PUBLIC NOTICE Federal Communications Commission 445 12th St., S.W. Washington, D.C. 20554 News Media Information 202 / 418-0500 Internet: http://www.fcc.gov TTY: 1-888-835-5322 DA 10-1711 September 21, 2010 AUCTION OF FM BROADCAST CONSTRUCTION PERMITS SCHEDULED FOR MARCH 29, 2011 COMMENT SOUGHT ON COMPETITIVE BIDDING PROCEDURES FOR AUCTION 91 AU Docket No. 10-183 Comments Due: October 13, 2010 Reply Comments Due: October 27, 2010 TABLE OF CONTENTS Heading Paragraph # I. INTRODUCTION.................................................................................................................................. 1 II. CONSTRUCTION PERMITS IN AUCTION 91 .................................................................................. 2 III. DUE DILIGENCE.................................................................................................................................. 3 IV. BUREAUS SEEK COMMENT ON AUCTION PROCEDURES......................................................... 7 A. Auction Structure ............................................................................................................................. 8 1. Simultaneous Multiple-Round Auction Design ........................................................................ 8 2. Bidding Rounds......................................................................................................................... 9 3. Stopping Rule .......................................................................................................................... 12 4. Information Relating to Auction Delay, Suspension, or Cancellation .................................... 15 B. Auction Procedures........................................................................................................................ 16 1. Upfront Payments and Bidding Eligibility .............................................................................. 16 2. Activity Rule ........................................................................................................................... 18 3. Activity Rule Waivers and Reducing Eligibility..................................................................... 22 4. Reserve Price or Minimum Opening Bids............................................................................... 27 5. Bid Amounts............................................................................................................................ 32 6. Provisionally Winning Bids .................................................................................................... 37 7. Bid Removal and Bid Withdrawal........................................................................................... 39 C. Post-Auction Payments.................................................................................................................. 43 1. Interim Withdrawal Payment Percentage................................................................................ 43 2. Additional Default Payment Percentage.................................................................................. 45 V. DEADLINES AND FILING PROCEDURES ..................................................................................... 48 VI. CONTACTS......................................................................................................................................... 55 ATTACHMENT A: Construction Permits to Be Auctioned 2 I. INTRODUCTION 1. By this Public Notice, the Wireless Telecommunications and the Media Bureaus (the “Bureaus”) announce an auction of certain FM broadcast construction permits and seek comment on the procedures to be used for this auction. This auction, which is designated Auction 91, is scheduled to commence on March 29, 2011. II. CONSTRUCTION PERMITS IN AUCTION 91 2. As discussed in greater detail herein, Auction 91 will offer 147 construction permits in the FM broadcast service. The construction permits to be auctioned are for 147 new FM allotments, including 37 construction permits that were offered but not sold in Auction 79. Specifically, the vacant FM allotments for which construction permits are being offered are listed in Attachment A, along with the reference coordinates for each vacant FM allotment.1 These comprise FM channels added to the Table of FM Allotments, 47 C.F.R. § 73.202(b), pursuant to the Commission’s established rulemaking procedures, and designated for use in the indicated communities. Under the policies established in the Broadcast First Report and Order, applicants may apply for any vacant FM allotment listed in Attachment A.2 If two or more short-form applications (FCC Form 175) specify the same FM allotment, they will be considered mutually exclusive, and the construction permit for that FM allotment will be awarded by competitive bidding procedures.3 III. DUE DILIGENCE 3. Each potential bidder is solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the value of the construction permits for broadcast facilities that the potential bidder is seeking in this auction. Each bidder is responsible for assuring that, if the bidder wins a construction permit, the winning bidder will be able to build and operate facilities in accordance with the Commission’s rules. The FCC makes no representations or warranties about the use of this spectrum for particular services. Each applicant should be aware that an FCC auction represents an opportunity to become an FCC construction 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. 1 With regard to the FM service, in the Broadcast First Report and Order, the Commission gave each applicant the opportunity to submit a set of preferred site coordinates as an alternative to the reference coordinates for the vacant FM allotment upon which the applicant intends to bid. Detailed instructions for specifying preferred site coordinates will be given in a future Public Notice announcing the procedures for Auction 91, which will provide guidelines for completing FCC Form 175 and exhibits. 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, 15974-75 ¶ 142 & n.153 (1998)(“Broadcast First Report and Order”). 2 See Broadcast First Report and Order, 13 FCC Rcd at 15923-24 ¶¶ 7-9, 15961 ¶ 112, 15974-15975 ¶¶ 141-42, on recon., Memorandum Opinion and Order, FCC 99-74, 14 FCC Rcd 8724 (1999) (“Broadcast First Reconsideration Order”), on further recon., 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). 3 When two or more short-form applications (FCC Forms 175) are accepted for filing for a construction permit for the same allotment in Auction 91, mutual exclusivity exists for auction purposes. See Broadcast First Report and Order, 13 FCC Rcd at 15974 ¶ 142, 15978-80 ¶¶ 149-53. Once mutual exclusivity exists for auction purposes, then, even if only one applicant for a particular construction permit in Auction 91 submits an upfront payment, that applicant is required to submit a bid in order to obtain the construction permit. 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 91 and will remain subject to the rules prohibiting certain communications but, having purchased no bidding eligibility, will not be eligible to bid. 3 4. An applicant should perform its due diligence research and analysis before proceeding, as the applicant would with any new business venture. In particular, each potential bidder is 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 the applicant plans to bid.4 Reports and Orders adopted in FM allotment rulemaking proceedings may include anomalies such as site restrictions or expense reimbursement requirements.5 Additionally, each potential bidder should perform technical analyses and/or refresh any previous analyses to assure the applicant that, should the applicant be a winning bidder for any Auction 91 construction permit, the applicant will be able to build and operate facilities that will fully comply with all current technical and legal requirements. Each applicant is strongly encouraged to inspect any prospective transmitter sites located in, or near, the service area for which the applicant plans to bid; confirm the availability of such sites; and also to familiarize itself with the Commission’s rules regarding the National Environmental Policy Act.6 5. Each applicant is strongly encouraged to conduct its own research prior to Auction 91 in order to determine the existence of pending administrative or judicial proceedings, including pending allocations rulemaking proceedings, that might affect the applicant’s decisions regarding participation in the auction. 6. Participants in Auction 91 are strongly encouraged to continue such research throughout the auction. The due diligence considerations mentioned in this Public Notice do not comprise an exhaustive list of steps that should be undertaken prior to participating in this auction. As always, the burden is on the potential bidder to determine how much research to undertake, depending upon the specific facts and circumstances related to its interests. IV. BUREAUS SEEK COMMENT ON AUCTION PROCEDURES 7. Section 309(j)(3)(E)(i) of the Communications Act of 1934, as amended, requires the Commission to “ensure that, in the scheduling of any competitive bidding under this subsection, an adequate period is allowed . . . before issuance of bidding rules, to permit notice and comment on proposed auction procedures . . . .”7 Consistent with the provisions of Section 309(j)(3), and to ensure that potential bidders have adequate time to familiarize themselves with the specific rules that will govern the day-to-day conduct of an auction, the Commission directed the Bureaus, under delegated authority, to seek comment on a variety of auction-specific procedures prior to the start of each auction.8 The Bureaus therefore seek comment on the following issues relating to the conduct of Auction 91. 4 See 47 C.F.R. § 73.202. 5 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, FCC 67-578, 8 FCC 2d 159 (1967). 6 47 C.F.R. Chapter 1, Part 1, Subpart I. 7 47 U.S.C. § 309(j)(3)(E)(i). 8 See 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, 13 FCC Rcd 374, 447-49 ¶¶ 124-25, FCC 97-413 (1997) (“Part 1 Third Report and Order”) (directing WTB to seek comment on specific mechanisms related to day-to-day auction conduct including, for example, the structure of bidding rounds and stages, establishment of minimum opening bids or reserve prices, minimum acceptable bids, initial maximum eligibility for each bidder, activity requirements for each stage of the auction, activity rule waivers, criteria for determining reductions in eligibility, information regarding bid withdrawal and bid removal, stopping rules, and information relating to auction delay, suspension or cancellation); see also Broadcast First Report and Order, 13 FCC Rcd at 15967-15968 ¶¶ 127-28 (consistent with the Part 1 rules, the Commission also delegated authority to the Media Bureau to seek comment and establish an appropriate auction design methodology prior to the start of each broadcast auction). See generally 47 C.F.R. § 0.131; Amendment of Part 1 of the Commission’s Rules – Competitive Bidding Proceeding, WT Docket No. 97-82, 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”). 4 A. Auction Structure 1. Simultaneous Multiple-Round Auction Design 8. The Bureaus propose to auction all construction permits included in Auction 91 using the Commission’s standard simultaneous multiple-round auction format.9 As described further below, 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. Typically, bidding remains open on all construction permits until bidding stops on every construction permit. The Bureaus seek comment on this proposal. 2. Bidding Rounds 9. Auction 91 will consist of sequential bidding rounds, each followed by the release of round results. The initial bidding schedule will be announced in a public notice to be released at least one week before the start of the auction. Details on viewing round results, including the location and format of downloadable round results files, will be included in the same public notice. 10. The Commission will conduct Auction 91 over the Internet, and telephonic bidding will be available as well. The toll-free telephone number for the Auction Bidder Line will be provided to qualified bidders. 11. The Bureaus propose to retain 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. Under this proposal, the Bureaus may change 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. The Bureaus seek comment on this proposal. Commenters may wish to address the role of the bidding schedule in managing the pace of the auction, specifically discussing the tradeoffs in managing auction pace by bidding schedule changes, by changing the activity requirements or bid amount parameters, or by using other means. 3. Stopping Rule 12. The Bureaus have discretion to establish stopping rules before or during multiple round auctions in order to terminate the auction within a reasonable time.10 For Auction 91, the Bureaus propose to employ a simultaneous stopping rule approach. 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, applies a proactive waiver, or withdraws any provisionally winning bids (if bid withdrawals are permitted in this auction).11 Thus, unless the Bureaus announce alternative procedures, bidding will remain open on all construction permits until bidding stops on every construction permit. Consequently, it is not possible to determine in advance how long the auction will last. 13. Further, the Bureaus propose to retain the discretion to exercise any of the following options during Auction 91: a) Use a modified version of the simultaneous stopping rule that would close the auction for all construction permits after the first round in which no bidder applies a waiver, withdraws a provisionally winning bid (if withdrawals are permitted in this auction), or places any new bids 9 See 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, 2360-75 ¶¶ 68-159 (1994) (“Second Report and Order”) for a general discussion of competitive bidding design. 10 47 C.F.R. § 1.2104(e). 11 Proactive waivers are described in Section IV.B.3. “Activity Rule Waivers and Reducing Eligibility,” provisionally winning bids are defined in Section IV.B.6. “Provisionally Winning Bids,” and bid withdrawals are described in Section IV.B.7. “Bid Removal and Bid Withdrawal,” below. 5 on any construction permit for 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. b) Use a modified version of the simultaneous stopping rule that would close the auction for all construction permits after the first round in which no bidder applies a waiver, withdraws a provisionally winning bid (if withdrawals are permitted in this auction), or places any new bids on any construction permit that is not FCC held. Thus, absent any other bidding activity, a bidder placing a new bid on a construction permit that does not already have a provisionally winning bid (an “FCC-held” construction permit) would not keep the auction open under this modified stopping rule. c) Use a modified version of the simultaneous stopping rule that combines (a) and (b) above. d) Declare that the auction will end after a specified number of additional rounds (“special stopping rule”). If the Bureaus invoke this special stopping rule, they will accept bids in the specified final round(s), after which the auction will close. e) Keep the auction open even if no bidder places any new bids, applies a waiver, or withdraws any provisionally winning bids (if withdrawals are permitted in this auction). In this event, the effect will be the same as if a bidder had applied a waiver. The activity rule will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use a waiver. 14. The Bureaus propose to exercise these options only in certain circumstances, for example, where the auction is proceeding unusually slowly or quickly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time or will close prematurely. Before exercising these options, the Bureaus 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. The Bureaus propose to retain the discretion to exercise any of these options with or without prior announcement during the auction. The Bureaus seek comment on these proposals. 4. Information Relating to Auction Delay, Suspension, or Cancellation 15. For Auction 91, the Bureaus propose that, 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.12 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. The Bureaus 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. The Bureaus seek comment on this proposal. B. Auction Procedures 1. Upfront Payments and Bidding Eligibility 16. The Bureaus have delegated authority and discretion to determine an appropriate upfront payment for each construction permit being auctioned, taking into account such factors as the efficiency of the auction process and the potential value of similar construction permits.13 As described further 12 47 C.F.R. § 1.2104(i). 13 See Part 1 Order, 12 FCC Rcd at 5697-98 ¶ 16. See also Part 1 Third Report and Order, 13 FCC Rcd at 425 ¶ 86; Second Report and Order, 9 FCC Rcd at 2377-79 ¶¶ 169-75. 6 below, the upfront payment is a refundable deposit made by each bidder to establish eligibility to bid on construction permits. Upfront payments that are related to the specific construction permits being auctioned protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of the auction.14 With these considerations in mind, the Bureaus propose the upfront payments set forth in Attachment A to this Public Notice. The Bureaus seek comment on this proposal. 17. The Bureaus further propose that the amount of the upfront payment submitted by a bidder will determine the bidder’s initial bidding eligibility in bidding units. The Bureaus propose that each construction permit be assigned a specific number of bidding units, equal to one bidding unit per dollar of the upfront payment listed in Attachment A. The number of bidding units for a given construction permit is fixed and does not change during the auction as prices change. A bidder may place bids on multiple construction permits, provided that the total number of bidding units associated with those construction permits does not exceed the bidder’s current eligibility. Eligibility cannot be increased during the auction; it can only remain the same or decrease. Thus, in calculating its upfront payment amount and hence its initial bidding eligibility, an applicant must determine the maximum number of bidding units on which it may wish to bid (or hold provisionally winning bids) in any single round, and submit an upfront payment amount covering that total number of bidding units. The Bureaus request comment on these proposals. Example: Upfront Payments, Bidding Eligibility, and Bidding Flexibility Construction Permit Market Name Bidding Units Upfront Payment MM-FM824-C3 Pahrump, NV 10,000 $10,000 MM-FM837-A Blanket, TX 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) of bidding eligibility. 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 Pahrump, NV construction permit but not for the Blanket, TX construction permit. 2. Activity Rule 18. In order to ensure that the 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. A bidder’s activity in a round will be the sum of the bidding units associated with any construction permits upon which it places bids during the current round and the bidding units associated with any construction permits for which it holds provisionally winning bids. Bidders are required to be active on a specific percentage of their current bidding eligibility during each round of the auction. 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.15 14 See Second Report and Order, 9 FCC Rcd at 2377-79 ¶¶ 169-76. 15 See Section IV.B.3. “Activity Rule Waivers and Reducing Eligibility,” above. 7 19. The Bureaus propose to divide the auction into at least two stages, each characterized by a different activity requirement.16 The auction will start in Stage One. The Bureaus propose to advance the auction to the next stage by announcement during the auction. In exercising this discretion, the Bureaus will consider a variety of measures of auction activity, including but not limited to the percentage of construction permits (as measured in bidding units) on which there are new bids,17 the number of new bids, and the increase in revenue. The Bureaus seek comment on this proposal. 20. The Bureaus propose the following activity requirements, while noting again that the Bureaus retain the discretion to change stages unilaterally by announcement during the auction: Stage One: In each round of the first stage of the auction, a bidder desiring to maintain its current bidding eligibility is required to be active on construction permits representing at least 75 percent of its current bidding eligibility. Failure to maintain the required activity level will result in the use of an activity rule waiver or a reduction in the bidder’s bidding eligibility for the next round of bidding. During Stage One, a bidder’s reduced eligibility for the next round will be calculated by multiplying the bidder’s current round activity by four thirds (4/3). Stage Two: In each round of the second stage, 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 a reduction in the bidder’s bidding eligibility for the next round of bidding. During Stage Two, a bidder’s reduced eligibility for the next round will be calculated by multiplying the bidder’s current round activity by twenty nineteenths (20/19). 21. The Bureaus request comment on these activity requirements. Under this proposal, the Bureaus will retain the discretion to change the activity requirements during the auction. For example, the Bureaus could decide to add an additional stage with a higher activity requirement, not to transition to Stage Two if they believe 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 proposed herein.18 If the Bureaus exercise this discretion, they will alert bidders by announcement in the FCC Auction System. 3. Activity Rule Waivers and Reducing Eligibility 22. Use of an activity rule waiver preserves the bidder’s eligibility despite the bidder’s activity in the current round being below the required minimum level. An activity rule waiver applies to an entire round of bidding, not to a particular construction permit. Activity rule waivers can be either proactive or automatic and are principally a mechanism for an auction participant to avoid the loss of bidding eligibility in the event that exigent circumstances prevent the participant from bidding in a particular round. 23. The FCC Auction System assumes that a bidder that does not meet the activity requirement would prefer to use 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 in which a bidder’s activity level is below the minimum required unless (1) the bidder has no activity rule waivers remaining; or 16 See 47 C.F.R. § 1.2104(f). 17 For example, when monitoring activity to determine when to change stages, the Bureaus may consider the percentage of bidding units of the construction permits receiving new provisionally winning bids, excluding any FCC-held construction permits. In past auctions, the Bureaus have generally — but not always — changed stages when this measure was approximately twenty percent or below for three consecutive rounds of bidding. 18 If the Bureaus implement stages with activity requirements other than the ones listed above, a bidder’s reduced eligibility for the next round will be calculated by multiplying the bidder’s current round activity by the reciprocal of the activity requirement. For example, with a 98 percent activity requirement, the bidder’s current round activity would be multiplied by 50/49; with a 100 percent activity requirement, the bidder’s current round activity would become its bidding eligibility (current round activity would be multiplied by 1/1). 8 (2) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the activity requirement. If a bidder has no waivers remaining and does not satisfy the required activity level, its current eligibility will be permanently reduced, possibly curtailing or eliminating the bidder’s ability to place additional bids in the auction. 24. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder 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 rule described above. Reducing eligibility is an irreversible action; once eligibility has been reduced, a bidder will not be permitted to regain its lost bidding eligibility, even if the round has not yet closed. 25. Under the proposed simultaneous stopping rule, 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 rule waiver (using the “apply waiver” function in the FCC Auction System) during a bidding round in which no bids are placed or withdrawn (if bid withdrawals are permitted in this auction), the auction will remain open and the bidder’s eligibility will be preserved. An automatic waiver applied by the FCC Auction System in a round in which there are no new bids, withdrawals (if bid withdrawals are permitted in this auction), or proactive waivers will not keep the auction open. A bidder cannot apply a proactive waiver after bidding in a round, and applying a proactive waiver will preclude a bidder from placing any bids in that round.19 Applying a waiver is irreversible; once a proactive waiver is submitted, that waiver cannot be unsubmitted, even if the round has not yet closed. 26. The Bureaus propose that each bidder in Auction 91 be provided with three activity rule waivers that may be used, as set forth above, at the bidder’s discretion during the course of the auction. The Bureaus seek comment on this proposal. 4. Reserve Price or Minimum Opening Bids 27. Section 309(j) asks the Commission to prescribe methods for establishing a reasonable reserve price or a minimum opening bid amount when FCC licenses or construction permits are subject to auction, unless the Commission determines that a reserve price or minimum opening bid amount is not in the public interest.20 Consistent with this mandate, the Commission has directed the Bureaus to seek comment on the use of a minimum opening bid amount and/or reserve price prior to the start of each auction.21 28. Normally, a reserve price is an absolute minimum price below which an item will not be sold in a given auction. Reserve prices can be either published or unpublished. A minimum opening bid, on the other hand, is the minimum bid price set at the beginning of the auction below which no bids are accepted. It is generally used to accelerate the competitive bidding process. It is possible for the minimum opening bid and the reserve price to be the same amount. 29. In light of Section 309(j)’s requirements, the Bureaus propose to establish minimum opening bid amounts for Auction 91. The Bureaus believe a minimum opening bid amount, which has been used in other broadcast auctions, is an effective bidding tool for accelerating the competitive bidding process.22 19 In general, once a bidder places a proactive waiver during a round, the FCC Auction System does not allow the bidder to take any other bidding-related action in that round, including placing bids or withdrawing bids (if bid withdrawals are permitted in this auction). 20 47 U.S.C. § 309(j)(4)(F). See also 47 C.F.R. § 1.2104(c), (d). 21 Broadcast First Report and Order, 13 FCC Rcd at 15971 ¶ 134; Part 1 Third Report and Order, 13 FCC Rcd at 454-56 ¶ 139-41. See 47 C.F.R. § 1.2104(c), (d). 22 See, e.g., Auction of 800 MHz SMR Upper 10 MHz Band, Minimum Opening Bids or Reserve Prices, Order, 12 FCC Rcd 16354, DA 97-2147 (WTB 1997); Auction of the Phase II 220 MHz Service Licenses, Auction Notice and Filing Requirements for 908 Licenses Consisting of Economic Area (EA), Economic Area Grouping (EAG), and Nationwide Licenses, Scheduled for September 15, 1998, Minimum Opening Bids and Other Procedural Issues, (continued….) 9 The Bureaus do not propose to establish a separate reserve price for the construction permits to be offered in Auction 91. 30. For Auction 91, the Bureaus propose minimum opening bid amounts determined by taking into account the type of service and class of facility offered, market size, population covered by the proposed broadcast facility, and recent broadcast transaction data. A proposed minimum opening bid amount for each construction permit available in Auction 91 is set forth in Attachment A to this Public Notice. The Bureaus seek comment on these proposals. 31. If commenters believe that these minimum opening bid amounts will result in unsold construction permits, are not reasonable amounts, or should instead operate as reserve prices, they should explain why this is so and comment on the desirability of an alternative approach. Commenters are advised to support their claims with valuation analyses and suggested amounts or formulas for reserve prices or minimum opening bids. In establishing the minimum opening bid amounts, the Bureaus particularly seek comment on factors that could reasonably have an impact on valuation of the broadcast spectrum, including the type of service and class of facility offered, market size, population covered by the proposed FM broadcast facility and any other relevant factors. 5. Bid Amounts 32. The Bureaus propose 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.23 Under this proposal, the FCC Auction System interface will list the acceptable bid amounts for each construction permit.24 33. 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 for the construction permit. After there is a provisionally winning bid for a construction permit, the minimum acceptable bid amount will be a certain 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. If, for example, the minimum acceptable bid percentage is 10 percent, the minimum acceptable bid amount will equal (provisionally winning bid amount) * (1.10), rounded.25 If bid withdrawals are permitted in this auction, in the case of a construction permit for which the provisionally winning bid has been withdrawn, the minimum acceptable bid amount will equal the second highest bid received for the construction permit.26 34. The eight additional bid amounts are calculated using the minimum acceptable bid amount and a bid increment percentage, which need not be the same as the percentage used to calculate the minimum acceptable bid amount. The first additional acceptable bid amount equals the minimum acceptable bid amount times one plus the bid increment percentage, rounded. If, for example, the bid increment percentage is 5 percent, the calculation is (minimum acceptable bid amount) * (1 + 0.05), rounded, or (minimum acceptable bid amount) * 1.05, rounded; the second additional acceptable bid amount equals the minimum acceptable bid amount times one plus two times the bid increment (Continued from previous page) Public Notice, 13 FCC Rcd 16445, DA 98-1010 (WTB 1998). 23 Bidders must have sufficient eligibility to place a bid on the particular construction permit. See Section IV.B.1. “Upfront Payments and Bidding Eligibility,” above. 24 In the event of duplicate bid amounts due to rounding, the FCC Auction System will omit the duplicates and will list fewer than nine acceptable bid amounts for the construction permit. 25 Results are rounded using the Commission's standard rounding procedure for auctions: 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 $1,000 are rounded to the nearest $10. 26 See Section IV.B.7. “Bid Removal and Bid Withdrawal,” below. 10 percentage, rounded, or (minimum acceptable bid amount) * 1.10, rounded; etc. The Bureaus will round the results using the Commission’s standard rounding procedures for auctions.27 35. For Auction 91, the Bureaus propose to use a minimum acceptable bid percentage of 10 percent. This means that the minimum acceptable bid amount for a construction permit will be approximately 10 percent greater than the provisionally winning bid amount for the construction permit. To calculate the additional acceptable bid amounts, the Bureaus propose to use a bid increment percentage of 5 percent. The Bureaus seek comment on these proposals. 36. The Bureaus retain the discretion to change the minimum acceptable bid amounts, the minimum acceptable bid percentage, the bid increment percentage, and the number of acceptable bid amounts if the Bureaus determine that circumstances so dictate. Further, the Bureaus retain the discretion to do so on a construction permit-by-construction permit basis. The Bureaus also retain the discretion to limit (a) the amount by which a minimum acceptable bid for a construction permit may increase compared with the corresponding provisionally winning bid, and (b) the amount by which an additional bid amount may increase compared with the immediately preceding acceptable bid amount. For example, the Bureaus could set a $10,000 limit on increases in minimum acceptable bid amounts over provisionally winning bids. Thus, if calculating a minimum acceptable bid using the minimum acceptable bid percentage results in a minimum acceptable bid amount that is $12,000 higher than the provisionally winning bid on a construction permit, the minimum acceptable bid amount would instead be capped at $10,000 above the provisionally winning bid. The Bureaus seek comment on the circumstances under which the Bureaus should employ such a limit, factors the Bureaus should consider when determining the dollar amount of the limit, and the tradeoffs in setting such a limit or changing other parameters, such as changing the minimum acceptable bid percentage, the bid increment percentage, or the number of acceptable bid amounts. If the Bureaus exercise this discretion, they will alert bidders by announcement in the FCC Auction System during the auction. 6. Provisionally Winning Bids 37. Provisionally winning bids are bids that would become final winning bids if the auction were to close in that given round. At the end of a bidding round, a provisionally winning bid for each construction permit will be determined based on the highest bid amount received for the construction permit. In the event of identical high bid amounts being submitted on a construction permit in a given round (i.e., tied bids), the Bureaus will use a random number generator to select a single provisionally winning bid from among the tied bids. (Each bid is assigned a random number, and the tied bid with the highest random number wins the tiebreaker.) The remaining bidders, as well as the provisionally winning bidder, 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. If any bids are received on the construction permit in a subsequent round, the provisionally winning bid again will be determined by the highest bid amount received for the construction permit. 38. A provisionally winning bid will remain the provisionally winning bid until there is a higher bid on the construction permit at the close of a subsequent round, unless the provisionally winning bid is withdrawn (if bid withdrawals are permitted in this auction). Bidders are reminded that provisionally winning bids count toward activity for purposes of the activity rule.28 7. Bid Removal and Bid Withdrawal 39. For Auction 91, the Bureaus propose the following bid removal procedures. Before the close of a bidding round, a bidder has the option of removing any bid placed in that round. By removing selected bids in the FCC Auction System, a bidder may effectively “unsubmit” any bid placed within that round. In contrast to the bid withdrawal provisions described below, a bidder removing a bid placed in 27 See note 25 (concerning rounding), above. 28 See Section IV.B.2. “Activity Rule,” above. 11 the same round is not subject to a withdrawal payment. Once a round closes, a bidder may no longer remove a bid. The Bureaus seek comment on this bid removal proposal. 40. The Bureaus also seek comment on whether bid withdrawals should be permitted in Auction 91. When permitted in an auction, bid withdrawals provide a bidder with the option of withdrawing bids placed in prior rounds that have become provisionally winning bids. A bidder may withdraw its provisionally winning bids using the “withdraw bids” function in the FCC Auction System. A bidder that withdraws its provisionally winning bid(s), if permitted, is subject to the bid withdrawal payment provisions of the Commission rules.29 41. In the Part 1 Third Report and Order, the Commission explained that it had found in prior auctions that allowing bid withdrawals risks encouraging insincere bidding and the use of withdrawals for anti-competitive strategic purposes, such as signaling other bidders.30 In a more recent rulemaking proceeding, the Commission emphasized the anti-competitive effects of bid withdrawals, especially late in an auction.31 The Bureaus, therefore, have discretion in managing the auction to limit the number of withdrawals to prevent bidding abuses. The Commission stated that the Bureaus should exercise their discretion, consider limiting the number of rounds in which bidders may withdraw bids, and prevent bidders from bidding on a particular market if the Bureaus find that a bidder is abusing the Commission’s bid withdrawal procedures.32 42. Based on this guidance and on our experience with past auctions of FM broadcast construction permits, the Bureaus propose to prohibit bidders from withdrawing any bids after the close of the round in which bids were placed. This proposal is made in recognition of the site-specific nature and wide geographic dispersion of the permits available in this auction, which suggests that potential applicants for this auction may have fewer incentives to aggregate permits through the auction process (as compared with bidders in many auctions of wireless licenses). Thus, the Bureaus believe that it is unlikely that bidders will have a need to withdraw bids in this auction. We also remain mindful that bid withdrawals, particularly those made late in this auction, could result in delays in licensing new FM stations and attendant delays in the offering of new broadcast service to the public. The Bureaus seek comment on this approach. C. Post-Auction Payments 1. Interim Withdrawal Payment Percentage 43. In the event that the Bureaus allow bid withdrawals in Auction 91, the Bureaus propose that the interim bid withdrawal payment be 20 percent of the withdrawn bid. A bidder that withdraws a bid during an auction is subject to a withdrawal payment equal to the difference between the amount of the withdrawn bid and the amount of the winning bid in the same or a subsequent auction.33 However, if a construction permit for which a bid has been withdrawn does not receive a subsequent higher bid or winning bid in the same auction, the final withdrawal payment cannot be calculated until a corresponding construction permit receives a higher bid or winning bid in a subsequent auction. When that final 29 47 C.F.R. §§ 1.2104(g), 1.2109. 30 See Part 1 Third Report and Order, 13 FCC Rcd at 458-60 ¶ 148-50. After stating a few paragraphs later that allowing bid withdrawals facilitates efficient aggregation of licenses and construction permits and the pursuit of backup strategies as information becomes available during the course of an auction, the Commission immediately again noted that in some instances bidders may seek to withdraw bids for improper reasons. Id. 31 See Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission’s Competitive Bidding Rules and Procedures, WT Docket No. 05-211, FCC 06-4, Report and Order, 21 FCC Rcd 891, 902-03 ¶ 29, 904 n.57 (2006) (“CSEA/Part 1 Report and Order”) (“[T]here have been a disproportionate number of withdrawals late in our auctions, indicating that some bidders have been placing and then withdrawing bids primarily to discourage potential or existing market competitors from seeking to acquire licenses.”). 32 Part 1 Third Report and Order, 13 FCC Rcd at 458-60 ¶¶ 148-50. 33 47 C.F.R. § 1.2104(g)(1). 12 payment cannot yet be calculated, the bidder responsible for the withdrawn bid is assessed an interim bid withdrawal payment, which will be applied toward any final bid withdrawal payment that is ultimately assessed. 44. The amount of the interim bid withdrawal payment may range from three percent to 20 percent of the withdrawn bid amount, with the percentage generally being higher where there is greater risk of bid withdrawals being used for anti-competitive purposes, such as when there is little need for bidders to aggregate permits. As discussed above, this is the case in Auction 91. The Bureaus therefore believe that the maximum interim bid withdrawal payment percentage allowed by section 1.2104(g)(1) is justified, in the event bid withdrawals are allowed. Commenters advocating the use of bid withdrawals should also address the percentage of the interim bid withdrawal payment. 2. Additional Default Payment Percentage 45. Any winning bidder that defaults or is disqualified after the close of an 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) is liable for a default payment under 47 C.F.R. § 1.2104(g)(2). This payment consists of 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. 46. The Commission’s rules provide that, in advance of each auction, a percentage shall be established between three percent and twenty percent of the applicable bid to be assessed as an additional default payment.34 As the Commission has indicated, the level of this additional payment in each auction will be based on the nature of the service and the construction permits being offered.35 47. For Auction 91, the Bureaus propose to establish an additional default payment of twenty percent. As noted in the CSEA/Part 1 Report and Order, defaults weaken the integrity of the auction process and may impede the deployment of service to the public, and an additional default payment of more than the previous three percent will be more effective in deterring defaults.36 In light of these considerations for Auction 91, the Bureaus propose an additional default payment of twenty percent of the relevant bid. The Bureaus seek comment on this proposal. V. DEADLINES AND FILING PROCEDURES 48. Comments are due on or before October 13, 2010, and reply comments are due on or before October 27, 2010. All filings related to procedures for Auction 91 must refer to AU Docket No. 10-183. Comments may be submitted using the Commission’s Electronic Comment Filing System (“ECFS”) or by filing paper copies.37 The Bureaus strongly encourage interested parties to file comments electronically. 49. Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS at http://www.fcc.gov/cgb/ecfs. Filers should follow the instructions provided on the website for submitting comments. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket number, AU Docket No. 10-183. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov, and include the following words in the body of the message: “get form.” A sample form and directions will be sent in response. 50. Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by 34 See 47 C.F.R. § 1.2104(g)(2). 35 See CSEA/Part 1 Report and Order, 21 FCC Rcd at 903-04 ¶¶ 30-31. 36 Id. at 902-03 ¶ 29. 37 See Electronic Filing of Documents in Rulemaking Proceedings, GC Docket No. 97-113, Report and Order, FCC 98-56, 13 FCC Rcd 11322 (1998). 13 first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary Attn: WTB/ASAD, Office of the Secretary, Federal Communications Commission. · The Commission’s contractor will receive hand-delivered or messenger-delivered paper filings for the Commission’s Secretary at the FCC Headquarters building located at 445 12th Street, SW, Room TW-A325, Washington, DC 20554. The filing hours at this location are 8:00 a.m. to 7:00 p.m. Eastern Time (ET). All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. · Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. · U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW, Washington DC 20554. 51. Auction 91 E-mail Box: The Bureaus also request that a copy of all comments and reply comments be submitted electronically to the following address: auction91@fcc.gov. 52. Copies of comments and reply comments will be available for public inspection between 8:00 a.m. and 4:30 p.m. ET Monday through Thursday, or 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW, Washington, DC 20554, and will also be accessible through the search function on the ECFS web page at http://www.fcc.gov/cgb/ecfs. 53. This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission’s ex parte rules.38 Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. Other provisions pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in Section 1.1206(b) of the Commission’s rules. 54. To request materials in accessible formats (Braille, large print, electronic files, audio format) for people with disabilities, send an e-mail to fcc504@fcc.gov or call the Consumer and Government Affairs Bureau at (202) 418-0530 or (202) 418-0432 (TTY). VI. CONTACTS 55. For further information concerning this proceeding, contact the offices listed below: Audio Division, Media Bureau For service rules questions: Lisa Scanlan or Tom Nessinger at (202) 418-2700 Auctions and Spectrum Access Division, Wireless Telecommunications Bureau For general auction questions: Roy Knowles or Linda Sanderson at (717) 338-2868 For auctions legal questions: Lynne Milne or Howard Davenport at (202) 418-0660 Office of Communications Business Opportunities For questions concerning small business inquiries: (202) 418-0990 - FCC - 38 47 C.F.R. §§ 1.1200(a), 1.1206.