PUBLIC NOTICE Federal Communications Commission News Media Information 202 / 418-0500 445 12th St., S.W. Internet: http://www.fcc.gov Washington, D.C. 20554 TTY: 1-888-835-5322 DA 12-148 February 9, 2012 AUCTION OF FM BROADCAST CONSTRUCTION PERMITS STATUS OF SHORT-FORM APPLICATIONS TO PARTICIPATE IN AUCTION 93 AU Docket No. 11-146 1. By this Public Notice, the Wireless Telecommunications and Media Bureaus (collectively the “Bureaus”) announce the status of the 145 short-form applications received for Auction 93. This auction, which is scheduled to begin on Tuesday, March 27, 2012, will offer 119 construction permits in the FM broadcast service.1 This Public Notice also provides other important information and reminders relating to the auction. I. SHORT-FORM APPLICATIONS AND UPFRONT PAYMENTS A. Status of Short-Form Applications 2. The short-form applications (FCC Forms 175) for Auction 93 have been reviewed for completeness and compliance with the Commission’s rules, and have been classified into the categories listed below. Complete ........................................................................ 111 applications Incomplete ....................................................................... 32 applications Rejected.............................................................................. 2 applications 3. Complete Applications. Attachment A to this Public Notice lists the short-form applications for Auction 93 that are complete. Each of these applicants will become a qualified bidder upon receipt by the Commission of the required upfront payment by the February 22, 2012, deadline described below.2 Each applicant must also maintain the accuracy of its short-form application as 1 See “Auction of FM Broadcast Construction Permits Scheduled for March 27, 2012; Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 93,” AU Docket No. 11-146, Public Notice, DA 11-1845, 26 FCC Rcd 15484 (WTB/MB 2011) (“Auction 93 Procedures Public Notice”). A summary of this public notice was published at 76 Fed. Reg. 78645 (Dec. 19, 2011). 2 See section I.B., below; see also 47 C.F.R. § 1.2106 (upfront payment rule). 2 required by sections 1.65 and 1.2105 of the Commission’s rules.3 Attachment A indicates the construction permits selected by each applicant on its short-form application. If an applicant claimed a new entrant bidding credit,4 the applicant’s claimed bidding credit percentage for each construction permit is indicated as 35 percent or 25 percent. 4. Designation of an application as complete indicates the applicant has provided the certifications and basic information concerning its qualifications as required by the Commission’s competitive bidding rules for participation in the auction. Under the Commission’s two-phased auction application process, a winning bidder must submit a long-form application after the close of the auction to demonstrate its qualifications to hold a Commission construction permit or license and, if a bidding credit is requested, its eligibility for the bidding credit requested.5 Thus, a determination that a short-form application is complete and complies with the Commission’s competitive bidding rules and policies is not determinative of an applicant’s qualifications to hold a license or of entitlement to a bidding credit. In the event that an applicant is found unqualified to be a Commission permittee or licensee or is ineligible for claimed designated entity benefits, it will be liable for any obligations incurred as a result of its participation in the auction.6 5. Incomplete Applications. Attachment B to this Public Notice lists the short-form applications for Auction 93 found to be incomplete or otherwise deficient. Each of these applicants will receive overnight correspondence indicating the information that is required to make its application complete. To become a qualified bidder, each applicant must make the required upfront payment and resubmit its application, having corrected any deficiencies, by the February 22, 2012, deadline.7 Each applicant must also maintain the accuracy of its short-form application as required by sections 1.65 and 1.2105 of the Commission’s rules.8 6. Rejected Applications. Attachment C to this Public Notice lists the short-form applications for Auction 93 classified as rejected. Applicants whose applications have been classified as rejected are 3 47 C.F.R. §§ 1.65, 1.2105(c). Sections 1.65(a) and 1.2105(c) of the Commission’s rules require each applicant in competitive bidding proceedings to furnish additional or corrected information within five days of a significant occurrence, or to amend its short-form application no more than five days after the applicant becomes aware of the need for amendment. See Procedural Amendments to Commission Part 1 Competitive Bidding Rules, WT Docket No. 10-18, Order, FCC 10-4, 25 FCC Rcd 521, 523 ¶ 8 (2010) (“Part 1 Procedural Amendments Order”). See also 47 C.F.R. § 1.2105(c)(6) (any applicant that makes or receives a prohibited communication must report such communication in writing to the Commission no later than five business days after the communication occurs); 47 C.F.R. § 73.5007(a) (changes in circumstances underlying an applicant’s new entrant bidding credit eligibility claim must be reported immediately and no later than five business days after the change occurs). 4 The new entrant bidding credit is not available to an applicant if it, and/or any individual or entity with an attributable interest in the applicant, has an attributable interest in more than three media of mass communications, or in any existing media of mass communications in the “same area” as the broadcast facility proposed in this auction. 47 C.F.R. § 73.5007. See 47 C.F.R. § 73.5007(b)(1)-(3) for the specific service definitions of “same area.” 5 See 47 C.F.R. §§ 1.2107, 1.2109, 73.5005; 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, 2376-77 ¶¶ 163-168 (1994). 6 See generally 47 C.F.R. § 1.2109. 7 See 47 C.F.R. §§ 1.2105(b), 1.2106. 8 47 C.F.R. §§ 1.65, 1.2105. 3 disqualified from participation in Auction 93.9 Rejected short-form applications are applications in which the applicant has checked “yes” to the Noncommercial Educational election question on the FCC Form 175. The Commission concluded in the Second Report and Order in Reexamination of the Comparative Standard for Noncommercial Educational Applicants that any application for a noncommercial educational (“NCE”) station that is mutually exclusive with any application for a commercial broadcast station will be returned as unacceptable for filing.10 The applications for NCE FM broadcast stations identified in Attachment C are mutually exclusive with applications for FM commercial broadcast stations,11 and therefore are excluded from further Auction 93 participation.12 B. Upfront Payments 7. Upfront payments and accompanying FCC Remittance Advice forms (FCC Form 159, Revised 2/03) for Auction 93 are due in the proper account at U.S. Bank, St. Louis, Missouri, by 6:00 p.m. Eastern Time (ET) on Wednesday, February 22, 2012. In order to meet the Commission’s upfront payment deadline, an applicant’s payment must be credited to the Commission’s account by the deadline. Payments must be made by wire transfer only in accordance with the instructions provided in the Auction 93 Procedures Public Notice.13 No other payment method is acceptable for this auction.14 Each applicant is reminded to provide its FCC Registration Number (“FRN”) on the FCC Form 159 and to submit the same FRN with all future payments for Auction 93. At least one hour before placing the order for the wire transfer (but on the same business day), each applicant must fax a completed FCC Form 159 to U.S. Bank at (314) 418-4232. 8. Each applicant is responsible for ensuring timely submission of its upfront payment and for timely filing of an accurate and complete FCC Remittance Advice Form (FCC Form 159). An applicant should coordinate with its financial institution well ahead of the due date regarding its wire transfer and allow sufficient time for the wire transfer to be initiated and completed prior to the deadline. The Commission has repeatedly cautioned auction participants about the importance of planning ahead to 9 Each of these rejected applicants will retain its status as an applicant in Auction 93 and will remain subject to the Commission’s rules prohibiting certain communications, 47 C.F.R. §§ 1.2105(c) and 73.5002(d), but will not be eligible to bid. 10 Reexamination of the Comparative Standard for Noncommercial Educational Applicants, MM Docket No. 95-31, Second Report and Order, 18 FCC Rcd 6691, 6699-6700 ¶¶ 21-22, FCC 03-44 (2003); Memorandum Opinion and Third Order on Reconsideration, 23 FCC Rcd 17423, FCC 08-219 (2008). This procedure has been codified at 47 C.F.R. § 73.5002(b). 11 Applications specifying the same FM station construction permit are considered mutually exclusive. 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, 15979 n.166 (1998) (Broadcast First Report and Order), Memorandum Opinion and Order, FCC 99-74, 14 FCC Rcd 8724 (1999), 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). 12 The Bureaus provided guidance on this noncommercial educational status election in the Auction 93 Procedures Public Notice, including an explanation of the consequences of claiming such status in the context of this auction. See Auction 93 Procedures Public Notice, 26 FCC Rcd at 15506 ¶ 76. 13 See Auction 93 Procedures Public Notice, 26 FCC Rcd at 15510-11 ¶¶ 94-99. A wire transfer is a transaction that is initiated through an applicant’s bank. It authorizes the bank to wire funds from an applicant’s account to the Commission’s account. 14 The Commission will not accept checks, credit cards, or automated clearing house (“ACH”) payments. 4 prepare for unforeseen last-minute difficulties in making payments by wire transfer.15 Each applicant should obtain confirmation from its financial institution that its wire transfer was successful and from Commission staff that the applicant’s payment has been received by the Commission in the proper account. For confirmation from the Commission, an applicant may contact Gail Glasser of the Office of Managing Director’s Auctions Accounting Group at (202) 418-0578, or Theresa Meeks at (202) 418- 2945. Detailed information regarding upfront payments, including additional requirements for “former defaulters,” can be found in the Auction 93 Procedures Public Notice under section II.F. and section III.D.16 C. Short-Form Application Changes and Resubmission 9. Each applicant whose application for Auction 93 has been identified as incomplete must address defects in its application during the resubmission window, which is now open.17 Corrected applications must be filed prior to 6:00 p.m. ET on Wednesday, February 22, 2012. This will be the only opportunity to cure application defects. Late resubmissions will not be accepted. An applicant that filed an application deemed to be incomplete or otherwise deficient, as noted in Attachment B to this Public Notice, must submit a timely and sufficient upfront payment before the Commission will review its resubmitted application. If an application is incomplete or otherwise deficient after the resubmission deadline has passed or if the required upfront payment is not made by the specified deadline, the applicant will not be permitted to participate in bidding.18 10. The Bureaus are sending a letter to each applicant whose application has been deemed incomplete identifying the deficiencies found during the staff’s initial review of the application. These deficiency letters are being sent via overnight delivery to the contact person and contact address listed on each incomplete application. 11. During this resubmission window, all applicants may make other minor changes as described below in more detail. We remind applicants that sections 1.65 and 1.2105 of the Commission’s rules require an applicant to maintain the accuracy and completeness of information furnished in its pending short-form application.19 Each applicant should amend its short-form application to furnish additional or corrected information within five days of a significant occurrence, or no more than five days after the applicant becomes aware of the need for amendment.20 To the extent that changes may be made directly in the electronic Form 175 at the time of the amendment, an applicant must modify its short-form application electronically.21 An applicant seeking to report changes outside of the resubmission window 15 See, e.g., Letter to Lee G. Petro, from Margaret W. Wiener, Chief, Auctions and Spectrum Access Division, DA 10-1270, 25 FCC Rcd 9046 (2010); Letter to David G. O’Neil, Esq. from Margaret W. Wiener, Chief, Auctions and Spectrum Access Division, DA 08-622, 23 FCC Rcd 4765 (2008). 16 See Auction 93 Procedures Public Notice, 26 FCC Rcd at 15504-06 ¶¶ 69-74, 15510-13 ¶¶ 94-105. 17 47 C.F.R. § 1.2105(b)(2). 18 Each of these applicants will retain its status as an applicant in Auction 93 and will remain subject to the Commission’s rules prohibiting certain communications, 47 C.F.R. §§ 1.2105(c) and 73.5002(d), but will not be eligible to bid. See Broadcast First Report and Order, 13 FCC Rcd at 15979-80 ¶ 153. 19 47 C.F.R. §§ 1.65, 1.2105. 20 Id. 21 During the resubmission phase, applicants will have electronic access to update the following application fields: jurisdiction of formation/country of citizenship, applicant address, responsible party information, responsible party address, contact information, contact address, authorized bidder information, bidding option (telephonic or electronic), agreement information, and ownership information. During all phases of the application process, 5 must submit a letter briefly summarizing the changes by e-mail to the attention of Margaret Wiener, Chief, Auctions and Spectrum Access Division, at the following address: auction93@fcc.gov. Questions about changes should be directed to the Auctions and Spectrum Access Division at (202) 418-0660. 12. The electronic Form 175 will not permit an applicant to make certain modifications to its application (e.g., change the applicant’s name, change their construction permit selections, change the certifying official, claim eligibility for a higher percentage of bidding credit or change their identification of the application’s proposed facilities as noncommercial educational).22 Administrative and minor changes can be made, including, for example, deletion and addition of authorized bidders (to a maximum of three), revision of addresses and telephone numbers of the applicants and their contact persons, and changes to responsible party. While changes can be made to ownership and agreement information,23 we remind each applicant that any application changes must comply with the Commission’s rules, which prohibit, among other things, changes in ownership that would constitute an assignment or transfer of control, as well as changes in ownership or agreements that would constitute violations of section 1.2105(c).24 If any application is changed to effect a major amendment, such as a change in control,25 the applicant will be ineligible to bid in the auction.26 II. OTHER IMPORTANT AUCTION 93 INFORMATION 13. Qualified Bidders. Approximately three weeks after the upfront payment deadline, following Commission review of resubmitted short-form applications and the correlation of payments and applications, a public notice listing all applicants qualified to bid in Auction 93 will be released. The same public notice will also include bidding schedules for both the mock auction and the first day of bidding. 14. Due Diligence. Potential bidders are solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the value of the broadcast facilities being offered in Auction 93. The Commission makes no representations or warranties about the use of this spectrum for particular services. We strongly encourage potential bidders to conduct their own research prior to the beginning of bidding in order to determine the existence of pending proceedings, pleadings, applications, or authorizations that might affect their decisions regarding participation in the auction. Potential bidders should also review all underlying Commission orders, such as the specific report and applicants have electronic access to make certain administrative changes including updates to: applicant address, responsible party address, contact information, contact address, and bidding option (telephonic or electronic). 22 47 C.F.R. § 1.2105(b). The Commission’s electronic Form 175 is designed to prevent inadvertent major changes by applicants. Therefore, applicants are not permitted to make changes to the following data fields after the short-form filing deadline: applicant name, legal classification, certifier, bidding credit, and permit selection. 23 For more information on making administrative changes to an existing application, see “Minor Modifications to Short-Form Applications” and “Maintaining Current Information in Short-Form Applications” in the Auction 93 Procedures Public Notice, 26 FCC Rcd at 15506-08 ¶¶ 77-83 and Attachment B at 15539. 24 See 47 C.F.R. § 1.2105(b) – (c). 25 See Letter to Koch Broadcasting Corp. and Birach Broadcasting Corp. from Margaret W. Wiener, Chief, Auctions & Spectrum Access Div. and Peter H. Doyle, Chief, Audio Div., DA 06-38, 21 FCC Rcd 147 (2006) (dismissing short-form application filed for AM Auction 84 by Koch due to major amendment changing control to Birach). 26 See 47 C.F.R. § 1.2105(b)(2). 6 order amending the FM Table of Allotments and allotting the FM channel(s) on which they plan to bid.27 Additionally, a potential bidder should perform technical analyses and/or refresh any previous analyses to assure itself that, should it be a winning bidder for any Auction 93 construction permit, it will be able to build and operate facilities that will fully comply with the Commission’s current technical and legal requirements. Participants in this auction should continue such research throughout the auction. For further details regarding due diligence, please refer to the Auction 93 Procedures Public Notice, section I.B.3.28 15. New Entrant Bidding Credit Eligibility. An applicant seeking a new entrant bidding credit must have indicated on its short-form application that it is claiming eligibility for a credit, along with the percentage of the bidding credit it is claiming.29 The bidding credit percentage indicated on the short-form application as of the January 12, 2012, filing deadline is the maximum level of bidding credit that an applicant can claim for this auction. Circumstances may arise after the short-form application deadline under which an applicant may no longer be eligible to claim a bidding credit or may only be eligible for a bidding credit at a lower percentage. This might be the case, for example, where the applicant or one of its attributable interest holders acquires an interest in another radio station after the January 12, 2012, deadline.30 Any change affecting eligibility for the new entrant bidding credit must be reported immediately, and no later than five business days after the change occurs,31 if the change could result in the reduction or loss of the credit originally claimed on the short-form application.32 To report any change regarding its new entrant bidding credit eligibility claim, an applicant must submit a letter briefly summarizing the change by e-mail to the attention of Margaret Wiener, Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, at the following address: auction93@fcc.gov. 16. Prohibition of Certain Communications. The Bureaus remind applicants that sections 1.2105(c) and 73.5002(d) of the Commission’s rules prohibit applicants for any of the same geographic license areas from communicating with each other about bids, bidding strategies, or settlements, which may include communications regarding the post-auction market structure, unless they have identified each other on their short-form applications as parties with which they have entered into agreements under section 1.2105(a)(2)(viii).33 In broadcast services, the “geographic license area” is the market designation 27 See 47 C.F.R. § 73.202. The interactive auction tutorial for Auction 93 provides additional information on accessing an underlying allotment order. The auction tutorial may be accessed from the FCC’s Auction 93 web page at http://wireless.fcc.gov/auctions/93/ through the “Auction Tutorial” link. 28 See Auction 93 Procedures Public Notice, 26 FCC Rcd at 15494-96 ¶¶ 31-37. 29 47 C.F.R. § 73.5007. 30 Additional information on the new entrant bidding credit may be found in the Auction 93 Procedures Public Notice, 26 FCC Rcd at 15500-03 ¶¶ 56-65. 31 An applicant’s obligation to make such amendment or modification to its pending application continues until it is made. See 47 C.F.R. §§ 1.65, 1.2105(b)(4), 73.5007(a); see also Part 1 Procedural Amendments Order, 25 FCC Rcd at 522-23 ¶¶ 6-8. 32 The Commission has recognized that changes occurring subsequent to the short form filing deadline which could serve as the basis for reducing or eliminating an applicant’s previously claimed bidding credit eligibility may arise in a wide range of circumstances. See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, MB Docket No. 09-52, First Report and Order and Further Notice of Proposed Rule Making, FCC 10-24, 25 FCC Rcd 1583, 1611-14 ¶¶ 57-63 (2010). See also 47 C.F.R. § 73.5007(a). 33 47 C.F.R. §§ 1.2105(a)(2)(viii), 1.2105(c)(1). See also 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 7 of the particular service.34 For the FM service, the market designation is the particular vacant FM allotment. In Auction 93, this rule applies to applicants designating on the short-form application any of the same FM allotments.35 17. This prohibition took effect as of the short-form application filing deadline, which for Auction 93 was January 12, 2012, at 6:00 p.m. ET, and extends until the post-auction down payment deadline, which will be announced in a public notice released shortly following close of bidding.36 The prohibition applies to all applicants regardless of whether such applicants become qualified bidders, submit an upfront payment, or actually bid.37 18. We also emphasize that, for purposes of this prohibition, an “applicant” includes all controlling interests of the entity submitting a short-form application to participate in the auction — including all officers and directors of that entity and 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.38 Thus, for example, a violation of section 1.2105(c) of the Commission’s rules could occur when an individual serves as an officer and/or director for two or more competing applicants that have not disclosed an agreement on both short-form applications.39 Therefore, applicants should continue to take precautionary steps to prevent prohibited communications between any of the entities or persons described covered by the prohibition.40 17546 (2001) (“Part 1 Seventh Report and Order”); 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, 15297- 98 ¶¶ 7-8 (2000). 34 Part 1 Seventh Report and Order, 16 FCC Rcd at 17549 n.12. 35 Additional guidance on the requirements of sections 1.2105(c) and 73.5002(d) may be found in the Auction 93 Procedures Public Notice. See Auction 93 Procedures Public Notice, 26 FCC Rcd at 15488-93 ¶¶ 8-28. 36 47 C.F.R. § 1.2105(c)(1). 37 For example, the Commission imposed a forfeiture in the amount of $100,000 for violation of section 1.2105(c), even though the applicant never made an upfront payment for the auction and was not listed as a qualified bidder. See Northeast Communications of Wisconsin, Inc., Forfeiture Order, DA 04-3027, 19 FCC Rcd 18635 (2004). The Commission subsequently reduced the amount of the forfeiture to $75,000 due to the parties’ history of compliance with Commission rules. See Star Wireless, LLC and Northeast Communications of Wisconsin, Inc., Order on Review, FCC 07-80, 22 FCC Rcd 8943 (2007), review denied, Star Wireless, LLC v. FCC, 522 F.3d 469 (D.C. Cir. 2008) (section 1.2105(c) applies to applicants regardless of whether they are qualified to bid). The United States District Court for the Eastern District of Wisconsin granted summary judgment in favor of the United States pursuant to an effort by the Department of Justice to enforce the forfeiture. United States v. Northeast Communications of Wis., Inc., Decision and Order, Case No. 07-C-715, 608 F. Supp.2d 1049 (D. Wis. 2008). See also Letter to Robert Pettit, from Margaret W. Wiener, Chief, Auctions and Industry Analysis Div., DA 00-2905, 16 FCC Rcd 10080 (2000) (declining to exempt an applicant’s controlling interest from coverage by the rule, even though the applicant never made an upfront payment for the auction and was not listed as a qualified bidder). 38 47 C.F.R. § 1.2105(c)(7)(i). 39 See Lotus Communications Corp., Order, DA 08-1364, 23 FCC Rcd 9107 (2008); Letter to Colby M. May from Barbara A. Kreisman, Chief, Video Div., and Margaret W. Wiener, Chief, Auctions & Spectrum Access Div., DA 05-2445, 20 FCC Rcd 14648 (2005) (finding apparent violation of 47 C.F.R. § 1.2105(c) where applicants with mutually exclusive applications reported sharing same individual as an officer and director and reported no agreement). 40 See Application of Nevada Wireless, Memorandum Opinion and Order, DA 98-1137, 13 FCC Rcd 11973, 11977- 78 ¶¶ 11-13 (1998). The Bureaus caution, however, that the mere existence of precautionary measures will not outweigh specific evidence of prohibited communications, nor will it preclude the initiation of an investigation when warranted. Id. at 11978 ¶ 13. 8 19. If parties had agreed in principle on all material terms of a bidding agreement(s), those parties must have been identified on the short-form application under section 1.2105(c), even if the agreement had not been reduced to writing. If parties had not agreed in principle by the short-form application filing deadline on January 12, 2012, an applicant should not have included the names of those parties on its application, and must not have continued negotiations.41 20. Disclosure Obligations and Possible Sanctions. Sections 1.65 and 1.2105(c) of the Commission’s rules require each auction applicant to maintain the accuracy and completeness of information furnished in its pending application and to provide additional or corrected information within five days of a significant occurrence, or amend its short-form application no more than five days after the applicant becomes aware of the need for amendment.42 In addition, section 1.2105(c)(6) requires each auction applicant to report a prohibited discussion or disclosure regarding bids or bidding strategy to the Commission in writing immediately, but in no case later than five business days after the communication occurs, even if the communication does not result in an agreement or understanding regarding bids or bidding strategy that must be reported under section 1.65.43 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.44 21. Reporting Prohibited Communications. A party reporting a communication pursuant to sections 1.65 or 1.2105(c) must take care to ensure that any such report of a prohibited communication does not itself give rise to a violation of section 1.2105(c). 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. 22. The Commission amended section 1.2105(c) to minimize the risk of inadvertent dissemination of information by requiring any party to file only a single report and to file that report with Commission personnel expressly charged with administering the Commission’s auctions.45 Pursuant to the amended rule, any report required by section 1.2105(c) must be filed consistent with the instructions set forth in the Auction 93 Procedures Public Notice.46 Any such report must be filed immediately with the Chief of the Auctions and Spectrum Access Division and either submitted by e-mail to auction93@fcc.gov or delivered to the following address: Margaret W. Wiener, Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW, Room 6423, Washington, DC 20554. Any party submitting such a report should include a cover sheet to avoid the inadvertent dissemination of information contained in the report. 41 See Wireless Telecommunications Bureau Clarifies Spectrum Auction Anti-Collusion Rules, Public Notice, DA 95-2244, 11 FCC Rcd 9645 (1995). 42 47 C.F.R. §§ 1.65, 1.2105(c). See also Auction 93 Procedures Public Notice, 26 FCC Rcd at 15492-93 ¶¶ 21- 26. 43 47 C.F.R. § 1.2105(c)(6); see also Part 1 Seventh Report and Order, 16 FCC Rcd at 17555 ¶ 17. 44 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, 15395 ¶¶ 285-86 (2007). 45 Part 1 Procedural Amendments Order, 25 FCC Rcd at 522 ¶ 4. 46 Auction 93 Procedures Public Notice, 26 FCC Rcd at 15492-93 ¶¶ 24-26. 9 23. A party seeking to report such a prohibited communication should consider submitting its report with a request that the report or portions of the submission be withheld from public inspection.47 Any such party is also encouraged to consult with the Auctions and Spectrum Access Division staff if it has any questions about the procedures for submitting such reports.48 The Auction 93 Procedures Public Notice provides additional guidance on procedures for submitting application-related information.49 24. Each applicant that is a winning bidder will be required to disclose in its long-form application the specific terms, conditions, and parties involved in any bidding consortia, joint ventures, partnerships, or other agreements, understandings or arrangements entered into relating to the competitive bidding process.50 Any applicant found to have violated section 1.2105(c) of the Commission’s rules may be subject to sanctions.51 In addition, we remind applicants that they are subject to the antitrust laws, which are designed to prevent anti-competitive behavior in the marketplace. If an applicant is found to have violated the antitrust laws 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.52 25. Ex Parte Rule. Applicants should also be aware that the Commission has generally treated mutually exclusive short-form applications to participate in the auctions process as exempt proceedings and, therefore, not subject to the ex parte prohibitions that pertain to restricted proceedings.53 26. Mock Auction. All applicants found to be qualified bidders will be eligible to participate in a mock auction on Friday, March 23, 2012. The Bureaus encourage all qualified bidders to take advantage of this opportunity to become familiar with the FCC’s Integrated Spectrum Auction System (“ISAS” or “FCC Auction System”). In the public notice announcing the qualified bidders, the Bureaus will announce the bidding schedule for the mock auction. The mock auction will be conducted over the Internet, and telephonic bidding will be available as well. 27. Electronic Bidding. Applicants are reminded that qualified bidders are eligible to bid either electronically or telephonically and should specify their bidding preference on the FCC Form 175, if they have not already done so. 28. Bidders can access the FCC Auction System over the Internet. The following software is required to use the FCC Integrated Spectrum Auction System: 47 See 47 C.F.R. § 0.459 (procedures for requesting that materials or information submitted to the Commission be withheld from public inspection). If an applicant requests confidential treatment of a document, the cover page of the filing must prominently display that the applicant is seeking confidential treatment for that document. 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). 48 See section III. “Contact Information” below. 49 See Auction 93 Procedures Public Notice, 26 FCC Rcd at 15506-08 ¶¶ 77-83. 50 See 47 C.F.R. § 1.2107(d). 51 See 47 C.F.R. §§ 1.2105(c), 1.2107(d), and 1.2109(d). 52 47 C.F.R. § 1.2109(d). 53 See “Commission Announces that Mutually Exclusive ‘Short-Form’ Applications (Form 175) to Participate in Competitive Bidding Process (‘Auctions’) Are Treated as Exempt for Ex Parte Purposes,” Public Notice, FCC 94- 283, 9 FCC Rcd 6760 (1994). See also 47 C.F.R. § 1.1202(d)(1) Note 1. 10 · Web Browser, either of the following is recommended: o Microsoft® Internet Explorer 7.0, with either Microsoft VM or Java Plug-In. o Mozilla® Firefox® 3.5 or later, with Java Plug-In. To obtain the Java Plug-In, point your browser at http://www.oracle.com/technetwork/java/javase/downloads/index.html and click the Download JRE button under Java Platform, Standard Edition. · PDF Viewer: Adobe Acrobat Reader 5.0 or higher (available at http://www.adobe.com) · Minimum Screen Resolution: 1024 x 768 29. Currently, the Apple® Mac OS® is not supported. 30. Post-Auction Procedures. 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 and final payments.54 Winning bidders must submit electronically a properly-completed long-form application (FCC Form 301) and required exhibits for each construction permit won through Auction 93. Further filing instructions will be provided to auction winners at the close of the auction. III. CONTACT INFORMATION 31. For specific questions about an applicant’s incomplete status or its application deficiencies, the applicant should contact the staff reviewer identified in the correspondence sent to the applicant by overnight mail. 32. For further information concerning Auction 93, contact: General Auction Information General Auction Questions Auction Process and Procedures FCC Auctions Hotline (888) 225-5322, option two; or (717) 338-2868 Auction 93 Process and Procedures Auctions and Spectrum Access Division (202) 418-0660 Jeff Crooks (Analyst) Linda Sanderson (Project Manager) Auction 93 Legal Information Auction Rules, Policies, Regulations, including Reports of section 1.2105(c) Violations and Application Modifications Auctions and Spectrum Access Division (202) 418-0660 Lynne Milne (Attorney) 54 For more details on these payments and procedures, see Auction 93 Procedures Public Notice, 26 FCC Rcd at 15522-23 ¶¶ 155-63. 11 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) 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 Auction Payments Instructions for Wiring Upfront Payments and Completion of Form 159 Auctions Accounting Group (202) 418-0578 Gail Glasser (202) 418-0945 Theresa Meeks 33. 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 Governmental Affairs Bureau at (202) 418-0530 or (202) 418-0432 (TTY). –FCC–