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 12-600 April 17, 2012 AUCTION OF FM BROADCAST CONSTRUCTION PERMITS CLOSES WINNING BIDDERS ANNOUNCED FOR AUCTION 93 Down Payments Due May 1, 2012 Final Payments Due May 15, 2012 FCC Form 301 Due May 29, 2012 I. INTRODUCTION 1. On April 5, 2012, the Federal Communications Commission completed an auction of 119 construction permits in the FM broadcast service. This auction, which was designated Auction 93, raised (in net bids) a total of $3,826,337.50, with 56 bidders winning a total of 93 construction permits. II. AUCTION RESULTS 2. This Public Notice provides detailed information concerning winning bidders, down payments, final payments, refunds, long-form application (FCC Form 301) filing requirements, and licensing matters. Key information appears in the following attachments: Attachment A: “Winning Bids” lists winning bidders and both their total gross and net winning bid amounts. Attachment B: “Bidder Payment/Refund” lists down payments and final payments owed by winning bidders and refunds due, if any.1 Attachment C: “Default Payment Report” contains default payments based upon reconciliation of final results of Auction 62, Auction 70, and Auction 93. A copy of this Public Notice will be sent via overnight delivery to each qualified bidder. 1 The amounts listed in Attachment B are based on upfront payments and net winning bids. 2 III. POST-AUCTION PROCEDURES A. Down Payments 3. The Commission’s rules require that within ten business days after the release of this Public Notice, in this case by 6:00 p.m. Eastern Time (ET) on May 1, 2012, each winning bidder in Auction 93 must have on deposit with the Commission enough funds to cover the down payment on its winning bid(s).2 Specifically, each winning bidder’s total deposit must be twenty percent of the aggregate net amount of its winning bids. If a winning bidder’s upfront payment is not sufficient to meet this requirement, it must deposit additional funds to meet its required down payment.3 4. The amount due from each winning bidder, if any, is set out in the “Additional Amount Due after Upfront Payment Balance Applied Due by May 1, 2012” column of Attachment B. Note that a payment and FCC Remittance Advice Form (FCC Form 159) are necessary only if a winning bidder’s upfront payment does not cover the required total down payment (as reflected in Attachment B). 5. Wire transfers for down payments must be received by the Commission by 6:00 p.m. ET on May 1, 2012. If a winning bidder fails to complete this down payment process, consistent with the payment method described in this Public Notice, by 6:00 p.m. ET on May 1, 2012, it will be in default.4 B. Final Payments 6. Each winning bidder will be required to submit the balance of the net amount of its winning bid(s) as set out in the “Final Balance Due By May 15, 2012 or (Refund)” column of Attachment B.5 Each winning bidder must pay the full amount of the Final Balance Due shown in Attachment B by 6:00 p.m. ET on May 15, 2012 (or by 6:00 p.m. ET on May 30, 2012, along with the five percent late fee required by section 1.2109(a) of the Commission’s rules).6 Full and timely payment of winning bids and any applicable late fees must be made in accordance with section 1.2109(a) of the Commission’s rules and must occur before action will be taken upon the winning bidder’s long-form applications (FCC Form 301).7 Specifically, construction permits will be granted only after the full and timely payment of winning bids and any applicable late fees, in accordance with section 1.2109(a).8 7. Wire transfers of final payments must be received by the Commission by 6:00 p.m. ET on May 15, 2012 (or by 6:00 p.m. ET on May 30, 2012, along with the five percent late fee required by section 1.2109(a) of the Commission’s rules).9 If the winning bidder fails to complete the final payment, consistent with the payment method described in this Public Notice, by 6:00 p.m. ET on May 15, 2012 (or by 6:00 p.m. ET on May 30, 2012, along with the five percent late fee) it will be in default.10 2 47 C.F.R. § 1.2107(b). 3 Id. 4 See Section III. D., “Default and Disqualification Payments,” below. 5 47 C.F.R. § 1.2109(a). 6 Id. 7 Id. 8 Id. 9 Id. 10 Section III.D., “Default and Disqualification Payments,” below. 3 C. Method of Payment for Down and Final Payments 8. All payments must be in U.S. dollars and made in the form of a wire transfer. No checks, credit card payments, automated clearing house (“ACH”), or other forms of payment will be accepted. Each payment must be accompanied by a completed FCC Form 159.11 A partially-completed copy of the FCC Form 159 for the down payment and for the final payment will be sent to each winning bidder to facilitate submission of the correct payments. 9. Each winning bidder is responsible for ensuring timely submission of its payment and for timely filing accurate and complete FCC Remittance Advice Forms (FCC Form 159). Each winning bidder should coordinate with its financial institution well ahead of the due date regarding its wire transfer and should allow sufficient time for each wire transfer to be initiated and completed prior to the deadline. The Commission repeatedly has cautioned auction participants about the importance of planning ahead to prepare for unforeseen last-minute difficulties in making payments by wire transfer.12 A winning bidder should obtain confirmation from its financial institution that its wire transfer to U.S. Bank was successful. It should also confirm with Commission staff that its payment has been received by the Commission in the proper account by the specified deadline. Such confirmation may be obtained by contacting Gail Glasser of the Office of Managing Director’s Auctions Accounting Group at (202) 418-0578, or Theresa Meeks at (202) 418-2945. 10. Down payments and final payments must be preceded by an accurate and complete FCC Remittance Advice Form (FCC Form 159). At least one hour before placing the order for the wire transfer (but on the same business day), the winning bidder must fax the completed FCC Form 159 to U.S. Bank in St. Louis, Missouri, at (314) 418-4232. Proper completion of the FCC Form 159 is critical to ensuring correct credit of the winning bidder’s deposits. Each winning bidder must use the same FCC Registration Number (FRN) for the applicant that was used in its short-form application (FCC Form 175) on the FCC Form 159. 11. To submit funds by wire transfer, the winning bidder will need the following information: ABA Routing Number: 021030004 Receiving Bank: TREAS NYC 33 Liberty Street New York, NY 10045 ACCOUNT NAME: FCC ACCOUNT NUMBER: 27000001 OBI Field: (Skip one space between each information item) “AUCTIONPAY” APPLICANT FRN: (same as FCC Form 159, block 21) PAYMENT TYPE CODE: (same as FCC Form 159, block 24A: “D093”) PAYER NAME: (same as FCC Form 159, Block 2) LOCKBOX NO.: #979088 11 Copies of the FCC Form 159 may be obtained by calling the Commission’s Forms Distribution Center at (800) 418-3676 (outside Washington, DC) or (202) 418-3676. Copies of the FCC Form 159 can also be obtained via the Internet (http://www.fcc.gov/formpage.html) or by calling from the handset of a fax machine the Commission’s Fax Information System at (202) 418-0177. 12 See, e.g, Letter to Lee G. Petro [Esq.] from Margaret W. Wiener, Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, 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, Wireless Telecommunications Bureau, DA 08- 622, 23 FCC Rcd 4765 (2008). 4 12. Please direct questions concerning the calculation and submission of down payments, final payments, the FCC Form 159, and refunds to Gail Glasser at (202) 418-0578. D. Default and Disqualification Payments 13. The Commission imposes payment obligations on bidders that, after an auction closes, default on payments due or are disqualified.13 14. Because Auction 93 is now closed, the Commission is in a position to calculate a final default payment owed as a result of the default on construction permits won in Auction 62 and Auction 70. Such payments are identified in Attachment C. Forthcoming orders will assess such payments, and will specify due dates for the payment of any such obligations. E. Bid Default/Disqualification Payments from Auction 93 15. If a winning bidder defaults or is disqualified after the close of the auction (i.e., fails to remit the required down payment by the specified deadline, fails to submit a timely long-form application, fails to make full payment of the balance of its winning bid(s) by the specified deadline, or is otherwise disqualified for any reason), the defaulting bidder will be subject to the payment obligations described in section 1.2104(g)(2).14 These payment obligations include both a deficiency payment, equal to the difference between the amount of the defaulter’s bid and the amount of the winning bid the next time a permit or license covering the same spectrum is won in an auction, plus an additional payment equal to a percent of the defaulter’s bid or the subsequent winning bid, whichever is less.15 The additional default payment for Auction 93 permits was set at twenty percent of the applicable bid.16 16. If a winning bidder fails to remit the required down payment within ten business days after the Commission has released this Public Notice, in this case by May 1, 2012, the bidder will be deemed to have defaulted, its long-form application will be dismissed, and it will be liable for a default payment as described above.17 17. If a winning bidder fails to pay the balance of its winning bid in a lump sum by the deadline specified in this public notice, it will be allowed to make a late payment within ten business days after the payment deadline, provided that it also pays a late fee equal to five percent of the amount due.18 If a winning bidder fails to pay (a) the balance of its winning bid by the payment deadline on May 15, 2012, or (b) the balance of its winning bid plus the late fee by the late payment deadline, on May 30, 2012, it will be deemed to have defaulted, and it will be subject to applicable default payments.19 13 See 47 C.F.R. §§ 1.2104(g), 1.2109. 14 47 C.F.R. § 1.2104(g)(2). 15 Id. See also 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, Public Notice, DA 11-1845, 26 FCC Rcd 15484, 15522-23 ¶¶ 159-60 (2011) (“Auction 93 Procedures Public Notice”). 16 Id. 17 47 C.F.R. §§ 1.2104(g)(2), 1.2109(b). 18 47 C.F.R. §§ 1.2109(a), 73.5003. 19 47 C.F.R. §§ 1.2104(g)(2), 1.2109(a), 1.2109(c). 5 18. The Commission will review an applicant’s long-form application only after receipt of full and timely payment for the winning bid amount and any applicable late fees. The relevant construction permit will be granted after determination that the long-form application meets the Commission’s requirements for grant.20 19. A bidder that is found to have violated the antitrust laws or the Commission’s rules in connection with its participation in the competitive bidding process may be subject, in addition to any other applicable sanctions, to forfeiture of its upfront payment, down payment, or full bid amount, and may be prohibited from participating in future auctions.21 F. Refund of Excess Payments 20. Upfront monies on deposit that are in excess of an applicant’s Auction 93 obligations may be refunded to the payer of record as identified on the FCC Form 159. To receive a refund, an applicant must submit a refund request and provide wire transfer instructions. Each applicant can provide this information by using the Commission’s Integrated Spectrum Auction System (“ISAS”) and clicking on the “See Wire Transfer for Refund Purposes” link under the Post-Auction section of the My Auctions web page by May 1, 2012. After this date, an applicant must send a written request for refund, along with the necessary wire transfer instructions and FRN, by fax to Gail Glasser of the Office of the Managing Director at (202) 418-2843 (FAX). Any questions concerning refunds should be referred to Gail Glasser at (202) 418-0578. G. FCC Form 301 21. Prior to midnight ET on May 29, 2012, each winning bidder must submit electronically a properly-completed long-form application (FCC Form 301, Application for Construction Permit for Commercial Broadcast Station), including all required exhibits, for each construction permit for which it was the winning bidder in Auction 93.22 22. An applicant that fails to submit the required long-form application before the specified deadline and fails to establish good cause for any late-filed submission shall be deemed to have defaulted and shall be subject to the payments set forth in section 1.2104(g) of the Commission’s rules.23 Each Auction 93 winning bidder must file an accurate and complete long-form application for each construction permit for which it was the winning bidder in Auction 93. However, a winning bidder that filed FCC Form 301 simultaneously with the Petition for Rule Making or counterproposal to allot the channel for which it submitted the winning bid need only file an amendment to its existing FCC Form 301 application for that channel, if necessary.24 The long-form applications must be filed electronically 20 47 C.F.R. §§ 1.2109(a), 73.5003, 73.5006(d). 21 47 C.F.R. § 1.2109(d). 22 See 47 C.F.R. § 73.5005(a). In 2010, the Commission delegated authority to the Wireless Telecommunications and Media Bureaus, on an auction-by-auction basis, to extend past thirty days the filing deadline for the submission of post-auction long-form applications. 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, 1607-08 ¶¶ 47-48 (2010). 23 See 47 C.F.R. §§ 1.2104(g), 1.2107(c), 73.5005(c). 24 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, 14224 ¶ 20 (2006), recon. pending. 6 through the Media Bureau’s Consolidated Database System (CDBS) online electronic filing system.25 The information submitted on the FCC Form 301 application by the winning bidder may not constitute a major change from any information specified in the winning bidder’s previously-filed FCC Form 175.26 23. For instructions and technical requirements for using the Media Bureau’s electronic filing system, go to the electronic filing web site at http://www.fcc.gov/mb/cdbs.html. In the CDBS Electronic Filing System section of the page, click on the CDBS Electronic Filing User’s Guide link. When filing FCC Form 301, an applicant must select “Long Form Application for Auction 93” on the Pre-form. For assistance with electronic filing, call the CDBS Help Desk at (202) 418-2662. 24. Commission staff will return applications not submitted in accordance with the procedures described in this Public Notice. Applicants are encouraged to pay the FCC Form 301 application filing fee electronically using the CDBS filing system in order to avoid processing delays. H. Additional Post-Auction Filing Requirements 25. When filing complete FCC Form 301 applications, each Auction 93 winning bidder must submit the post-auction exhibits required by section 73.5005(a) of the Commission’s rules. Specifically, section 73.5005(a)27 requires that post-auction long-form applications include the exhibits mandated by section 1.2107(d) (providing a detailed explanation of the terms, conditions, and parties involved in any bidding consortium, joint venture, partnership, or other agreement or arrangement the applicant had entered into relating to the competitive bidding process);28 section 1.2110(j) (requiring an applicant claiming bidding credit eligibility to describe how it satisfies the eligibility requirements for such bidding credit, and to list and summarize all agreements that affect such status, such as partnership agreements, shareholder agreements, management agreements, resale arrangements, and any other agreements, including oral agreements, that establish that the auction applicant will have both de facto and de jure control of the entity);29 and section 1.2112(a) (requiring that each long-form application fully disclose ownership information and the real party or parties in interest in the applicant or application).30 26. An applicant claiming new entrant bidding credit eligibility must also provide information establishing its eligibility in its long-form application,31 including, where relevant, the submission of a response to the multiple ownership question on Form 301.32 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. The Commission also attributes the media interests held by substantial investors in, or creditors of, an 25 For information regarding electronic application filing, refer to “Mass Media Bureau Implements Mandatory Electronic Filing of FCC Forms 301, 314, and 315,” Public Notice, DA 01-283, 16 FCC Rcd 3989 (MMB 2001). 26 See 47 C.F.R. §§ 73.3522, 73.3573. 27 47 C.F.R. § 73.5005(a). See also Instructions for Form 301, Application for Construction Permit for Commercial Broadcast Station, Instructions for Section II: Legal Information, paragraph G. Item 10: Auction Authorization for auction-related exhibit filing requirements. 28 47 C.F.R. § 1.2107(d). 29 47 C.F.R. § 73.5007(a). 30 47 C.F.R. § 1.2112(a). 31 47 C.F.R. §§ 73.3555, Note 2, 73.5007, 73.5008. 32 See Form 301, Section II – Legal, Item 4: Multiple Ownership. 7 applicant claiming new entrant status.33 Specifically, the attributable mass media interests held by an individual or entity with an equity and/or debt interest in an applicant are 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.34 However, the relaxed equity/debt plus attribution standard for “eligible entities”35 as the basis for the new entrant bidding credit is unavailable in Auction 93.36 27. The Commission’s “red light rule” implementing the Debt Collection Improvement Act will be enforced.37 Under the red light rule, the Commission will not process applications or other requests for benefits filed by parties that have outstanding debts owed to the Commission.38 I. Maintaining Accuracy of Information 28. After the auction closes, all required changes to an applicant’s information must be made by filing or amending the applicant’s long-form application(s) (FCC Form 301). With the release of this Public Notice, applicants are no longer required to maintain the accuracy and completeness of information furnished on their short-form applications and exhibits.39 J. Application Processing, Petitions to Deny and Construction Permit Grant 29. After its initial review of the long-form applications, the Media Bureau will issue public notices listing the applications as they are accepted for filing. Pursuant to sections 1.2108(b) and 73.5006 of the Commission’s rules,40 interested parties will have ten days from release of that public notice to file petitions to deny the application.41 The Media Bureau will use public notices generated by CDBS to start the ten-day period for filing petitions to deny. A public notice entitled “Broadcast Applications” will list such applications as “Accepted for Filing.” An applicant may file an opposition to any petition to deny within five days after the filing deadline for petitions to deny its long-form application.42 Replies must be filed within five days after the filing deadline for oppositions to a petition 33 47 C.F.R. § 73.5008(c) (attribution of mass media interests). 34 Id. See also Instructions for Form 301, Application for Construction Permit for Commercial Broadcast Station, Instructions for Section II – Legal Information, paragraph B. Item 2: Parties to the Application; Equity/Debt Plus Attribution Standard. 35 In the Diversity Order, the Commission relaxed the equity/debt plus attribution standard, to allow for higher investment opportunities in an entity meeting the definition of an “eligible entity.” Promoting Diversification of Ownership in the Broadcasting Services, MB Docket No. 07-294, Report and Order and Third Further Notice of Proposed Rule Making, FCC 07-217, 23 FCC Rcd 5922 (2008). 36 See Auction 93 Procedures Public Notice, 26 FCC Rcd at 15501-02 ¶ 61. See also Media Bureau Provides Notice of Suspension of Eligible Entity Rule Changes and Guidance on the Assignment of Broadcast Station Construction Permits to Eligible Entities, DA 11-1232, Public Notice, 26 FCC Rcd 10370 (MB 2011). 37 47 C.F.R. § 1.1910. 38 Id.; see also 47 C.F.R. § 1.2109(c) (post-auction defaults). 39 See 47 C.F.R. § 1.65. 40 47 C.F.R. §§ 1.2108(b), 73.5006(b). 41 47 C.F.R. § 73.5006. 42 47 C.F.R. § 73.5006(c). 8 to deny a long-form application.43 The Commission reminds all parties and their counsel that the Commission intends to use its authority fully to deter the filing of frivolous pleadings.44 30. After the long-form application review process, if the Commission determines that additional payment from an applicant is due, the Media Bureau will provide further instructions in a future public notice or by demand letter. 45 If the Commission determines that an applicant is otherwise qualified, that there are no substantial and material issues of fact, and that no additional payments are due, the Commission will grant the construction permit.46 IV. OTHER IMPORTANT INFORMATION A. Maintaining Prohibition on Certain Communications 31. To ensure the competitiveness of the auction process, the Commission’s rules prohibit 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 as parties with whom they have entered into agreements under section 1.2105(a)(2)(viii).47 As explained more fully in the Auction 93 Procedures Public Notice, this prohibition began at the short-form application filing deadline at 6:00 p.m. ET on January 12, 2012, and continues until the down payment deadline, which is 6:00 p.m. ET on May 1, 2012.48 32. The prohibition on certain communications applies to all applicants in Auction 93 (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)), regardless of whether an applicant became a qualified bidder or actually participated in the bidding.49 This prohibition continues for all applicants until the down payment deadline regardless of whether an applicant is a winning bidder or needs to make an additional payment by the down payment deadline.50 Each applicant in this auction certified its compliance with section 1.2105(c) when it filed its short-form application.51 43 Id. 44 See Commission Taking Tough Measures Against Frivolous Pleadings, Public Notice, FCC 96-42, 11 FCC Rcd 3030 (1996). 45 Commission staff may determine, for example, that a winning bidder is not entitled to the level of bidding credit that it has claimed and may require an additional payment to cover the amount of any percentage discount for which it was not eligible. 46 See 47 C.F.R. §§ 1.2108(d), 1.2109(a). See also 47 C.F.R. § 73.5006(d). 47 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 17,546 (2001); 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 15,293, 15,297-98 ¶¶ 7-8 (2000). 48 See Auction 93 Procedures Public Notice, 26 FCC Rcd at 15490 ¶ 14. See also Auction of FM Broadcast Construction Permits, 109 Bidders Qualified to Participate in Auction 93, Public Notice, DA 12-374 (WTB/MB rel. March 14, 2012). 49 See Auction 93 Procedures Public Notice, 26 FCC Rcd at 15488-93 ¶¶ 8-28. 50 Id., 26 FCC Rcd at 15490 ¶ 14. 51 See 47 C.F.R. § 1.2105(a)(2)(ix). 9 B. Return of SecurID® Tokens 33. The SecurID® tokens distributed to qualified bidders are tailored to this auction and will not work for future auctions. The Commission will send each bidder, along with a copy of this Public Notice, a pre-addressed, stamped envelope to return its SecurID® tokens. Each bidder should return its SecurID® tokens to the Commission for recycling by May 1, 2012. C. Contact Information 34. For further information, contact: News Media Wireless Telecommunications Bureau Cecilia Sulhoff at (202) 418-0587 Media Bureau Janice Wise at (202) 418-8165 Licensing Information Service Rules, Policies, Regulations Licensing Issues, Engineering Issues Due Diligence, Incumbency Issues, FCC Form 301 questions Media Bureau, Audio Division Lisa Scanlan (Attorney) or Tom Nessinger (Attorney), at (202) 418-2700 Auction Payment Information Wire Transfers Refunds FCC Auctions Accounting Branch Gail Glasser at (202) 418-0578, or alternatively, Theresa Meeks at (202) 418-2945, or (202) 418-2843 (fax) Auction 93 Information General Auction Information, Process, and Procedures Auction Rules, Policies, and Regulations Auctions and Spectrum Access Division Linda Sanderson, Project Manager, or Jeff Crooks, Auction Analyst, at (202) 418-0660 Lynne Milne, Attorney, at (202) 418-0660 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://www.fcc.gov/mb/cdbs.html - FCC -