of the screen. When uploading attachments, applicants may use a variety of file formats, including Word 2000 or earlier, WordPerfect 5.x or later, Adobe PDF, and ASCII text. Applicants must, however, verify that the files contain all exhibit information, and files may be no larger than 10 Mb and must not be password- protected. Graphics files (e.g., .bmp, .tiff, .jpg) and spreadsheets (e.g., Excel, Lotus) are supported but not recommended. 8. Certify and Submit The Certify and Submit screens are the sixth and final series of screens in FCC Form 175. In the Certify and Submit screens, applicants will provide certifications required of all participants in the Commission’s competitive bidding processes.210 The first Certify and Submit screen requires each applicant to indicate whether the applicant, any affiliate, any controlling interest, and any affiliate of a controlling interest have ever been in default on any Commission construction permit or license or have ever been delinquent on any non-tax debt owed to any Federal agency.211 Applicants associated with a relevant entity that previously has been in default or delinquent – but is not currently – may participate in an auction, if otherwise qualified. However, such applicants must submit an upfront payment equal to 50 percent more than otherwise required.212 The second Certify and Submit screen lists the certifications required of all applicants in the Commission’s competitive bidding processes and requests that the applicant’s certifying official be identified and sign the application. Who Can Certify. A short-form application can be certified by: (1) the applicant, if the applicant is an individual; (2) one of the partners, if the applicant is a partnership; (3) an officer, director, or duly- authorized employee, if the applicant is a corporation; (4) an officer, if the applicant is an unincorporated association; (5) the trustee, if the applicant is an amateur radio service club; or (6) a duly elected or 210 See generally, 47 C.F.R. §§ 1.2105(a)(2) (iv)-(vii) and (ix)-(xi). 211 47 C.F.R. § 1.2105(a)(2)(xi). 212 47 C.F.R. § 1.2106(a). Federal Communications Commission DA 09-810 B - 12 appointed official who is authorized to do so under the laws of the applicable jurisdiction, if the applicant is a governmental entity.213 All applicants must certify on their short-form applications under penalty of perjury that they are legally, technically, financially and otherwise qualified to hold a license.214 Applicants are reminded that submission of an FCC Form 175 constitutes a representation by the certifying official that he or she is an authorized representative of the applicant and has read the form’s instructions and certifications, and that the contents of the application, its certifications and any attachments are true and correct. Submission of a false certification to the Commission may result in penalties, including monetary forfeitures, license forfeitures, ineligibility to participate in future auctions, and/or criminal prosecution. As noted above, a change of certifying official is considered a major change of the short-form application and will not be permitted after the short-form application deadline. Once the two Certify and Submit screens have been filled out, the application may be submitted by clicking on the SUBMIT button. After the application has been submitted, a confirmation screen will be displayed that states the submission time and date, along with a unique file number. Applicants should print a copy of the confirmation page for their records. Applicants may then view and print copies of their submitted applications by clicking on the PRINT PREVIEW button. FCC Form 175 applications for Auction 79 must be submitted and confirmed prior to 6:00 p.m. ET on Thursday, June 25, 2009. Late applications or unconfirmed submissions of electronic data will not be accepted. D. Withdrawing a Short-Form Application Before the Filing Deadline and Updating Existing Short-Form Applications 1. Withdrawing an Application To withdraw a submitted application before the short-form application filing deadline, applicants should click on the Withdraw Application icon on the Auction Application Manager Create or Review Auction Applications page. All previously-submitted data will be deleted. Applications may not be withdrawn after the short-form application filing deadline. 2. Updating Existing Applications The Create or Review Auction Applications page displays any application created or submitted within a filing window. This page shows the application status, the date and time the application was last updated, and the date and time the application was last submitted. This page may be used as a reference to confirm the date and time of the most recent submission of the application. To review or continue working on an existing application, an applicant should click the application auction number, which will produce the application’s Summary page in a view/edit mode. Applicants must go to the Certify and Submit screens and click the SUBMIT button to submit any changes made to their FCC Form 175 applications. After the revised application has been submitted, a confirmation page 213 See 47 C.F.R. § 1.917; see also 47 C.F.R. § 73.3513. 214 47 C.F.R. § 1.2105(a)(2)(v). Federal Communications Commission DA 09-810 B - 13 will display the application’s file number and submission time and date. Applicants should print a copy of the confirmation page for their records. Applicants may then view and print copies of their submitted applications by clicking on the PRINT PREVIEW button. After the filing deadline, an applicant may make only minor changes to its short-form application. An applicant will not be permitted to make major modifications to its application (e.g., changes to its construction permit selections or certifying official, changes in ownership of the applicant that would constitute an assignment or transfer of control, change its identification of the application’s proposed facilities as noncommercial educational, or claim eligibility for a higher percentage of bidding credit).215 II. Upfront Payment Submission A. Upfront Payment Calculator and Form 159 Applicants may access the Upfront Payment Calculator and Form 159 from the Create or Review Auction Applications page and from the Auction Application Submit Confirmation page. Clicking the Upfront Payment Calculator and Form 159 icon or link will provide an applicant with a calculator to determine the appropriate upfront payment amount to submit with the FCC Form 159. From the Calculate Upfront Payment page, the applicant may click the Form 159 button to obtain the FCC Form 159. For further instructions on how to submit the FCC Form 159, see Attachment C to this Public Notice. B. Refund of Upfront Payment On My Auctions page, applicants can click on the See Wire Transfer for Refund Purposes link to provide wire transfer instructions for purposes of refunds of upfront payments. The Commission will use this information to refund excess funds on deposit. III. Miscellaneous A. Access to View Short-Form Applications After the deadline for filing short-form applications, the Commission will process all timely-submitted applications to determine which are complete, and subsequently will issue a public notice identifying: (1) those applications that are complete; (2) those applications rejected; and (3) those applications that are incomplete because of minor defects that may be corrected. Once that public notice is released, any interested parties may be able to view the short-form applications by searching for them in the FCC database. To start a search, go to either http://auctions.fcc.gov/ (primary location) or http://auctions2.fcc.gov (secondary location) and click the Auction Applications link in the Public Access area on the FCC Integrated Spectrum Auction System page. B. Technical Support For technical assistance with using FCC software, contact the FCC Technical Support Hotline at (877) 480-3201, option nine; (202) 414-1250; or (202) 414-1255 (TTY). The FCC Technical Support Hotline is available Monday through Friday from 8 a.m. to 6 p.m. ET. All calls to the FCC Technical Support Hotline are recorded. 215 47 C.F.R. § 1.2105(b). Federal Communications Commission DA 09-810 B - 14 Paperwork Reduction Act Approval: The FCC Form 175 was assigned control number 3060-0600 and was approved by the Office of Management and Budget on November 1, 2006. Federal Communications Commission DA 09-810 C - 1 ATTACHMENT C Auction-Specific Instructions for FCC Remittance Advice (FCC Form 159-February 2003 Edition) Upfront Payments The following information supplements the standard instructions for FCC Form 159 (Revised 2/03), and is provided to help ensure correct completion of FCC Form 159 for upfront payments for Auction 79. Applicants need to complete FCC Form 159 carefully, because: · Mistakes may affect bidding eligibility; and · Lack of consistency between information provided in FCC Form 159 (Revised 2/03), FCC Form 175, long-form application, and correspondence about an application may cause processing delays. Therefore appropriate cross-references between the FCC Form 159 Remittance Advice and the short-form application (FCC Form 175) are described below: Block Number Required Information 1 LOCKBOX # - Enter “979085” 2 Payer Name - Enter the name of the person or company making the payment. If the applicant itself is the payer, this entry would be the same as FCC Form 175. 3 Total Amount Paid - Enter the amount of the upfront payment associated with the FCC Form 159 (Revised 2/03). 4-8 Street Address, City, State, ZIP Code - Enter the street mailing address (not Post Office box number) where mail should be sent to the payer. If the applicant is the payer, these entries would be the same as FCC Form 175 from the Applicant Information section. 9 Daytime Telephone Number - Enter the telephone number of a person knowledgeable about this upfront payment. 10 Country Code - For addresses outside the United States, enter the appropriate postal country code (available from the Mailing Requirements Department of the U.S. Postal Service). 11 Payer FRN - Enter the payer’s ten-digit FCC Registration Number (“FRN”) registered in the Commission Registration System (“CORES”). 21 Applicant FRN (Complete only if applicant is different than payer.) – Enter the applicant’s ten-digit FRN registered in CORES. 24A Payment Type Code - Enter “A79U” 25A Quantity - Enter the number “1” Federal Communications Commission DA 09-810 C - 2 26A Fee Due - Amount of Upfront Payment 27A Total Fee - Will be the same amount as 26A. 28A FCC Code 1 - Enter the number “79” (indicating Auction 79). NOTES: · Do not use Remittance Advice (Continuation Sheet), FCC Form 159-C, for upfront payments. · If applicant is different from the payer, complete blocks 13 through 21 for the applicant, using the same information shown on FCC Form 175. Otherwise leave them blank. · Since credit card payments will not be accepted for upfront payments for an auction, leave Section E blank. Winning Bidder Requirements, Down Payments and Final Payments Specific information regarding down payments and final payments will be included in a post-auction public notice announcing the winning bidders. Federal Communications Commission DA 09-810 D - 1 ATTACHMENT D Summary Listing of Judicial, Commission and Bureau Documents Addressing Application of the Anti-Collusion Rule A. Judicial Decisions: USA v. Northeast Communications of Wisconsin, Inc., No. 07-C-715, slip op. (E.D.Wis. June 15, 2008). Star Wireless, LLC v. FCC, 522 F.3d 469 (D.C. Cir. 2008). High Plains Wireless, L.P. v. FCC, 276 F.3d 599 (D.C. Cir. 2002). B. Commission Decisions: Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150, Second Report and Order, FCC 07-123, 22 FCC Rcd 15289, 15395 ¶¶ 285-86, 15489 (2007). Star Wireless, LLC and Northeast Communications of Wisconsin, Inc., Order on Review, FCC 07-80, 22 FCC Rcd 8943 (2007). Amendment of Part 1 of the Commission’s Rules – Competitive Bidding Procedures, WT Docket No. 97- 82, Seventh Report and Order, FCC 01-270, 16 FCC Rcd 17546 (2001). Notice of Apparent Liability for Forfeiture of Western PCS BTA 1 Corp., Memorandum Opinion and Order, FCC 99-385, 14 FCC Rcd 21571 (1999); Application of Western PCS BTA I Corp., Notice of Apparent Liability for Forfeiture, FCC 98-42, 13 FCC Rcd 8305 (1998). Notice of Apparent Liability for Forfeiture of US West Communications, Inc., Order, FCC 99-90, 14 FCC Rcd 8816 (1999); Application of US West Communications, Inc., Notice of Apparent Liability for Forfeiture, FCC 98-41, 13 FCC Rcd 8286 (1998). Application of Mercury PCS II, LLC, Memorandum Opinion and Order, FCC 98-203, 13 FCC Rcd 23755 (1998); Applications of: Mercury PCS II, LLC, Notice of Apparent Liability for Forfeiture, FCC 97-388, 12 FCC Rcd 17970 (1997). Amendment of Part 1 of the Commission’s Rules – Competitive Bidding Procedures, WT Docket No. 97-82, Third Report and Order and Second Further Notice of Proposed Rule Making, FCC 97-413, 13 FCC Rcd 374, 463-469 ¶¶ 155-166 (1997). Commercial Realty St. Pete, Inc., Memorandum Opinion and Order, FCC 96-400, 11 FCC Rcd 15374 (1996); Commercial Realty St. Pete, Inc., Notice of Apparent Liability for Forfeiture, FCC 95-58, 10 FCC Rcd 4277 (1995). Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253, Memorandum Opinion and Order, FCC 94-295, 9 FCC Rcd 7684, 7687-7689 ¶¶ 8-12 (1994). Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253, Fourth Memorandum Opinion and Order, FCC 94-264, 9 FCC Rcd 6858, 6866-6869 ¶¶ 47-60 (1994). Federal Communications Commission DA 09-810 D - 2 Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253, Second Memorandum Opinion and Order, FCC 94-215, 9 FCC Rcd 7245, 7253-7254 ¶¶ 48-53 (1994). Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253, Fifth Report and Order, FCC 94-178, 9 FCC Rcd 5532, 5570-5571 ¶¶ 91-92 (1994). Implementation of Section 309(j) of the Communications Act – Competitive Bidding, PP Docket No. 93-253, Second Report and Order, FCC 94-61, 9 FCC Rcd 2348, 2386-2388 ¶¶ 221-226 (1994). C. Wireless Telecommunications Bureau Decisions: Lotus Communications Corp., Order, DA 08-1364, 23 FCC Rcd 9107 (Wireless Telecom. Bur. 2008). Application of Nevada Wireless, Memorandum Opinion and Order, DA 98-1137, 13 FCC Rcd 11973 (Wireless Telecom. Bur. 1998). Applications of High Plains Wireless, L.P., Memorandum Opinion and Order, DA 97-2451, 12 FCC Rcd 19627 (Wireless Telecom. Bur. 1997). Applications of Mercury PCS II, LLC, Memorandum Opinion and Order on Reconsideration, DA 97- 2324, 12 FCC Rcd 18093 (Wireless Telecom. Bur. 1997); Applications of Mercury PCS II, LLC, Memorandum Opinion and Order, DA 97-1782, 13 FCC Rcd 5756 (Wireless Telecom. Bur. 1997). Applications of GWI PCS, Inc., Memorandum Opinion and Order, DA 97-674, 12 FCC Rcd 6441 (Wireless Telecom. Bur. 1997). Amendment of Parts 21 and 74 of the Commission’s Rules With Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service, MM Docket No. 94- 131, Order, DA 95-2292, 11 FCC Rcd 9655 (Wireless Telecom. Bur. 1995). 1. Public Notices: Wireless Telecommunications Bureau Reminder of Anti-Collusion Rule Obligations, Public Notice, DA 04-3677, 19 FCC Rcd 22880 (Wireless Telecom. Bur. 2004). Wireless Telecommunications Bureau Staff Provides Guidance on Completing the Short-Form Application (FCC Form 175) for Auction No. 40, Auction of Licenses for Lower and Upper Paging Bands, Public Notice, DA 01-2122, 16 FCC Rcd 16391 (Wireless Telecom. Bur. 2001). Wireless Telecommunications Bureau Responds to Questions About the Local Multipoint Distribution Service Auction, Public Notice, DA 98-37, 13 FCC Rcd 341 (Wireless Telecom. Bur. 1998). Wireless Telecommunications Bureau Provides Guidance on the Anti-Collusion Rule for D, E and F Block Bidders, Public Notice, DA 96-1460, 11 FCC Rcd 10134 (Wireless Telecom. Bur. 1996). FCC Staff Clarifies Application of Anti-Collusion Rule to Broadband PCS "C" Block Reauction, Public Notice, DA 96-929, 11 FCC Rcd 7031 (Auc. Div. 1996). Wireless Telecommunications Bureau Clarifies Spectrum Auction Anti-Collusion Rules, Public Notice, DA 95-2244, 11 FCC Rcd 9645 (Wireless Telecom. Bur. 1995). Federal Communications Commission DA 09-810 D - 3 2. Letters from the Office of General Counsel, the Wireless Telecommunications Bureau and the Media Bureau: Letter to John Cooper, Aurora Communications, Inc., from Margaret W. Wiener, DA 06-157, 21 FCC Rcd 523 (Auc. Div. 2006). Letter to Howard A. Kalmenson, Lotus Communications Corp., from Margaret W. Wiener, DA 06-156, 21 FCC Rcd 520 (Auc. Div. 2006). Letter to Colby M. May from Barbara A. Kreisman and Margaret W. Wiener, DA 05-2445, 20 FCC Rcd 14648 (Video and Auc. Divs. 2005). Letter to Robert Pettit from Margaret W. Wiener, DA 00-2905, 16 FCC Rcd 10080 (Auc. Div. 2000). Letter to John Reardon, Mobex Communications, Inc., from Amy J. Zoslov, DA 98-1861, 13 FCC Rcd 17877 (Auc. Div. 1998). Letter to Elliott J. Greenwald from Christopher J. Wright, DA 98-644, 13 FCC Rcd 7132 (Gen. Counsel 1998). Letter to David L. Nace from Kathleen O’Brien Ham, DA 96-1566, 11 FCC Rcd 11363 (Auc. Div. 1996). Letter to Mark Grady from Kathleen O’Brien Ham, DA 96-587, 11 FCC Rcd 10895 (Auc. Div. 1996). Letter to Jonathan D. Blake from Kathleen O’Brien Ham, DA 95-2404, 10 FCC Rcd 13783 (Auc. Div. 1995). Letter to Leonard J. Kennedy from Rosalind K. Allen, Acting Chief, Commercial Radio Division, Wireless Telecommunications Bureau (released December 14, 1994). Letter to R. Michael Senkowski from Rosalind K. Allen, Acting Chief, Commercial Radio Division, Wireless Telecommunications Bureau (released December 1, 1994). Letter to Gary M. Epstein and James H. Barker from William E. Kennard, General Counsel, Federal Communications Commission (released October 25, 1994). Letter to Alan F. Ciamporcero from William E Kennard, General Counsel, Federal Communications Commission (released October 25, 1994). D. Enforcement Bureau Decisions: Cascade Access, L.L.C., Notice of Apparent Liability for Forfeiture, DA 09-207, 24 FCC Rcd 1350 (Enf. Bur. 2009). Application of Star Wireless, LLC, Forfeiture Order, DA 04-3026, 19 FCC Rcd 18626 (Enf. Bur. 2004); Application of Star Wireless, LLC, Notice of Apparent Liability for Forfeiture, DA 03-2722, 18 FCC Rcd 17648 (Enf. Bur. 2003). Application of Northeast Communications of Wisconsin, Inc., Forfeiture Order, DA 04-3027, 19 FCC Rcd 18635 (Enf. Bur. 2004); Application of Northeast Communications of Wisconsin, Inc., Notice of Apparent Liability for Forfeiture, DA 03-2723, 18 FCC Rcd 17672 (Enf. Bur. 2003). Federal Communications Commission DA 09-810 D - 4 E. Civil Actions Initiated by U.S. Department of Justice: U.S. v. Omnipoint Corp., Proposed Final Judgments and Competitive Impact Statements, Department of Justice, 63 Fed. Reg. 65,228 (Nov. 25, 1998). “Justice Department Sues Three Firms Over FCC Auction Practices,” Press Release, U.S. Department of Justice (Nov. 10, 1998). Complaint, U.S. v. Omnipoint Corp., No. 1:98CV02750 (D.D.C. Nov. 10, 1998). Complaint, U.S. v. Mercury PCS II, L.L.C., No. 1:98CV02751 (D.D.C. Nov. 10, 1998). Complaint, U.S. v. 21st Century Bidding Corp., No. 1:98CV02752 (D.D.C. Nov. 10, 1998). How to Obtain Copies of the Anti-Collusion Decisions: Many of the documents listed in this attachment can be retrieved from the following Commission web site: http://wireless.fcc.gov/auctions/anticollusion. The documents may be located by using our search engine (select the link “search”). Documents retrieved from the web site are available in various formats including Word, WordPerfect, Acrobat Reader, Excel, and ASCII Text. To review a document in its entirety, including footnotes, it is necessary to access the document in WordPerfect, MS Word, or Acrobat Reader. Additionally, all of the documents can be ordered in hard copy for a fee from the Commission’s duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW, Room CY-B402, Washington, DC 20554, (800) 378-3160 (telephone) or http://www.bcpiweb.com. Federal Communications Commission DA 09-810 E - 1 ATTACHMENT E Auction 79 Seminar Registration Form The FCC will sponsor a one-day seminar for Auction 79 applicants. The seminar is free of charge and will provide information about pre-auction procedures, service and auction rules, conduct of the auction, and the FCC Auction System. The seminar will be held: Tuesday, June 16, 2009 Federal Communications Commission 445 12th Street, SW Washington, DC 20554 Registration 10:00 a.m. - 10:30 a.m. Seminar 10:30 a.m. - 2:00 p.m. If hotel accommodations are needed, please contact the Auctions staff at (717) 338-2868 for a list of hotels in the area. ********************************** To register, please provide the information listed below no later than Friday, June 12, 2009, by either E-mail: Auchelp@fcc.gov Facsimile: 717-338-2850 Phone: 717-338-2868 Note: The seminar will also be available via webcast and may be viewed by clicking on the Auction Seminar link on the Auction 79 web page, http://wireless.fcc.gov/auctions/79/. For further information about accessing FCC webcasts, please visit http://www.fcc.gov/realaudio/. _______________________________________________________ I/We will attend the Auction 79 Seminar, scheduled for Tuesday, June 16, 2009. Name of attendee: ____________________________________________________________________ Name of attendee: ____________________________________________________________________ Company name: _____________________________________________________________________ Company address: ____________________________________________________________________ Phone: ________________________________ Fax: _____________________________________