Federal Communications Commission DA 18-541 DA 18-541 May 25, 2018 AUCTION OF CROSS-SERVICE FM TRANSLATOR CONSTRUCTION PERMITS CLOSES WINNING BIDDERS ANNOUNCED FOR AUCTION 99 Down Payments Due June 11, 2018 Final Payments Due June 25, 2018 FCC Form 349 Filing Window June 1 through July 2, 2018 I. INTRODUCTION 1. On May 18, 2018, bidding concluded in an auction of cross-service FM translator construction permits. This auction, which was designated Auction 99, raised (in net bids) a total of $227,650.00, with 11 bidders winning a total of 11 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 349) filing requirements, and licensing matters. 3. Attachment A to this Public Notice lists each winning bidder and both its winning bid amount and net winning bid amount. The columns are headed with labels briefly describing the information provided. The table is sorted by permit in the first column. For each permit, Attachment A provides the following information under each respective header: · Permit · Permit Description · Bid Round Number · Bidder Name · FRN (bidder’s FCC Registration Number) · Winning Bid Amount · Net Winning Bid Amount 4. Attachment B to this Public Notice lists for each qualified bidder the upfront payment and post-auction payments or refunds due with respect to Auction 99. The amounts listed in Attachment B are based on upfront payments and net winning bid amounts. Each column in the table is headed with a label briefly identifying the information provided. Specifically, for each bidder, the columns in Attachment B provide the following information under each respective header, sorted by bidder name: · Bidder Name · FRN (bidder’s FCC Registration Number) · Upfront Payment Amount · Total Withdrawal Payment Amount (not applicable in Auction 99) · Upfront Payment Balance Remaining · Total Winning Bid Net Amount · Down Payment Amount (20% of Net Winning Bids) · Additional Amount Due After Upfront Payment Balance Applied Due by June 11, 2018 · Final Payment Amount (80% of Net Winning Bids) · Final Balance Due by June 25, 2018 or (Refund) (the Net Payment, minus the Upfront Payment Amount and any Additional Amount Due After Upfront Payment Balance Applied) For a non-winning bidder, this Final Balance amount, which is equal to its Upfront Payment Amount, is shown in parentheses and is available for refund. For a winning bidder, this amount may equal the Final Payment Amount. However, if the Upfront Payment Amount exceeds the Down Payment Amount, that excess will reduce the Final Balance. A copy of this Public Notice will be sent via overnight delivery to each qualified bidder. III. POST-AUCTION PROCEDURES A. Down Payments 5. The Commission’s rules require that within 10 business days after the release of this Public Notice, in this case by 6:00 p.m. Eastern Time (ET) on June 11, 2018, each winning bidder in Auction 99 must have on deposit with the Commission enough funds to cover the down payment on its winning bid(s). 47 CFR § 1.2107(b). Specifically, each winning bidder’s total amount on deposit must be 20 percent of the aggregate net amount of its winning bid. Each winning bidder whose upfront payment is not sufficient to meet this requirement must deposit additional funds to meet its required down payment. Id. 6. The amount due from each winning bidder, if any, is set out in the “Additional Amount Due after Upfront Payment Balance Applied Due by June 11, 2018” column of Attachment B. Note that an additional payment toward the down payment due is necessary only if a winning bidder’s upfront payment does not cover the required total down payment (as reflected in Attachment B). 7. Wire transfers for down payments must be received by the Commission by 6:00 p.m. ET on June 11, 2018. 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 June 11, 2018, it will be in default. See Section III.D., “Default and Disqualification Payments,” below. B. Final Payments 8. Each winning bidder in Auction 99 will be required to submit the balance of the net amount of its winning bid as set out in the “Final Balance Due By June 25, 2018 or (Refund)” column of Attachment B. 47 CFR § 1.2109(a). Each winning bidder must pay the full amount of the Final Balance Due shown in Attachment B by 6:00 p.m. ET on June 25, 2018 (or by 6:00 p.m. ET on July 10, 2018, along with the five percent late fee required by section 1.2109(a) of the Commission’s rules). Id. Note that an additional payment toward the final payment due is necessary only if a winning bidder’s upfront payment does not cover the required total down and final payment (as reflected in Attachment B). 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 application (FCC Form 349). Id. 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). Id. 9. Wire transfers of final payments must be received by the Commission by 6:00 p.m. ET on June 25, 2018 (or by 6:00 p.m. ET on July 10, 2018, along with the five percent late fee required by section 1.2109(a) of the Commission’s rules). Id. If a 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 June 25, 2018 (or by 6:00 p.m. ET on July 10, 2018, along with the five percent late fee), it will be in default. See Section III.D., “Default and Disqualification Payments,” below. C. Method of Payment for Down and Final Payments 10. 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. 11. Each winning bidder is responsible for ensuring timely submission of its payment. 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. See, e.g., Letter to Lee G. Petro, counsel for Four Corners Broadcasting, LLC, from Margaret W. Wiener, Chief, Auctions and Spectrum Access Div., 25 FCC Rcd 9046 (WTB 2010); Letter to David G. O’Neil, counsel for Spectrum Acquisitions, Inc., from Margaret W. Wiener, Chief, Auctions and Spectrum Access Div., 23 FCC Rcd 4765 (WTB 2008); Letter to Patrick Shannon, counsel for Lynch 3G Communications Corp., from Margaret W. Wiener, Chief, Auctions and Industry Analysis Div., 18 FCC Rcd 11552 (WTB 2003). A winning bidder should obtain confirmation from its financial institution that its wire transfer to the U.S. Treasury 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 FCC Revenue & Receivables Operations Group/Auctions at (202) 418-0578, or alternatively, Theresa Meeks at (202) 418-2945. Office of Managing Director (OMD) staff may also be reached through the FCC Auctions Hotline at (888) 225-5322, option two; or (717) 338-2868. 12. Each payer must include certain information in its wire transfer instructions (OBI field) provided to its bank, as described below. In a change of practice from prior auctions, the Commission no longer requires the submission of a completed FCC Remittance Advice Form (Form 159) with down payments or final payments. The Form 159 will continue to be used in future auctions for upfront payments. The Commission will credit any such payments based on the information accompanying the wire transfer. To submit funds by wire transfer, the winning bidder will need to include the following information in its wire transfer instructions: 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 175) PAYMENT TYPE CODE: (“D099”) PAYER NAME CONTACT NAME AND PHONE NUMBER OR E-MAIL ADDRESS 13. With the copy of this Public Notice sent by overnight delivery, each winning bidder that must make a payment to meet its down and/or final payment obligations will be sent a partially completed Form 159, FCC Remittance Advice Form, for each required payment to confirm the amount to be remitted in the wire transfer information, and this Form 159 should be retained for your records. It is not necessary for you to fax or e-mail a copy to the FCC or the U.S. Treasury. Please direct questions concerning the calculation and submission of down payments, final payments, and refunds to Gail Glasser at (202) 418-0578 or Theresa Meeks at (202) 418-2945. OMD staff may also be reached through the FCC Auctions Hotline at (888) 225-5322, option two; or (717) 338-2868. D. Default and Disqualification Payments 14. The Commission imposes payment obligations on bidders that, after an auction closes, default on payments due or are disqualified. 47 CFR § 1.2104(g)(2). E. Bid Default/Disqualification Payments from Auction 99 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), then the defaulting bidder will be subject to the payment obligations described in section 1.2104(g)(2). Id. 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 percentage of the defaulter’s bid or the subsequent winning bid, whichever is less. Id. See also Auction of Cross-Service FM Translator Construction Permits Scheduled for May 15, 2018; Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments and Other Procedures for Auction 99, Public Notice, DA 18-260, paras. 121–23 (Auction 99 Procedures Public Notice). The additional default payment for Auction 99 permits was set at 20 percent of the applicable bid. Auction 99 Procedures Public Notice, DA 18-260, paras. 121-23 16. If a winning bidder fails to remit the required down payment by the down payment deadline specified in this public notice, in this case by June 11, 2018, then 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. 47 CFR §§ 1.2104(g)(2), 1.2109(c). 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, then it will be allowed to make a late payment within 10 business days after the payment deadline, provided that it also pays a late fee equal to five percent of the amount due. Id. §§ 1.2109(a), 73.5003. If a winning bidder fails to pay (a) the balance of its winning bid by the payment deadline on June 25, 2018, or (b) the balance of its winning bid plus the late fee by the late payment deadline on July 10, 2018, then it will be deemed to have defaulted, and it will be subject to applicable default payments. Id. §§ 1.2104(g)(2), 1.2109(a), 1.2109(c). 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. Id. §§ 1.2109(a), 73.5003, 73.5006(d). 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. Id. § 1.2109(d). F. Refund of Excess Payments 20. Upfront monies on deposit that are in excess of an applicant’s Auction 99 obligations may be refunded to the payer of record as identified on the upfront payment wire transfer. 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 FCC auction application system to file its refund information electronically using the Refund Form icon found on the Auction Application Manager page by June 11, 2018. After the required information is completed on the blank form, the form should be printed, signed, and submitted to the Commission by mail or fax as instructed below. 21. After June 11, 2018 or if you have elected not to access the Refund Form through the Auction Application Manager page, the Commission requests that all information listed below be supplied in writing. Name, address, contact and phone number of Bank ABA Number Account Number to Credit Name of Account Holder FCC Registration Number (FRN) 22. The refund request must be submitted by fax to the Revenue & Receivables Operations Group/Auctions at (202) 418-2843 or by mail to: Federal Communications Commission Financial Operations Revenue & Receivables Operations Group/Auctions Gail Glasser 445 12th Street, SW, Room 1-C864 Washington, DC 20554 23. Any questions concerning refunds should be directed to Gail Glasser at (202) 418-0578 or Theresa Meeks at (202) 418-2945. OMD staff may also be reached through the FCC Auctions Hotline at (888) 225-5322, option two; or (717) 338-2868. An applicant seeking a refund should verify that the Tax Identification Number (TIN) associated with its FRN is correct by visiting the FCC Registration Number website at https://apps.fcc.gov/coresWeb/publicHome.do to update its records before submitting a refund request. An FRN with no TIN on file cannot be processed until a TIN is provided. G. FCC Form 349 24. Prior to midnight ET on July 2, 2018, each winning bidder must submit electronically a properly completed long-form application (FCC Form 349, Application for Authority to Construct or Make Changes in an FM Translator or FM Booster Station), including all required exhibits, for the construction permit for which it was the winning bidder in Auction 99. See 47 CFR § 73.5005(a). 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. See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, First Report and Order and Further Notice of Proposed Rule Making, 25 FCC Rcd 1583, 1607-08, paras. 47-48 (2010). The FCC Form 349 filing window will open on June 1, 2018, and close at midnight ET on July 2, 2018. 25. 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. See 47 CFR §§ 1.2104(g), 1.2107(c), 73.5005(c). Each Auction 99 winning bidder must file an accurate and complete long-form application (FCC Form 349) for each construction permit for which it was the winning bidder in Auction 99. The long-form applications must be filed electronically through the Media Bureau’s Consolidated Database System (CDBS) online electronic filing system. For information regarding electronic application filing, refer to Media Bureau Implements Mandatory Electronic Filing of FCC Forms 301-CA, 346, 349 and 350, Public Notice, 17 FCC Rcd 8575 (MB 2002). In accordance with the Commission’s rules, electronic filing of the FCC Form 349 must be accompanied by the appropriate application filing fee. See Implementation of Section 309(j) of the Communications Act – Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Service Licenses, First Report and Order, 13 FCC Rcd 15920, 15984-85, para. 164 (1998) (Broadcast First Report and Order). See also 47 CFR §§ 1.1104, 1.2107(c). If information submitted on the new FCC Form 349 application by the winning bidder indicates that the applicant has effected a major change relative to information reported on the applicant’s short-form application (FCC Form 175), then the long-form application will be dismissed and the applicant will be in default. See 47 CFR §§ 1.2109(c), 73.3522(a)(3), 74.1233(d)(4)(iii). 26. For instructions and technical requirements for using the Media Bureau’s electronic filing system, go to the electronic filing web site at https://licensing.fcc.gov/prod/cdbs/forms/prod/cdbs_ef.htm. In the CDBS Electronic Filing System section of the page, click on the CDBS Electronic Filing User’s Guide link. When filing FCC Form 349, an applicant must select “Long Form Application for Auction 99” on the Pre-form and enter the relevant short-form application file number from CDBS (Question 2). To obtain the short form application file number, go to CDBS Public Access (http://licensing.fcc.gov/prod/cdbs/pubacc/prod/cdbs_pa.htm) and select “Search for Application Information.” In the Application Search page, in “File Number,” enter “BNPFT” in the first box and “20170%” in the second box. Enter the appropriate “Community of License City” and “State.” Then, click on “Submit Application Search” at the bottom of the page. This will provide all of the Auction 99 FM translator applications filed in 2017 for that community of license. In the few instances with multiple allotments in the same community, an applicant can click on the “Info” hyperlinks in the results page to determine which short-form application is applicable to which applicant. For assistance with electronic filing, call the CDBS Help Desk at (202) 418-2662. 27. 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 349 application filing fee electronically using the CDBS filing system in order to avoid processing delays. H. Additional Post-Auction Filing Requirements 28. To file a complete FCC Form 349 application, each Auction 99 winning bidder must submit the post-auction exhibits required by section 73.5005(a) of the Commission’s rules. Specifically, section 73.5005(a) 47 CFR § 73.5005(a). See also Instructions for Form 349, Application for Authority to Construct or Make Changes in an FM Translator, or FM Booster Station, Instructions for Section II: Legal Information, paragraph J. Item 11: Auction Authorization, for auction-related exhibit filing requirements. 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); 47 CFR § 1.2107(d). 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). Id. § 1.2112(a). 29. The Commission’s “red light rule” that implements the Debt Collection Improvement Act will be enforced. Id. § 1.1910. 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. Id.; see also id. § 1.2109(c) (post-auction defaults). I. Maintaining Accuracy of Information 30. After an 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 349). 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 (FCC Form 175) and exhibits. See id. § 1.65. J. Application Processing, Petitions to Deny, and Construction Permit Grant 31. 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, Id. §§ 1.2108(b), 73.5006(b). interested parties will have 15 days from release of that public notice to file petitions to deny the application. Id. § 73.5006. The Media Bureau will use public notices generated by CDBS to start the 15-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 15 days after the filing deadline for petitions to deny its long-form application. Id. § 73.5006(c). Replies must be filed within 10 days after the filing deadline for oppositions to a petition to deny a long-form application. Id. The Commission reminds all parties and their counsel that the Commission intends to use its authority fully to deter the filing of frivolous pleadings. See Commission Taking Tough Measures Against Frivolous Pleadings, Public Notice, 11 FCC Rcd 3030 (1996). 32. 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. For example, in an auction where winning bidders have claimed eligibility for the new entrant bidding credit, Commission staff may determine 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. See 47 CFR § 73.5007(a). If the Commission determines that an applicant is otherwise qualified, that there are no substantial and material issues of fact regarding the applicant’s qualifications to be a Commission licensee, and that no additional payments are due, the Commission will grant the construction permit. See 47 CFR §§ 1.2108(d), 1.2109(a). See also 47 CFR § 73.5006(d). Although we expect applicants to provide complete and accurate information in all filings with the Commission, under our liberal amendment policy we will permit winning bidders to amend their long-form applications—including, as necessary, amendments to resolve site availability issues. See Broadcast First Report and Order, 13 FCC Rcd at 15986-89, paras. 167-76; Mark Lipp, Esq., Letter Decision, 27 FCC Rcd 15190, 15193 (MB 2012); David Oxenford, Esq., Letter Decision, 28 FCC Rcd 6269 (MB 2013). IV. OTHER IMPORTANT INFORMATION A. Maintaining Prohibition on Certain Communications 33. Section 1.2105(c)(1) of the Commission’s rules provides that, subject to specified exceptions, after the deadline for filing a short-form application, “all applicants are prohibited from cooperating or collaborating with respect to, communicating with or disclosing, to each other . . . in any manner the substance of their own, or each other’s, or any other applicants’ bids or bidding strategies (including post-auction market structure), or discussing or negotiating settlement agreements, until after the down payment deadline[.]” 47 CFR § 1.2105(c)(1). See also Updating Part 1 Competitive Bidding Rules, Report and Order, Order on Reconsideration of the First Report and Order, Third Order on Reconsideration of the Second Report and Order, Third Report and Order, 30 FCC Rcd 7493 (2015)(modified by Erratum, 30 FCC Rcd 8518 (WTB 2015)). As explained more fully in the Auction 99 Procedures Public Notice, this prohibition began at the short-form application filing deadline at 6:00 p.m. ET on August 2, 2017, and continues until the down payment deadline, which is 6:00 p.m. ET on June 11, 2018. See Auction 99 Procedures Public Notice, DA 18-260, paras. 9-18. 34. The prohibition on certain communications applies to all applicants in Auction 99, regardless of whether an applicant became a qualified bidder or actually participated in the bidding. See id., paras. 9-11. Note, however, that the Bureaus previously waived section 1.2105(c) of the Commission’s rules with respect to communications between J.J. & B. Broadcasting, Inc. (JJB) and Macon Media, Inc. (Macon), two jointly-owned Auction 99 applicants. See Letter from Albert Shuldiner, Chief, Audio Div., and Margaret Wiener, Chief, Auctions and Spectrum Access Div., to John C. Trent, counsel to JJB and Macon, DA 18-447 (MB/WTB May 1, 2018). Each applicant in this auction certified its compliance with section 1.2105(c) when it filed its short-form application. See 47 CFR § 1.2105(a)(2)(ix). B. Return of SecurID® Tokens 35. 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 June 11, 2018. C. Contact Information 36. 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 349 questions Media Bureau, Audio Division Lisa Scanlan (Attorney) or Tom Nessinger (Attorney), at (202) 418-2700 Auction Payment Information Wire Transfers Refunds FCC Revenue & Receivables Operations Group/Auctions Gail Glasser at (202) 418-0578, or Theresa Meeks at (202) 418-2945, or (202) 4182843 (fax) FCC Auctions Hotline at (888) 225-5322, option two; or (717) 338-2868 Auction 99 Information General Auction Information, Process and Procedures Auction Rules, Policies, and Regulations Auctions and Spectrum Access Division Auctions Hotline, at (717) 338-2722 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 www.fcc.gov/auction/99 www.fcc.gov/mb http://licensing.fcc.gov/prod/cdbs/pubacc/prod/cdbs_pa.htm https://auctiondata.fcc.gov www.fcc.gov - FCC - 9