[Federal Register: July 24, 2008 (Volume 73, Number 143)]
[Notices]
[Page 43230-43235]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy08-67]
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FEDERAL COMMUNICATIONS COMMISSION
[Report No. AUC-08-85-D (Auction 85); AU Docket No. 08-22; DA 08-460]
Auction of LPTV and TV Translator Digital Companion Channels
Scheduled for November 5, 2008; Announcement of Settlement Period
Ending July 31, 2008; Comment Sought on Competitive Bidding Procedures
for Auction 85
AGENCY: Federal Communications Commission.
ACTION: Notice.
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SUMMARY: This document announces the auction of LPTV and TV Translator
Digital Companion Channel construction permits, with bidding scheduled
to commence on November 5, 2008 (Auction 85). This document also seeks
comments on competitive bidding procedures for Auction 85, and
announces a settlement period that ends on July 31, 2008.
DATES: Comments are due on or before July 31, 2008, and reply comments
are due on or before August 7, 2008.
ADDRESSES: Comments and reply comments must be identified by AU Docket
No. 08-22. Comments may be filed electronically using the Internet by
accessing the Federal Communications Commission's (Commission's)
Electronic Comment Filing System (ECFS) at http://www.fcc.gov/cgb/ecfs.
Filers should follow the instructions provided on the Web site for
submitting comments. The Media and Wireless Telecommunications Bureaus
(Bureaus) request that a copy of all comments and reply comments be
submitted electronically to the following address: auction85@fcc.gov.
In addition, comments and reply comments may be submitted by any of the
following methods:
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
first-class or overnight U.S. Postal Service mail (although the Bureaus
continue to experience delays in receiving 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 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. Eastern Time (ET). All hand
deliveries must be held together with rubber bands or fasteners.
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 should be addressed to 445 12th Street, SW., Washington, DC 20554.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or telephone: 202-
418-0530 or TTY: 202-418-0432.
FOR FURTHER INFORMATION CONTACT: Wireless Telecommunications Bureau,
Auctions and Spectrum Access Division: For auction legal questions:
Lynne
[[Page 43231]]
Milne at 202-418-0660. For general auction questions: Debbie Smith or
Linda Sanderson at 717-338-2868. Media Bureau, Video Division: For
service rule questions: Shaun Maher at 202-418-2324 or Hossein
Hashemzadeh at 202-418-1600.
SUPPLEMENTARY INFORMATION: This is a summary of the Auction 85 Comment
Public Notice released on July 17, 2008. The complete text of the
Auction 85 Comment Public Notice, including attachments, and related
Commission documents, are available for public inspection and copying
from 8 a.m. to 4:30 p.m. ET Monday through Thursday or from 8 a.m. to
11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445
12th Street, SW., Room CY-A257, Washington, DC 20554. The Auction 85
Comment Public Notice and related Commission documents also may be
purchased from the Commission's duplicating contractor, Best Copy and
Printing, Inc. (BCPI), 445 12th Street, SW., Room CY-B402, Washington,
DC 20554, telephone 202-488-5300, facsimile 202-488-5563, or you may
contact BCPI at its Web site: http://www/BCPIWEB.com. When ordering
documents from BCPI, please provide the appropriate FCC document
number, for example, DA 08-460. The Auction 85 Comment Public Notice
and related documents also are available on the Internet at the
Commission's Web site: http://wireless.fcc.gov/auctions/85/, or by
using the search function on the ECFS Web page at http://www/fcc.gov/
cgb/ecfs/.
I. Introduction
1. The Wireless Telecommunications Bureau and the Media Bureau
(collectively, the Bureaus) announce an auction of construction permits
for Low Power Television (LPTV), including Class A Television (TV), and
TV Translator digital companion channels. This auction, which is
designated Auction 85, is scheduled to commence on November 5, 2008.
The Bureaus also seek comment on a variety of auction-specific
procedures for Auction 85. The Bureaus also announce additional
settlement period for applicants to use engineering solutions or
settlements to resolve conflicts among their proposed stations.
II. Construction Permits in Auction 85
2. The construction permits to be auctioned are the subject of
pending, mutually exclusive applications for the referenced broadcast
services for which the Commission has not approved settlement
agreements or engineering amendments. Participation in this auction
will be limited to those applicants for construction permits identified
in Attachment A of the Auction 85 Comment Public Notice. Applicants
will be eligible to bid only on the corresponding construction permits
listed in Attachment A.
3. Attachment A specifies the MX Groups accompanied by their
respective minimum opening bids and upfront payments. In the event that
the Commission approves any settlements pursuant to the settlement
period announced in the Auction 85 Comment Public Notice, certain MX
Groups may be modified or deleted. Any such MX Group changes will be
announced in a future public notice.
4. Attachment A also lists the names of the applicants for
construction permits in each MX Group. For each MX Group identified in
Attachment A, competing applications were filed during the relevant
filing period. All applications within an identified MX Group are
directly mutually exclusive with one another. When two or more short-
form applications (FCC Forms 175) are accepted for filing for a
construction permit within the same MX Group in Auction 85, mutual
exclusivity exists for auction purposes. Therefore, a single
construction permit will be auctioned for each MX Group identified in
Attachment A. Moreover, once mutual exclusivity exists for auction
purposes, then, even if only one application for a particular
construction permit in Auction 85 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 85
and will remain subject to the Commission's anti-collusion rules, but,
having purchased no bidding eligibility, will not be eligible to bid.
III. Settlement Period
5. The Bureaus announce a settlement window beginning with the
release of the Auction 85 Comment Public Notice and ending at 6 p.m.
Eastern Time (ET) on Thursday, July 31, 2008, for parties with
proposals in the mutually exclusive (MX) groups listed in Attachment A
to dismiss their proposals, enter into settlement agreements or
otherwise resolve their mutual exclusivities by means of engineering
solutions. The parties must submit their requests for dismissal or
settlement agreements and/or engineering submissions by the deadline on
July 31, 2008. After approval of the settlement or engineering
submission, the proposed permittee(s) must submit an accurate and
complete FCC Form 346 by the deadline subsequently specified by staff.
6. Applicants must ensure that their settlement agreements comply
with the provisions of 47 U.S.C. 311(c), and the pertinent requirements
of 47 CFR 73.3525, including the reimbursement restrictions. Parties
must submit a copy of their settlement agreement and any ancillary
agreement(s). Parties must submit a joint request for approval of such
agreement. Parties must submit an affidavit of each party to the
agreement setting forth: (a) The reasons why it is considered that such
agreement is in the public interest; (b) A statement that its
application was not filed for the purpose of reaching or carrying out
such agreement; (c) A certification that neither the applicant nor its
principals has received any money or other consideration in excess of
the legitimate and prudent expenses of the applicant; (d) The exact
nature and amount of any consideration paid or promised; (e) An
itemized accounting of the expenses for which it seeks reimbursement;
and (f) The terms of any oral agreement relating to the dismissal or
withdrawal of its application.
7. Applicants that request dismissal of their proposal or file an
engineering amendment that removes the mutual exclusivity to their
proposal without having entered a settlement agreement with another
applicant must nevertheless submit an affidavit as to whether or not
consideration has been promised to or received by such applicant in
connection with their dismissal or engineering amendment. Applicants
may make minor amendments to engineering proposals in order to resolve
mutual exclusivity, but, according to 47 CFR 1.2105(b) and
73.3572(a)(1), applicants are not permitted to propose technical
changes that would be considered a major change.
8. Anti-Collusion Rule. The prohibition of collusion set forth in
47 CFR 1.2105(c) became effective upon the short-form application
filing deadline on June 30, 2006. However, the Commission's rules
provide for a limited opportunity to settle, or otherwise resolve
mutual exclusivities by means of engineering solutions, following the
filing of the short-form applications. Specifically, parties in MX
groups listed in Attachment A may discuss possible settlement
agreements or technical solutions with other parties in their group
during the limited period which commences with the release of the
Auction 85 Comment Public Notice
[[Page 43232]]
and ends at 6 p.m. on July 31, 2008. Once the settlement period ends,
the anti-collusion restrictions once again take effect. The Commission
will proceed to auction with any competing mutually exclusive proposals
that are not resolved by the parties during this settlement period.
9. Settlement agreements that are entered into in connection with
this settlement period must be filed prior to 6 p.m. ET on July 31,
2008, as an attachment to the respective parties' FCC Forms 175 via the
FCC Auction System. All parties to a settlement agreement must attach
the requisite documents to their respective FCC Forms 175. Similarly,
applicants proposing engineering amendments in connection with this
settlement period must do so by amending the technical portion of their
FCC Forms 175 via the FCC Auction System. Engineering amendments also
must be submitted prior to 6 p.m. on July 31, 2008. Late-filed
settlement agreements and engineering amendments will not be accepted.
Applicants are strongly encouraged to file their settlement agreements
and engineering amendments early and are responsible for allowing
adequate time for filing. Information about accessing, viewing,
completing amendments to, and filing settlement agreements for the FCC
Form 175 is included in Attachment B of the Auction 85 Comment Public
Notice.
IV. Bureaus Seek Comment on Auction Procedures
A. Auction Structure
i. Simultaneous Multiple-Round Auction Design
10. The Bureaus propose to auction all construction permits
included in Auction 85 using the Commission's standard simultaneous
multiple-round auction format. Auction 85 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.
ii. Round Structure
11. The Commission will conduct Auction 85 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.
12. The auction will consist of sequential bidding rounds, each
followed by the release of round results. 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 increase or decrease the amount of time for
the bidding rounds, the amount of time between rounds, or the number of
rounds per day, depending upon bidding activity and other factors. 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
and the tradeoffs in managing auction pace by bidding schedule changes,
by changing the activity requirements or bid amount parameters, or by
using other means.
iii. Stopping Rule
13. For Auction 85, 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 permitted).
14. Further, the Bureaus propose to retain the discretion to
exercise any of the following options during Auction 85. (a) Use a
modified version of the simultaneous stopping rule. The modified
stopping rule 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 permitted), or places any new bids 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) Declare that the auction will end after a specified number of
additional rounds. If the Bureaus invoke this special stopping rule,
they will accept bids in the specified final round(s) after which the
auction will close. (c) Keep the auction open even if no bidder places
any new bids, applies a waiver, or withdraws any provisionally winning
bids (if permitted). 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.
15. The Bureaus propose to exercise these options only in certain
circumstances. 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.
iv. Information Relating to Auction Delay, Suspension, or Cancellation
16. For Auction 85, 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. 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
i. Upfront Payments and Bidding Eligibility
17. A bidder's upfront payment is a refundable deposit to establish
eligibility to bid on construction permits. The Bureaus propose the
schedule of upfront payments for each construction permit as set forth
in Attachment A of the Auction 85 Comment Public Notice. The Bureaus
further propose that the amount of the upfront payment submitted by an
applicant will determine the applicant's initial bidding eligibility in
bidding units. The Bureaus seek comment on these proposals.
ii. Activity Rule
18. The Bureaus propose for Auction 85 the following activity
requirement: In each round of the auction, a bidder desiring to
maintain its eligibility to participate in the auction is required to
be active on 100 percent of its bidding eligibility. Failure to
maintain the required activity level will result in the
[[Page 43233]]
use of an activity rule waiver or a reduction in the bidder's bidding
eligibility for the next round of bidding. A bidder's reduced
eligibility for the next round will be equal to the bidder's activity
in the current round. The Bureaus seek comment on this proposal.
19. Commenters that believe that this activity rule should be
modified should explain their reasoning and comment on the desirability
of an alternative approach. Commenters are advised to support their
claims with analyses and suggest alternative activity rules. Comments
may wish to address the alternative of having more than one stage in
the auction, with subsequent stages characterized by increasing
activity requirements, for example, an 80 percent activity requirement
in Stage One and a 95 percent activity requirement in Stage Two.
iii. Activity Rule Waivers and Reducing Eligibility
20. 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 (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 eligibility will be permanently reduced, possibly curtailing or
eliminating the bidder's ability to place additional bids in the
auction.
21. The Bureaus propose that each bidder in Auction 85 be provided
with three activity rule waivers that may be used at the bidder's
discretion during the course of the auction. The Bureaus seek comment
on this proposal.
iv. Reserve Price or Minimum Opening Bids
22. For Auction 85, the Bureaus propose minimum opening bid amounts
determined by taking into account the type of service and class of
facility offered, and the number of potential over-the-air viewers
covered by the proposed LPTV or TV translator broadcast facility. This
proposed minimum opening bid amount for each construction permit
available in Auction 85 is set forth in Attachment A of the Auction 85
Comment Public Notice. The Bureaus do not propose to establish a
separate reserve price for the construction permits to be offered in
Auction 85. The Bureaus seek comment on these proposals.
v. Bid Amounts
23. 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 (if the bidder has sufficient eligibility to place a
bid on the particular construction permit). Under this proposal, the
FCC Auction System interface will list the acceptable bid amounts for
each construction permit.
24. For Auction 85, 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.
25. 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. The Bureaus seek
comment on the circumstances under which the Bureaus should employ such
a limit, factors to be considered 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, and
the bid increment percentage, and 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. The Bureaus
seek comment on these proposals.
vi. Provisionally Winning Bids
26. 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.
vii. Bid Removal and Bid Withdrawal
27. For Auction 85, 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, a bidder removing a bid placed in 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.
28. Where permitted in an auction, bid withdrawals provide a bidder
with the option of removing bids placed in prior rounds that have
become provisionally winning bids. If permitted, a bidder that
withdraws its provisionally winning bid(s) is subject to the bid
withdrawal payment provisions of the Commission rules. For Auction 85,
the Bureaus propose to prohibit bidders from withdrawing any bids after
the round in which bids were placed has closed. The Bureaus seek
comment on this proposal.
C. Post-Auction Payments
i. Interim Withdrawal Payment Percentage
29. If withdrawals are allowed in this auction, the Bureaus seek
comment on the appropriate percentage of a withdrawn bid that should be
assessed as an interim withdrawal payment, in the event that a final
withdrawal payment cannot be determined at the close of the auction. In
general, the Commission's rules provide that a bidder that withdraws a
bid during an auction is subject to a withdrawal payment equal to the
difference between
[[Page 43234]]
the amount of the withdrawn bid and the amount of the winning bid in
the same or a subsequent auction. 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
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. The Commission recently amended its rules to provide that in
advance of the auction, the Commission shall establish a percentage
between three percent and twenty percent of the withdrawn bid to be
assessed as an interim bid withdrawal payment.
30. The Commission has indicated that the level of the interim
withdrawal payment in a particular auction will be based on the nature
of the service and the inventory of the construction permits being
offered. The Commission noted that it may impose a higher interim
withdrawal payment percentage to deter the anti-competitive use of
withdrawals when, for example, bidders likely will not need to
aggregate construction permits offered, such as when few construction
permits are offered, the construction permits offered are not on
adjacent frequencies or in adjacent areas, or there are few synergies
to be captured by combining construction permits.
31. Applying the reasoning that a higher interim withdrawal payment
percentage is appropriate when aggregation of construction permits is
not expected, as with the construction permits subject to competitive
bidding in Auction 85, if the Bureaus allow bid withdrawals in this
auction, the Bureaus propose the maximum interim withdrawal payment
allowed under the current rules. Specifically, the Bureaus propose to
establish an interim bid withdrawal payment of twenty percent of the
withdrawn bid for this auction. The Bureaus seek comment on this
proposal.
ii. Additional Default Payment Percentage
32. 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 CFR
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.
33. For Auction 85, the Bureaus propose to establish an additional
default payment of twenty percent of the relevant bid. The Bureaus seek
comment on this proposal.
V. Due Diligence
34. Potential bidders are reminded that they are solely responsible
for investigating and evaluating all technical and marketplace factors
that may have a bearing on the value of the broadcast facilities they
are seeking in this auction. Applicants are strongly encouraged to
conduct their own research prior to Auction 85 in order to determine
the existence of pending administrative or judicial proceedings that
might affect their decisions regarding participation in the auction.
Prospective bidders should perform due diligence to identify and
consider all proceedings that may affect the digital companion channel
facilities they are seeking. Participants in Auction 85 are strongly
encouraged to continue such research throughout the auction. In
addition, applicants should perform technical analyses sufficient to
assure themselves that, should they prevail in competitive bidding for
a specific construction permit, they will be able to build and operate
facilities that will fully comply with the Commission's technical and
legal requirements.
35. Potential bidders are reminded that digital companion channels
are licensed on a secondary interference basis, and these channels may
be displaced by full-power television stations. In addition, LPTV
stations operating on Channels 52-69 may be displaced by new 700 MHz
operations. Low power displacement applications (both analog and
digital) have processing priority over all other low power
applications, including digital companion channel applications.
Displacement applications may be filed at any time. Therefore, the
pending digital companion channel proposals in Auction 85 may be
affected by newly-filed displacement applications. Bidders should
continue to examine the effect that newly-filed displacement
applications may have on their engineering proposals.
36. Potential bidders for any new television facility in Auction 85
are also reminded that full service television stations are in the
process of converting from analog to digital operation and that
stations may have pending applications to construct and operate digital
television facilities, construction permits and/or licenses for such
digital facilities.
VI. Prohibition of Collusion
37. Applicants for Auction 85 are reminded that they remain subject
to the Commission's anti-collusion rule until the down payment deadline
after the auction, which will be announced in a future public notice.
This prohibition applies to all applicants listed on Attachment A of
the Auction 85 Comment Public Notice regardless of whether such
applicants become qualified bidders or actually bid.
38. Applicants also are reminded that, for purposes of this
prohibition, an applicant is defined as including all officers and
directors of the entity submitting a short-form application to
participate in the auction, all controlling interests of that entity,
as well as all holders of partnership and other ownership interests and
any stock interest amounting to 10 percent or more of the entity, or
outstanding stock, or outstanding voting stock of the entity submitting
a short-form application.
39. Parties subject to the anti-collusion rule are prohibited from
communicating with each other about bids, bidding strategies, or
settlements unless such applicants have identified each other on their
short-form applications (FCC Form 175) as parties with whom they have
entered into agreements pursuant to 47 CFR 1.2105(a)(2)(viii). Thus,
competing applicants must affirmatively avoid all communications with
each other that affect or, in their reasonable assessment, have the
potential to affect, bids or bidding strategy, which may include
communications regarding the post-auction market structure.
40. Applicants are hereby placed on notice that public disclosure
of information relating to bids, bidding strategies, or post auction
market structure may violate the anti-collusion rule. Bidders should
use caution in their dealings with other parties, such as members of
the press, financial analysts, or others who might become a conduit for
the communication of prohibited bidding information. For example, a
qualified bidder's statement to the press that it intends to stop
bidding in the auction could give rise to a finding of an anti-
collusion rule violation. Similarly, a listed applicant's public
[[Page 43235]]
statement of intent not to participate in Auction 85 bidding, including
a request to dismiss an application outside the settlement period,
could also violate the rule.
41. The Bureaus also remind applicants with engineering proposals
filed in the digital companion channel window that are mutually
exclusive that they must not communicate indirectly about bids or
bidding strategy. Accordingly, such applicants are encouraged not to
use the same individual as an authorized bidder. A violation of the
anti-collusion rule could occur if an individual acts as the authorized
bidder for two or more competing applicants, and conveys information
concerning the substance of bids or bidding strategies between such
applicants. Also, if the authorized bidders are different individuals
employed by the same organization, a violation similarly could occur. A
violation of the anti-collusion rule could occur in other contexts,
such as an individual serving as an officer for two or more applicants.
42. Applicants are reminded also that, regardless of compliance
with the Commission's rules, they remain subject to the antitrust laws,
which are designed to prevent anticompetitive behavior in the
marketplace. Compliance with the disclosure requirements of the
Commission's anti-collusion rule will not insulate a party from
enforcement of the antitrust laws.
43. In addition, 47 CFR 1.65 requires an applicant to maintain the
accuracy and completeness of information furnished in its pending
application and to notify the Commission within 30 days of any
substantial change that may be of decisional significance to that
application. Thus, 47 CFR 1.65 requires an auction applicant to notify
the Commission of any substantial change to the information or
certifications included in its pending short-form application.
Applicants are therefore required by 47 CFR 1.65 to make such
notification to the Commission immediately upon discovery.
44. Moreover, 47 CFR 1.2105(c)(6) requires that any applicant that
makes or receives a communication prohibited by Section 1.2105(c) must
report such communication to the Commission in writing immediately, and
in no case later than five business after the communication occurs.
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.
45. Any report of a communication pursuant to 47 CFR 1.65 or
1.2105(c)(6) must be submitted by electronic mail to the following
address: auction85@fcc.gov. The electronic mail report must include a
subject or caption referring to Auction 85 and the name of the
applicant.
46. Parties reporting communications pursuant to 47 CFR
1.2105(a)(2) or 1.2105(c)(6) must take care to ensure that any such
reports of prohibited communications do not themselves give rise to a
violation of the anti-collusion rule. For example, a party's report of
a prohibited communication could violate the rule by communicating
prohibited information to other applicants through the use of
Commission filing procedures that would allow such materials to be made
available for public inspection. A party seeking to report such
prohibited communications should consider submitting its report with a
request that the report or portions of the submission be withheld from
public inspection pursuant to 47 CFR 0.459. Such parties are also
encouraged to coordinate with the Auctions and Spectrum Access Division
staff if they have any questions about the procedures for submitting
such reports.
Federal Communications Commission.
Gary D. Michaels,
Deputy Chief, Auctions and Spectrum Access Division, WTB.
[FR Doc. E8-16964 Filed 7-23-08; 8:45 am]
BILLING CODE 6712-01-P